Rules and Regulations. Final special conditions

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BILLING CODE 3410-02-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. NM375 Special Conditions No. 25-359-SC] Special Conditions: Boeing Model 787-8 Airplane; Lithium Ion Battery Installation AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions. SUMMARY: These special conditions are issued for the Boeing Model 787-8 airplane. This airplane will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes.

The Boeing Model 787-8 airplanes will use high capacity lithium ion battery technology in on-board systems. For these design features, the applicable airworthiness regulations do not contain adequate or appropriate safety standards. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing standards. Additional special conditions will be issued for other novel or unusual design features of the Boeing Model 787-8 airplanes.

DATES: *Effective Date:* November 13, 2007. FOR FURTHER INFORMATION CONTACT: Nazih Khaouly, FAA, Airplane and Flight Crew Interface, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-2432; facsimile

(425)227-1149. SUPPLEMENTARY INFORMATION: Background On March 28, 2003, Boeing applied for an FAA type certificate for its new Boeing Model 787-8 passenger airplane. The Boeing Model 787-8 airplane will be an all-new, two-engine jet transport airplane with a two-aisle cabin. The maximum takeoff weight will be 476,000 pounds, with a maximum passenger count of 381 passengers. Type Certification Basis Under provisions of 14 Code of Federal Regulations

(APU)Battery/Battery Charger System. • Flight Control Electronics. • Emergency Lighting System. • Recorder Independent Power Supply. Large, high capacity, rechargeable lithium ion batteries are a novel or unusual design feature in transport category airplanes. This type of battery has certain failure, operational, and maintenance characteristics that differ significantly from those of the nickel-cadmium and lead-acid rechargeable batteries currently approved for installation on large transport category airplanes. The FAA issues these special conditions to require that

(1)all characteristics of the lithium ion battery and its installation that could affect safe operation of the 787 are addressed, and

(2)appropriate maintenance requirements are established to ensure the availability of electrical power from the batteries when needed. Background The current regulations governing installation of batteries in large transport category airplanes were derived from Civil Air Regulations

(CAR)part 4b.625(d) as part of the re-codification of CAR 4b that established 14 CFR part 25 in February, 1965. The new battery requirements, 14 CFR 25.1353(c)(1) through (c)(4), basically reworded the CAR requirements. Increased use of nickel-cadmium batteries in small airplanes resulted in increased incidents of battery fires and failures. This led to additional rulemaking affecting large transport category airplanes as well as small airplanes. On September 1, 1977, and March 1, 1978, respectively, the FAA issued 14 CFR 25.1353c(5) and c(6), governing nickel-cadmium battery installations on large transport category airplanes. The proposed use of lithium ion batteries for the emergency lighting system on the 787 has prompted the FAA to review the adequacy of these existing regulations. Our review indicates that existing regulations do not adequately address several failure, operational, and maintenance characteristics of lithium ion batteries that could affect the safety and reliability of the 787's lithium ion battery installations. At present, there is limited experience with use of rechargeable lithium ion batteries in applications involving commercial aviation. However, other users of this technology, ranging from wireless telephone manufacturing to the electric vehicle industry, have noted safety problems with lithium ion batteries. These problems include overcharging, over-discharging, and flammability of cell components. 1. Overcharging In general, lithium ion batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (thermal runaway) than their nickel-cadmium or lead-acid counterparts. This is especially true for overcharging, which causes heating and destabilization of the components of the cell, leading to formation (by plating) of highly unstable metallic lithium. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion. Finally, the severity of thermal runaway from overcharging increases with increasing battery capacity, because of the higher amount of electrolytes in large batteries. 2. Over-Discharging Discharge of some types of lithium ion batteries beyond a certain voltage (typically 2.4 volts) can cause corrosion of the electrodes of the cell, resulting in loss of battery capacity that cannot be reversed by recharging. This loss of capacity may not be detected by the simple voltage measurements commonly available to flightcrews as a means of checking battery status. This is a problem shared with nickel-cadmium batteries. 3. Flammability of Cell Components Unlike nickel-cadmium and lead-acid batteries, some types of lithium ion batteries use liquid electrolytes that are flammable. The electrolytes can serve as a source of fuel for an external fire, if there is a breach of the battery container. These problems experienced by users of lithium ion batteries raise concern about use of these batteries in commercial aviation. The intent of these special conditions is to establish appropriate airworthiness standards for lithium ion battery installations in the 787 and to ensure, as required by 14 CFR 25.601, that these battery installations are not hazardous or unreliable. To address these concerns, these special conditions adopt the following requirements: • Those sections of 14 CFR 25.1353 that are applicable to lithium ion batteries. • The flammable fluid fire protection requirements of 14 CFR 25.863. In the past, this rule was not applied to batteries of transport category airplanes, since the electrolytes used in lead-acid and nickel-cadmium batteries are not flammable. • New requirements to address the hazards of overcharging and over-discharging that are unique to lithium ion batteries. • New maintenance requirements to ensure that batteries used as spares are maintained in an appropriate state of charge. These special conditions are similar to special conditions adopted for the Airbus A380 (71 FR 74755; December 13, 2006). Discussion of Comments Notice of Proposed Special Conditions No. 25-07-10-SC for the 787 was published in the **Federal Register** on April 30, 2007 (72 FR 21162). We received comments from the Air Line Pilots Association, International, which are discussed below. The Air Line Pilots Association

(ALPA)conditionally supports the FAA's proposal for special conditions for lithium ion batteries on the 787 aircraft, but “strongly maintains that there need to be adequate protections and procedures in place to ensure that concerns regarding lithium ion batteries are fully addressed and protected against.” Appended to the ALPA comments was a copy of FAA report DOT/FAA/AR-06/38, September 2006, Flammability Assessment of Bulk-Packed, Rechargeable Lithium-Ion Cells In Transport Category Aircraft. With the knowledge of the safety hazards described in the appended report and by others, ALPA requested that the FAA consider the specific concerns discussed below. • *ALPA Comment re Special Condition (3):* The commenter requested that paragraph 3 of the special conditions be revised to ensure that the certification design of the 787 prevents explosive or toxic gases emitted by a lithium ion battery from entering the cabin. The commenter also requested that the FAA ensure that flightcrew procedures and training are adequate to protect both passengers and crew, if explosive or toxic gases do enter the cabin. *FAA Response:* 14 CFR 25.857 prohibits hazardous quantities of smoke, flames, or extinguishing agents from cargo compartments from entering any compartment occupied by the crew or passengers. Paragraph

(3)of these special conditions specifies that No explosive or toxic gases emitted by any lithium ion battery in normal operation, or as the result of any failure of the battery charging system, monitoring system, or battery installation not shown to be extremely remote, may accumulate in hazardous quantities within the airplane. The special conditions require that any explosive or toxic gases emitted by a lithium ion battery be limited to less than hazardous quantities everywhere on the airplane. The FAA does not expect the need for additional training above and beyond the training that crews receive today. We made no change to these special conditions as a result of this comment. • *ALPA Comment re Special Condition (4):* The commenter stated, We are very concerned with a fire erupting in flight, and being able to rapidly extinguish it. The Special Conditions should require that there be a means provided to apply extinguishing agents by the flight (cabin) crew instead of promoting it as an option in managing the threat posed by the use of lithium-ion batteries. ALPA maintains that the petitioner must provide means for extinguishing fires that occur vs. listing it as an option in § 25.863. ALPA clarified this comment in the following communication, sent by e-mail on August 10, 2007. The intent of our comments submitted to the Docket for question [Special Condition] Number 4 (see below) is to assure that the FAA includes language or makes it clear in the Special Conditions directing the OEM or a potential STC applicant that a fire from these devices, in any situation, is unacceptable. ALPA requests the FAA reiterate that preventing a fire and not reacting to one, if one occurs, is critical. The last sentence of our comments in this Question [Special Condition] refers to the potential for an “equivalent level of safety” being introduced or referenced in the document that would negate the prevention of a fire; ALPA finds this “option” unacceptable. *(4) Installations of lithium ion batteries must meet the requirements of 14 CFR 25.863(a) through (d).* The proposal states that the certification requirements of § 25.283 [§ 25.863] must be complied with; however, the FAA report (FAA report DOT/FAA/AR-06/38, September 2006) indicates that a relatively small fire source is sufficient to heat the lithium-ion cell above the temperature required to activate the pressure release mechanism in the cell. This causes the cell to forcefully vent its electrolyte through the relief ports near the positive terminal. The electrolyte is highly flammable and easily ignites when exposed to an open flame or hot surface. Fully charged cells released small white sparks along with the electrolyte. *FAA Response:* The FAA shares the commenter's concern over a fire erupting in flight. The regulations and the rigid requirements defined in these special conditions are intended to prevent lithium battery fires on board the aircraft. We have made no change as a result of this comment. • *ALPA Comment re Special Condition (7):* The commenter suggested that the special conditions address means to ensure that the lithium ion batteries do not overheat or overcharge in the event of failure or malfunction of the automatic disconnect function, when a means of disconnecting the batteries from the charging source is not available. *FAA Response:* The FAA agrees with the commenter. Special Condition

(7)requires means to prevent overheating or overcharging of lithium ion batteries in the event of failure or malfunction of the automatic disconnect function. The issue of failure modes of the lithium ion batteries is covered by Special Conditions (1), (2), and (6). We made no change as a result of this comment. • *ALPA Comment re Special Condition (8):* Finally, ALPA commented on monitoring and warning features that will indicate when the state-of-charge of the batteries has fallen below levels considered acceptable for dispatch of the airplane. The commenter suggested that the special conditions address the location of the warning indication; whether it is displayed to the captain, the crew, or both; and the training to be incorporated in the crew training programs. *FAA Response:* Flight deck warning indicators associated with the state-of-charge of the lithium ion battery and appropriate training of the crew will be addressed during certification as part of the flight deck evaluation. As required by § 25.1309(c), this evaluation will ensure that the warning indication is effective and appropriate for the hazard. We made no change as a result of this comment. These special conditions are issued as proposed. Applicability As discussed above, these special conditions are applicable to the 787. Should Boeing apply at a later date for a change to the type certificate to include another model on the same type certificate incorporating the same novel or unusual design features, these special conditions would apply to that model as well. Conclusion This action affects only certain novel or unusual design features of the 787. It is not a rule of general applicability. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 787-8 airplane. In lieu of the requirements of 14 CFR 25.1353(c)(1) through (c)(4), the following special conditions apply. Lithium ion batteries on the Boeing Model 787-8 airplane must be designed and installed as follows:

(1)Safe cell temperatures and pressures must be maintained during any foreseeable charging or discharging condition and during any failure of the charging or battery monitoring system not shown to be extremely remote. The lithium ion battery installation must preclude explosion in the event of those failures.

(2)Design of the lithium ion batteries must preclude the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.

(3)No explosive or toxic gases emitted by any lithium ion battery in normal operation, or as the result of any failure of the battery charging system, monitoring system, or battery installation not shown to be extremely remote, may accumulate in hazardous quantities within the airplane.

(4)Installations of lithium ion batteries must meet the requirements of 14 CFR 25.863(a) through (d).

(5)No corrosive fluids or gases that may escape from any lithium ion battery may damage surrounding structure or any adjacent systems, equipment, or electrical wiring of the airplane in such a way as to cause a major or more severe failure condition, in accordance with 14 CFR 25.1309(b) and applicable regulatory guidance.

(6)Each lithium ion battery installation must have provisions to prevent any hazardous effect on structure or essential systems caused by the maximum amount of heat the battery can generate during a short circuit of the battery or of its individual cells.

(7)Lithium ion battery installations must have a system to control the charging rate of the battery automatically, so as to prevent battery overheating or overcharging, and,

(i)A battery temperature sensing and over-temperature warning system with a means for automatically disconnecting the battery from its charging source in the event of an over-temperature condition, or,

(ii)A battery failure sensing and warning system with a means for automatically disconnecting the battery from its charging source in the event of battery failure.

(8)Any lithium ion battery installation whose function is required for safe operation of the airplane must incorporate a monitoring and warning feature that will provide an indication to the appropriate flight crewmembers whenever the state-of-charge of the batteries has fallen below levels considered acceptable for dispatch of the airplane.

(9)The Instructions for Continued Airworthiness required by 14 CFR 25.1529 must contain maintenance requirements for measurements of battery capacity at appropriate intervals to ensure that batteries whose function is required for safe operation of the airplane will perform their intended function as long as the battery is installed in the airplane. The Instructions for Continued Airworthiness must also contain procedures for the maintenance of lithium ion batteries in spares storage to prevent the replacement of batteries whose function is required for safe operation of the airplane with batteries that have experienced degraded charge retention ability or other damage due to prolonged storage at a low state of charge. Note: These special conditions are not intended to replace 14 CFR 25.1353(c) in the certification basis of the Boeing 787-8 airplane. These special conditions apply only to lithium ion batteries and their installations. The requirements of 14 CFR 25.1353(c) remain in effect for batteries and battery installations of the Boeing 787-8 airplane that do not use lithium ion batteries. Issued in Renton, Washington, on September 28, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-19980 Filed 10-10-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. NM366 Special Conditions No. 25-348-SC] Special Conditions: Boeing Model 787-8 Airplane; Composite Wing and Fuel Tank Structure—Fire Protection Requirements AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions. SUMMARY: These special conditions are issued for the Boeing Model 787-8 airplane. This airplane will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. These novel or unusual design features are associated with composite materials chosen for the construction of the fuel tank skin and structure. For these design features, the applicable airworthiness regulations do not contain adequate or appropriate safety standards for wing and fuel tank structure with respect to postcrash fire safety. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing standards. We will issue additional special conditions for other novel or unusual design features of the Boeing Model 787-8 airplanes. DATES: *Effective Date:* November 13, 2007. FOR FURTHER INFORMATION CONTACT: Mike Dostert, FAA, Propulsion/Mechanical Systems, ANM-112, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-2132; facsimile

(425)227-1320. SUPPLEMENTARY INFORMATION: Background On March 28, 2003, Boeing applied for an FAA type certificate for its new Boeing Model 787-8 passenger airplane. The Boeing Model 787-8 airplane will be an all-new, two-engine jet transport airplane with a two-aisle cabin. The maximum takeoff weight will be 476,000 pounds, with a maximum passenger count of 381 passengers. Type Certification Basis Under provisions of Title 14 Code of Federal Regulations

(CFR)21.17, Boeing must show that Boeing Model 787-8 airplanes (hereafter referred to as “the 787”) meet the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-117, except §§ 25.809(a) and 25.812, which will remain at Amendment 25-115. If the Administrator finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for the 787 because of a novel or unusual design feature, special conditions are prescribed under provisions of 14 CFR 21.16. In addition to the applicable airworthiness regulations and special conditions, the 787 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA must also issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.” The FAA issues special conditions, as defined in 14 CFR 11.19, under § 11.38, and they become part of the type certification basis under § 21.17(a)(2). Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101. Novel or Unusual Design Features The 787 will incorporate a number of novel or unusual design features. Because of rapid improvements in airplane technology, the applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions for the 787 contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. The 787 will be the first large transport category airplane not built mainly with aluminum materials for the fuel tank structure. Instead it will use chiefly composite materials for the structural elements and skin of the wings and fuel tanks. Conventional airplanes with aluminum skin and structure provide a well understood level of safety during postcrash fires with respect to fuel tanks. This is based on service history and extensive full-scale fire testing. Composites may or may not have capabilities equivalent to aluminum, and current regulations do not provide objective performance requirements for wing and fuel tank structure with respect to postcrash fire safety. Use of composite structure is new and novel compared to the designs envisioned when the applicable regulations were written. Because of this, Boeing must present additional confirmation by test and analysis that the 787 provides an acceptable level of safety with respect to the performance of the wings and fuel tanks during an external fuel-fed fire. Although the FAA has previously approved fuel tanks made of composite materials that are located in the horizontal stabilizer of some airplanes, the composite wing structure of the 787 will introduce a new fuel tank construction into service. Advisory Circular

(AC)20-107A, Composite Aircraft Structure, under the topic of flammability, states: “The existing requirements for flammability and fire protection of aircraft structure attempt to minimize the hazard to the occupants in the event ignition of flammable fluids or vapors occurs. The use of composite structure should not decrease this existing level of safety.” The relevance to the wing structure is that postcrash fire passenger survivability is dependent on the time available for passenger evacuation before fuel tank breach or structural failure. Structural failure can be a result of degradation in load-carrying capability in the upper or lower wing surface caused by a fuel-fed ground fire. Structural failure can also be a result of over-pressurization caused by ignition of fuel vapors in the fuel tank. The FAA has historically developed rules with the assumption that the material of construction for wing and fuselage would be aluminum. As a representative case, § 25.963 was developed because of a large fuel-fed fire following the failures of fuel tank access doors caused by uncontained engine failures. During the subsequent Aviation Rulemaking Advisory Committee

(ARAC)harmonization process with the JAA, 1 the structures group tried to harmonize the requirements of § 25.963 for impact and fire resistance of fuel tank access panels. Both authorities recognized that existing aluminum wing structure provided an acceptable level of safety. Further rulemaking has not yet been pursued. 1 The JAA is the Joint Aviation Authority of Europe and the JAR is its Joint Aviation Requirements, the equivalent of our Federal Aviation Regulations. In 2003, the European Aviation Safety Agency

(EASA)was formed, and EASA is now the principal aviation regulatory agency in Europe. We intend to work with EASA to ensure that our rules are also harmonized with its Certification Specifications (CS). But since these efforts in developing harmonization of § 25.963 occurred before EASA was formed, it was the JAA that was involved with them. As with previous Boeing airplane designs with underwing mounted engines, the wing tanks and center tanks are located in proximity to the passengers and near the engines. Experience indicates postcrash survivability is greatly influenced by the size and intensity of any fire that occurs. The ability of aluminum wing surfaces wetted by fuel on their interior surface to withstand postcrash fire conditions has been shown by tests conducted at the FAA Technical Center. These tests have verified adequate dissipation of heat across wetted aluminum fuel tank surfaces so that localized hot spots do not occur, thus minimizing the threat of explosion. This inherent capability of aluminum to dissipate heat also allows the wing lower surface to retain its load carrying characteristics during a fuel-fed ground fire. It significantly delays wing collapse or burn-through for a time interval that usually exceeds evacuation times. In addition, as an aluminum fuel tank is heated with significant quantities of fuel inside, fuel vapor accumulates in the ullage space, exceeding the upper flammability limit relatively quickly and thus reducing the threat of a fuel tank explosion prior to fuel tank burn-through. Service history of conventional aluminum airplanes has shown that fuel tank explosions caused by ground fires have been rare on airplanes configured with flame arrestors in the fuel tank vent lines. Fuel tanks constructed with composite materials may or may not have equivalent capability. Current regulations were developed and have evolved under the assumption that wing construction would be of aluminum materials, which provide inherent properties. Current regulations may not be adequate when applied to airplanes constructed of different materials. Aluminum has the following properties with respect to fuel tanks and fuel-fed external fires. • Aluminum is highly thermally conductive. It readily transmits the heat of a fuel-fed external fire to fuel in the tank. This has the benefit of rapidly driving the fuel tank ullage to exceed the upper flammability limit prior to burn-through of the fuel tank skin or heating of the wing upper surface above the auto-ignition temperature. This greatly reduces the threat of fuel tank explosion. • Aluminum panels at thicknesses previously used in wing lower surfaces of large transport category airplanes have been fire resistant as defined in 14 CFR part 1 and AC 20-135. • The heat absorption capacity of aluminum and fuel will prevent burn-through or wing collapse for a time interval that will generally exceed the passenger evacuation time. The extensive use of composite materials in the design of the 787 wing and fuel tank structure is considered a major change from conventional and traditional methods of construction. This will be the first large transport category airplane to be certificated with this level of composite material for these purposes. The applicable airworthiness regulations do not contain specific standards for postcrash fire safety performance of wing and fuel tank skin or structure. Discussion of Special Conditions In order to provide the same level of safety as exists with conventional airplane construction, Boeing must demonstrate that the 787 has sufficient postcrash survivability to enable occupants to safely evacuate in the event that the wings are exposed to a large fuel-fed fire. Factors in fuel tank survivability are the structural integrity of the wing and tank, flammability of the tank, burn-through resistance of the wing skin, and the presence of auto-ignition threats during exposure to a fire. The FAA assessed postcrash survival time during the adoption of Amendment 25-111 for fuselage burn-through protection. Studies conducted by and on behalf of the FAA indicated that, following a survivable accident, prevention of fuselage burn-through for approximately 5 minutes can significantly enhance survivability. (See report numbers DOT/FAA/AR-99/57 and DOT/FAA/AR-02/49.) There is little benefit in requiring the design to prevent wing skin burn-through beyond five minutes, due to the effects of the fuel fire itself on the rest of the airplane. That assessment was carried out based on accidents involving airplanes with conventional fuel tanks, and considering the ability of ground personnel to rescue occupants. In addition, AC 20-135 indicates that, when aluminum is used for fuel tanks, the tank should withstand the effects of fire for 5 minutes without failure. Therefore, to be consistent with existing capability and related requirements, the 787 fuel tanks must be capable of resisting a postcrash fire for at least 5 minutes. In demonstrating compliance, Boeing must address a range of fuel loads from minimum to maximum, as well as any other critical fuel load. Discussion of Comments Notice of Proposed Special Conditions No. 25-07-03-SC for the 787 was published in the **Federal Register** on April 9, 2007 (72 FR 17441). Two comments were received from the Air Line Pilots Association, International (ALPA), two from Airbus, and several from members of the public. *Comment 1—Air Line Pilots Association (ALPA).* The Air Line Pilots Association, International questioned whether the 787 will be required to comply with any and all rules related to fuel tank inerting/flammability requirements of 14 CFR parts 25 and 121 and the guidance in Advisory Circular 25.981-2A. *FAA Response.* The 787 will be required to meet the current requirements for the certification basis of the airplane that include fuel vapor flammability standards, and we will be proposing additional requirements within special conditions for a nitrogen inerting system. The certification basis for the 787 includes Amendment 25-102, which includes the § 25.981(c) requirement for minimization of fuel tank flammability. In the preamble to Amendment 25-102 we described the intended level of flammability to be equivalent to an unheated aluminum wing fuel tank. The composite fuel tank structure of the 787 does not inherently meet this flammability standard because of the difference in thermal conductivity between composite materials and aluminum. Boeing has proposed a design that includes a nitrogen inerting system to meet the flammability standard. Because of this novel and unique feature that provides nitrogen enriched air to all fuel tanks, we will be publishing proposed special conditions for public comment. We have made no changes to these special conditions as a result of this comment. *Comment 2—ALPA.* ALPA also commented that it is important to determine the characteristics of composites after prolonged exposure to moisture of any kind (humidity, liquid, deicing fluid, fuel etc.) and stated that the FAA must conduct or endorse research to determine whether composite materials are susceptible to absorbing liquids during prolonged exposure. The commenter also stated that research must be done to determine effects of water (or other liquid) intrusion on the aircraft weight, controllability, flammability, and survivability. *FAA Response.* The FAA concurs with the concerns of the commenter and has discussed these items with the applicant. The existing airworthiness regulations for certification require that all parts and components be qualified for all foreseeable environmental conditions as installed on the airplane. Therefore, as part of the material certification and approval, the composite material is required to be subjected to accelerated environmental exposure to all liquids anticipated to be in contact with the material for the life of the aircraft. This includes but is not limited to water, salt spray, fuel, hydraulic fluid, and de-icing fluids. Any material effects due to this exposure testing will have to be considered in showing the material's ability to perform its intended function, including consideration for the life and performance of the material. These environmental qualifications are required by existing airworthiness regulations and are therefore not required to be included in the special conditions for composite structure. We have made no changes to these special conditions as a result of this comment. *Comment 3—Airbus.* Airbus noted a reference in the proposed special conditions to testing conducted at the FAA Technical Center that demonstrated aluminum fuel tank performance under postcrash fire conditions. The commenter requested access to the documentation for review of the test data to understand the applied conditions and parameters of the test. *FAA Response.* The noted reports are available to the public via the FAA Technical Center Website for Fire Safety at *http://www.fire.tc.faa.gov/* . The document we were referring to in the proposed special conditions was document FAA-RD-75-119, *Investigation of Aircraft Fuel Tank Explosions and Nitrogen Inerting Requirements During Ground Fires* . We have made no changes to these special conditions as a result of this comment. *Comment 4—Airbus.* Airbus also requested clarification of the following statement on page 17443 of the **Federal Register** , under the heading “Discussion of Proposed Special Conditions:” * * * AC 20-135 indicates that, when aluminum is used for fuel tanks, the tank should withstand the effects of fire for 5 minutes without failure.” Airbus said this statement needed clarification, because the actual language in the AC discusses fire resistance of a number of elements, but does not consider the fuel tank as a whole. *FAA Response.* The commenter is correct that AC 20-135 does not specifically refer to demonstrating that the fuel tank as a whole is fire resistant. In the past fuel tanks have typically been constructed of aluminum, which is considered to be fire resistant. AC 20-135 provides general guidance on how materials can be shown to be fire resistant if they can withstand the effects of fire for 5 minutes. These special conditions require that the fuel tank be shown to meet fire resistance standards and one means of showing a material meets these standards is described in the AC. Since the fuel tank is constructed of composite materials, we consider the guidance in the AC to be applicable to the fuel tank as a whole. We've made no change to these special conditions as a result of this comment. The following four comments, received from the public, were outside the scope of these special conditions. *Comment 5.* One commenter requested that the FAA and foreign authorities pursue rulemaking activities to develop specific rules related to use of composite materials for basic airframe structure. *FAA Response.* Although this comment does not address the context of these special conditions, we agree that current transport category rules do not adequately address the unique aspects of composite structure. These special conditions, and others for the 787 and other certification projects involving composite structure, are the first steps in establishing new airworthiness standards. We anticipate that these special conditions will be followed by rulemaking activity to establish similar standards in the applicable sub-parts of part 25. The FAA cannot comment on the position of other foreign authorities in this regard. No change to the special conditions is required. *Comment 6.* This commenter also requested that the scope of the special conditions be expanded to include evaluation of the fuselage, wing, and fuel tank to simulate actual survivable crash conditions during a fuel fed fire with respect to fire, smoke, and toxicity and passenger survivability. The commenter requested that the special conditions address fire, smoke, and toxicity environments within the fuselage interior during an external fuel fed fire. *FAA Response.* While we agree with the commenter that these are important considerations, the FAA has determined that this comment is outside the scope of these special conditions because they are limited to performance of the wing and fuel tank structure during a postcrash ground fire. The performance of the fuselage barrel and interiors during a fuel-fed fire is already addressed by existing regulations (reference 14 CFR 25.853, 25.855, and 25.856 and Appendix F for current standards for airplane interior fire safety). We have determined that existing regulations for a fuel-fed external fire are adequate to address cabin interiors, including those issues suggested by the commenter, and special conditions are not warranted. In addition, while full scale fire tests of the wing and fuselage were considered by the FAA, we determined that requiring a large scale fire test could be overly prescriptive. The means of complying with the objectives of these special conditions will be reviewed and approved by the FAA. In addition, although the performance standards for the wing and fuselage were developed independently, they have a common objective of preserving the current level of safety provided by aluminum airplanes. After reviewing this comment, we have determined that no change to the special conditions is required. *Comment 7.* This commenter has noted that burn-through tests at the component level do not address high lateral fire burning rates or fire and smoke ingress into the cabin. The commenter suggested testing should be expanded to include a full scale fire test of a fuselage barrel section with all exits opened and slides deployed throughout the test. *FAA Response.* The FAA has determined that the requirements for the smoke, toxicity, and fire resistance of the fuselage materials are adequately addressed by the current regulations and, therefore, inclusion in these special conditions is unwarranted. The intent and scope of these special conditions was to ensure that the wing and fuel tank structure will not pose an additional hazard to passengers and crew during postcrash fire scenarios because of the introduction of composite materials. Cabin safety special conditions have been developed and published for comment in Special Conditions No. 25-07-09-SC, Docket No. NM373, published April 26, 2007 (72 FR 20774). Those special conditions require that the 787 provide the same level of in-flight survivability as a conventional aluminum fuselage airplane. This includes its thermal/acoustic insulation meeting requirements of § 25.856(a). Those special conditions state that resistance to flame propagation must be shown, and all products of combustion that may result must be evaluated for toxicity and found acceptable. We have made no changes to these special conditions as a result of this comment. *Comment 8.* Another commenter provided extensive background information on the current level of safety provided by the crashworthiness of aluminum transport category airframes. This commenter expressed concern that the introduction of a composite fuselage will reduce the crashworthiness of transport airplanes. The commenter further requested that we impose a fuselage drop test for the 787 to ensure that the current level of safety provided by an aluminum fuselage is provided by the composite materials used in the construction of the 787 fuselage. *FAA Response:* We would like to note that the scope of these special conditions is limited to the fire safety provisions of the fuel tanks and wing structure during a fuel-fed ground fire. These special conditions are not intended to address the structural crashworthiness of the airframe. We have considered the impact of composites on airframe crashworthiness and have proposed Special Conditions 25-07-05-SC, published on June 11, 2007, in the **Federal Register** (72 FR 32021). As stated in those special conditions, “The Boeing Model 787-8 must provide an equivalent level of occupant safety and survivability to that provided by previously certificated wide-body transports of similar size under foreseeable survivable impact events for the following four criteria. In order to demonstrate an equivalent level of occupant safety and survivability, the applicant must demonstrate that the Model 787-8 meets the following criteria for a range of airplane vertical descent velocities up to 30 ft/sec * * *” The FAA considers that proposed Special Conditions 25-07-05-SC adequately addresses the commenter's concerns for crashworthiness and we note that the commenter had opportunity to submit comments to that proposal as well. We have made no changes to these special conditions as a result of this comment. Applicability As discussed above, these special conditions are applicable to the 787. Should Boeing apply at a later date for a change to the type certificate to include another model on the same type certificate incorporating the same novel or unusual design features, these special conditions would apply to that model as well. Conclusion This action affects only certain novel or unusual design features of the 787. It is not a rule of general applicability. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 787-8 airplane. In addition to complying with 14 CFR part 25 regulations governing the fire-safety performance of the fuel tanks, wings, and nacelle, the Boeing Model 787-8 must demonstrate acceptable postcrash survivability in the event the wings are exposed to a large fuel-fed ground fire. Boeing must demonstrate that the wing and fuel tank design can endure an external fuel-fed pool fire for at least 5 minutes. This shall be demonstrated for minimum fuel loads (not less than reserve fuel levels) and maximum fuel loads (maximum range fuel quantities), and other identified critical fuel loads. Considerations shall include fuel tank flammability, burn-through resistance, wing structural strength retention properties, and auto-ignition threats during a ground fire event for the required time duration. Issued in Renton, Washington, on September 28, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-20031 Filed 10-10-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28172; Directorate Identifier 2007-NE-23-AD; Amendment 39-15224; AD 2007-21-06] RIN 2120-AA64 Airworthiness Directives; General Electric Company

(GE)CF6-80C2A5F Turbofan Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is adopting a new airworthiness directive

(AD)for GE CF6-80C2A5F turbofan engines installed on, but not limited to, Airbus A300F4-605R airplanes. This AD requires removing previous software versions from the engine electronic control unit (ECU). Engines with new version software will have increased margin to flameout. This AD results from reports of engine flameout events during flight, including reports of events where all engines simultaneously experienced a flameout or other adverse operation. Although the root cause investigation is not yet complete, we believe that exposure to ice crystals during flight is associated with these flameout events. We are issuing this AD to minimize the potential of an all-engine flameout event caused by ice accretion and shedding during flight. DATES: This AD becomes effective November 15, 2007. ADDRESSES: You can get the service information identified in this AD from General Electric Company via Lockheed Martin Technology Services, 10525 Chester Road, Suite C, Cincinnati, Ohio 45215, telephone

(513)672-8400, fax

(513)672-8422. The Docket Operations office is located at U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. FOR FURTHER INFORMATION CONTACT: John Golinski, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *john.golinski@faa.gov;* telephone:

(781)238-7135, fax:

(781)238-7199. SUPPLEMENTARY INFORMATION: The FAA proposed to amend 14 CFR part 39 with a proposed AD. The proposed AD applies to GE CF6-80C2A5F turbofan engines installed on Airbus A300 series airplanes. We published the proposed AD in the **Federal Register** on June 28, 2007 (72 FR 35366). That action proposed to require removing previous software versions from the engine ECU. Engines with new version software will have increased margin to flameout. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Follow the online instructions for accessing the docket. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

(800)647-5527) is provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comments received. Applicability Clarification One commenter, Airbus, points out that CF6-80C2A5F engines are installed on Airbus A300-600 series airplanes, and not on Airbus A300 series airplanes, as we stated in the proposed AD. We agree that the applicability needs clarification. However, to be more accurate, we changed the AD to state that the CF6-80C2A5F engines are installed on, but not limited to, Airbus A300F4-605R airplanes. Request To Exclude Airplanes Airbus requests that we exclude airplanes that have incorporated modification number (No.) 13270, from the AD applicability. Airbus did not provide any technical rationale, information, or explanation regarding the content of modification No. 13270, or why airplanes with modification No. 13270 should be excluded from the AD. We do not agree. We believe that modification No. 13270 might be an Airbus design change for removing previous versions of software from engines and incorporating new software. We state in the AD that the actions are required unless previously done. Airbus airplanes that have previously incorporated the actions of this AD by following the GE Service Bulletin, or any other document, such as Airbus modification No. 13270, have satisfied the requirements of this AD, and no further action is required. We did not change the AD. Request To Add Airbus Service Bulletin Reference Airbus requests that we add a reference to Airbus Service Bulletin No. A300-73-6032, dated May 23, 2007 as another source of information on the subject. Airbus provided no explanation for adding the reference. We do not agree. The AD requirements are for the GE CF6-80C2A5F turbofan engine, and not the airplane. Airbus did not send us a copy of their Service Bulletin, so we do not know the contents of it. We did not change the AD. Update of Service Bulletin Reference In the related material paragraph, the proposed AD referenced GE software upgrade Service Bulletin No. CF6-80C2 S/B 73-0352, dated February 7, 2007. GE has since revised that Service Bulletin and we updated the reference to Service Bulletin No. CF6-80C2 S/B 73-0352, Revision 1, dated September 12, 2007, in that paragraph. Request for Additional Information Airbus requests that we provide additional information to them on the number of engine flameout reports defined in the proposed AD. We do not agree. GE has stated that they will continue to periodically update the airplane manufacturers on the root cause investigation and any revenue service flameout events. We did not change the AD. Request for Differences Between GE Service Bulletin and AD To Be Reconciled KLM Royal Dutch Airlines states that the proposed AD statements regarding prohibition of installing ECUs with pre GE Service Bulletin No. 73-0352 software after 24 months of AD effective date, is different from the GE Service Bulletin requirement. The commenter requests that differences between the Service Bulletin and the AD be reconciled. We do not agree. Both the AD and Service Bulletin compliance program identify 24 months as the calendar time cap for incorporating the software change. The AD requires that the new software be installed after 24 months. The Service Bulletin does not provide this statement but recommends the actions of the Service Bulletin be done within 24 months of the original issue date of the SB. We believe the intent of the AD and SB are the same, and that the AD program is appropriate for balancing the actions to address the unsafe condition and impact to the fleet. We did not change the AD. Proposed AD Allows for No Exemptions KLM Royal Dutch Airlines states that, unlike AD 2007-12-07 (Boeing 747 and 767 ECU fleet) the proposed AD allows for no exemptions. The commenter requests that we allow for exemptions, to make the AD in line with other ADs for CF6-80C2 engine applications. We do not agree. The AD actions for AD 2007-12-07 were developed specifically for the affected fleet of CF6-80C2 engines installed on Boeing 747 and 767 airplanes. That action considers the number of affected engines, available resources, risk of unsafe condition, and other factors. The actions identified in this AD are specific to the CF6-80C2 engines installed on Airbus A300F4-605R airplanes, and are appropriate for balancing the actions needed to address the unsafe condition and impact to the fleet. We did not change the AD. Request To Rewrite All of the CF6-80 Ice Accretion ADs KLM Royal Dutch Airlines requests that we rewrite all of the compliance requirements and determination definitions for all of the CF6-80 ice accretion ADs, to make them identical. The commenter did not provide any justification for this change. We do not agree. We developed the AD compliance programs for the icing inclement weather threat for the various fleets of CF6-80C2 and CF6-80E1 engines. These AD programs are different relative to corrective actions, due to several factors, including risk of unsafe condition, fleet size, and available resources. We believe having a tailored compliance plan for each population of CF6 engine provides the best approach of mitigating the risk of an unsafe condition and minimizing the impact to the respective fleet. We did not change the AD. Conclusion We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD. Costs of Compliance We estimate that this AD will affect 81 CF6-80C2A5F turbofan engines installed on Airbus A300F4-605R airplanes of U.S. registry. We also estimate it will take about 3.5 work-hours per ECU to perform the actions. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost to U.S. operators to be $22,680. Our cost estimate is exclusive of warranty coverage. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:

(1)Is not a “significant regulatory action” under Executive Order 12866;

(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES . List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new airworthiness directive: **2007-21-06 General Electric Company:** Amendment 39-15224. Docket No. FAA-2007-28172; Directorate Identifier 2007-NE-23-AD. Effective Date

(a)This airworthiness directive

(AD)becomes effective November 15, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to General Electric Company

(GE)CF6-80C2A5F turbofan engines, installed on, but not limited to, Airbus A300F4-605R airplanes. Unsafe Condition

(d)This AD results from reports of engine flameout events during flight, including reports of events where all engines simultaneously experienced a flameout or other adverse operation. We are issuing this AD to minimize the potential of an all-engine flameout event, due to ice accretion and shedding during flight. Exposure to ice crystals during flight is believed to be associated with these flameout events. 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. Interim Action

(f)These actions are interim actions due to the on-going investigation, and we may take further rulemaking actions in the future based on the results of the investigation and field experience. Engine ECU Software Removal

(g)Within 24 months after the effective date of this AD, remove software version 8.4.E or older versions, from the engine ECUs, part numbers 1797M63P01, 1797M63P02, 1797M63P03, 1797M63P04, 1797M63P05, 1820M99P01, 1820M99P02, 1820M99P03, 1820M99P04, and 1820M99P05. Previous Software Versions of ECU Software

(h)You may use an ECU installed on an engine with a software version of 8.4.E or older for no longer than 24 months after the effective date of this AD.

(i)Once software version 8.4.E or older has been removed and new FAA-approved software version is installed in an ECU, reverting to version 8.4.E or older of ECU software in that ECU is prohibited.

(j)After 24 months from the effective date of this AD, use of an ECU with a software version of 8.4.E or older is prohibited. Alternative Methods of Compliance

(k)The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Special Flight Permits

(l)Special flight permits are not authorized. Related Information

(m)Information on removing ECU software and installing new software, which provides increased margin to flameout, can be found in GE Service Bulletin No. CF6-80C2 S/B 73-0352, Revision 1, dated September 12, 2007.

(n)Contact John Golinski, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *john.golinski@faa.gov;* telephone:

(781)238-7135, fax:

(781)238-7199, for more information about this AD. Material Incorporated by Reference

(o)None. Issued in Burlington, Massachusetts, on October 4, 2007. Thomas A. Boudreau, Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-20036 Filed 10-10-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2005-21175; Directorate Identifier 2005-CE-24-AD; Amendment 39-15220; AD 2007-21-02] RIN 2120-AA64 Airworthiness Directives; Raytheon Aircraft Company Models 58P and 58TC Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: The FAA adopts a new airworthiness directive

(AD)for certain Raytheon Aircraft Company

(RAC)Models 58P and 58TC airplanes that were used as lead airplanes by the United States Forest Service (USFS). This AD establishes new limits for the structural life of the airframe (wing, fuselage, empennage, and associated structure) through the incorporation of a supplement to the Limitations Section of the pilot's operating handbook and airplane flight manual (POH/AFM). This AD results from the FAA's analysis and determination that the operational history and usage of the affected airplanes requires a reduction in the structural life limit to 4,500 hours time-in-service

(TIS)for the airframe (wing, fuselage, empennage, and associated structure). We are issuing this AD to prevent structural failure of the airframe (wing, fuselage, empennage, or associated structure) based on the operational history and usage of the affected airplanes. Such failure could lead to loss of control. DATE: This AD becomes effective on November 15, 2007. ADDRESSES: To get the service information identified in this AD, contact Hawker Beechcraft Corporation, P.O. Box 85, Wichita, Kansas 67201-0085; telephone:

(800)429-5372 or

(316)946-4124; fax:

(316)946-4107. SUPPLEMENTARY INFORMATION: Discussion On November 16, 2005, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain RAC Models 58P and 58TC airplanes that were used as lead airplanes by the USFS. This proposal was published in the **Federal Register** as a notice of proposed rulemaking

(NPRM)on November 22, 2005 (70 FR 70555). The NPRM proposed to establish new limits for the structural life of the airframe (wing, fuselage, empennage, and associated structure) through the incorporation of a new supplement into the Limitations Section of the POH/AFM; and require the disposal of the life-limited airframe following 14 CFR 43.10 when the structural life limit of the airframe is reached. Comments We provided the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and the FAA's response to each comment. Comment Issue No. 1: Public Use Aircraft Four commenters, including Winstead Sechrest & Minick P.C. (referred to after this as “Winstead”), discuss the use of these airplanes in public aircraft operations. These airplanes were previously used in public aircraft operations by the USFS. We infer that the commenters request approval to use these airplanes in public aircraft operations beyond the life limits of 4,500 hours TIS. When these airplanes were operated solely as public aircraft, they were exempt from many FAA regulations. However, since some of these airplanes may now be utilized as civil aircraft, the FAA has the responsibility to oversee the continued operational safety of these airplanes. The FAA must take into account the operational history and past usage of the airplanes. We do not agree that these airplanes should be exempt from the 4,500-hour TIS life limit because the airplanes could still be used as civil aircraft. Any time the airplane is used as a civil aircraft, the 4,500-hour TIS life limit will apply. Airplanes used in public aircraft operations are exempt from many FAA regulations. However, these exemptions only apply when the airplane is operated in a public aircraft capacity. Advisory Circular

(AC)00-1.1, Government Aircraft Operations, reads: The status of an aircraft as “public aircraft” or “civil aircraft” depends on its use in government service and the type of operation that the aircraft is conducting at the time. Rather than speaking of particular aircraft as public aircraft or civil aircraft, it is more precise to speak of particular operations as public or civil in nature. Example: An aircraft owned by a state government is used in the morning for a search and rescue mission. During the search and rescue operation, the aircraft is a public aircraft. Later that same day, however, the aircraft is used to fly the governor of the state from one meeting to another. At that time, the aircraft loses its public aircraft status and must be operated as a civil aircraft. AC 00-1.1, Government Aircraft Operations, is available for review in its entirety at *http://www.airweb.faa.gov.* Federal Aviation Regulations (14 CFR part 91) prohibits a pilot from operating a civil aircraft unless it is in an airworthy condition. AC 00-1.1 also addresses this subject: [Federal Aviation Regulations] part 91 prohibits a pilot from operating a civil aircraft unless it is in an airworthy condition. The pilot in command

(PIC)is responsible for determining whether the aircraft is in condition for safe flight. The PIC is required to terminate the flight when unairworthy mechanical, electrical, or structural conditions occur. In addition, the PIC may not operate the aircraft without complying with the operating limitations specified in the approved Airplane or Rotorcraft Flight Manual, markings, and placards, or as otherwise prescribed by the certificating authority of the country of registry. So in the above example, although the aircraft may be primarily used in public operation, it is used as a civil aircraft also. Therefore, the pilot must assure the airplane operated as a civil aircraft is in an airworthy condition, which would include all ADs, limitations, life limits, and other mandated requirements. There may be cases where an airplane is used solely in public operations. Although aircraft used in public operations are generally exempt from compliance with the Federal Aviation Regulations, the safety implications of the structural fatigue life (4,500 hours TIS) of the airframe are serious. Therefore, we strongly recommend operators of public-use-only aircraft comply with the structural fatigue life (4,500 hours TIS) of the airframe. We are adding a note to the Compliance section reiterating our concern and this recommendation. We will not make any changes to the final rule AD based on these comments. Comment Issue No. 2: Withdraw the NPRM, Suspend AD Action, and Reject the Reduced Life Limits Four commenters, including the Charlotte County (Florida) Sheriff's Office, state that the FAA should withdraw the NPRM, suspend the AD action, and reject the reduced life limits established by RAC. The FAA disagrees with the commenters. Airplanes certificated under the safe life regulations have a structural fatigue life limit based on the results of fatigue testing, fatigue analysis, and flight strain surveys. The structural fatigue life limits are determined by the mission profile and mission mix, flight length, number of ground-air-ground cycles, overall usage, and the severity of the fatigue spectrum. Utilizing the above criteria, the FAA has determined that the structural fatigue life of these 21 airplanes, which have been operated in a severe spectrum, must be reduced to 4,500 hours TIS. As stated earlier, we analyzed the past usage of the airplanes while under the responsibility of the USFS in making this determination. We are not changing the final rule AD action as a result of these comments. Comment Issue No. 3: The FAA Has Not Supplied Evidence That Shows the Need for AD Action and the FAA Should Disclose All Data Five commenters, including Winstead, Charlotte County Sheriff's Department, Texas Firebirds, Down East Emergency Medicine Institute, and Merced County Mosquito Abatement District (all operators of affected airplanes), state that the FAA has not supplied evidence that shows the need for AD action and that the FAA should disclose all data. The commenters also state that, based on their analysis of the service difficulty reports (SDRs), there is not a need for the reduced fatigue structural life. The FAA disagrees with the commenters. Establishing a structural fatigue life is not based solely on incidents/accidents. It is based on the evaluation of the mission profile and mission mix, flight length, the number of ground-air-ground cycles, the overall usage, and specifically in this case the severity of the fatigue spectrum. As stated earlier, these 21 airplanes were operated in a severe fatigue spectrum while under the responsibility of the USFS, and, now that the airplanes are in civil use, the FAA must analyze this past usage in making a decision on the structural fatigue life. SDRs are only one area the FAA evaluates in determining whether regulatory action is necessary to address safety. We agree that the SDR database alone would not justify the reduced life limit. However, when we consider the SDRs and the criteria described previously, especially the severe fatigue spectrum operations, continued operation of any of the 21 airplanes over 4,500 hours TIS would be unsafe. The FAA used the analysis of proprietary data from the type certificate holder. We are not allowed to include proprietary data in the public docket. All applicable data considered to be in the public domain is in the public docket. We are not changing the final rule AD action as a result of these comments. Comment Issue No. 4: FAA Policy on Reduction of Airframe Structural Fatigue Life Limits One commenter, Dr. Robert M. Bowie, requests the FAA's policy on reducing the airframe structural fatigue life limits. The FAA may decide to lower the life limits for airplanes subjected to severe usage. This occurs when the FAA learns of airplanes that are used significantly outside the fatigue spectrum used to establish the life limits. This more severe spectrum usage includes differences in the mission profile and mission mix, flight length, the number of ground-air-ground cycles, and the overall usage. When the FAA determines that a structural life limit must be reduced to address an unsafe condition, an AD is the only way to legally enforce the life limit. Section 14, paragraph 152 on page 109 of the Airworthiness Directives Manual FAA-IR-M-8040.1A (FAA-AIR-M-8040.1) is clear on this: a. General. Airworthiness Directives that apply more restrictive life limits to products are issued when the current life limits contribute to an unsafe condition. Note that a change to a life limit appearing only in a manual or on type certificate data sheets, even if FAA-approved, does not require compliance by the pilot or operator (although the FAA encourages that known limits be taken into consideration). To be LEGALLY required, the change must be made through an AD. We are not making any changes to the final rule AD based on these comments. Comment Issue No. 5: Alternative Method of Compliance

(AMOC)Five commenters, including Winstead, state that the FAA should approve an AMOC for the AD action, specifically a repetitive inspection program. However, no commenter provides the data to substantiate an AMOC. This AD, like most ADs, includes provisions for approval of AMOCs. The AD and 14 CFR 39.19 include procedures for applying for an AMOC. Part of these procedures is providing substantiating data that shows to the FAA the method is acceptable for addressing the unsafe condition. In this case, an AMOC that requests approval of a repetitive inspection program would need to address the damage tolerance of the structure. Typically, fracture mechanics-based methods that account for residual strength and crack propagation would address the unsafe condition and be found acceptable. Inspection methods must demonstrate the ability to reliably detect cracks before they grow to a critical size. As in any AD where AMOC requests are acceptable, the FAA will evaluate any request for an AMOC that is submitted following the proper procedures. The proposal should contain the appropriate data that shows it addresses the unsafe condition. The FAA will evaluate the proposal based on the above criteria and determine whether it provides an acceptable level of safety. If it does, then we will approve the AMOC. We are making no changes to the final rule AD action based on these comments. Comment Issue No. 6: Government Buy-Back and Loss of Airplane Warranty Three commenters, including John Ford, discuss a government buy-back of these airplanes and the applicability of the manufacturer's warranty. We conclude that the commenters request the government buy-back these airplanes and/or the manufacturer apply warranty coverage for the loss of the airplanes. We understand that the entities that operate these aircraft have a concern with the government aircraft surplus process. However, the FAA has no authority to enter into any buy-back agreements. Concerning the loss of airplane warranty, typically, the manufacturer's service information lists the required parts costs that are covered under warranty. This would mean that no charges or cost would be incurred by an airplane operator. However, in this case, there is no warranty involved. All of these airplanes were produced before 1985. The FAA has no control over warranty coverage for the affected parties; some parties may incur higher costs than the estimates here. We are not making any changes to the final rule AD based on these comments. Comment Issue No. 7: Economic Impact Four commenters, including the Sarasota County (Florida) Sheriff's Office, note that this AD action will have a severe economic impact on the operators of the affected airplanes. Because this AD will reduce the certificated life limit of the 21 airplanes utilized in a severe fatigue spectrum while under the responsibility of the USFS, the FAA recognizes that the AD will have an economic impact on those who currently use the airplanes. However, the FAA has determined that the safety implications of allowing these airplanes to continue to fly outweigh the economic impact that the AD would have on the affected operators of these airplanes. We are making no changes to the final rule AD action based on these comments. Comment Issue No. 8: Executive Orders, Regulatory Flexibility Act, and Small Business Administration Regulatory Enforcement Fairness Act of 1996 Two commenters, including the Down East Emergency Medical Institute, contend that the FAA violated several executive orders, the Regulatory Flexibility Act, and the Small Business Administration Regulatory Enforcement Fairness Act. They also suggest that an independent outside legal review be performed. The FAA completed a regulatory evaluation to ensure that the proposed AD action met applicable executive orders; the Regulatory Flexibility Act; and other policies, procedures, and orders. We have included a description of the findings for this regulatory evaluation in the section entitled Regulatory Flexibility Determination. The FAA does not obtain independent outside legal reviews of AD actions. If the commenters desire such a review, then they may have such a review done at their expense. We are not changing the final rule AD action as a result of these comments. Comment Issue No. 9: Extend (Reopen) the Comment Period for the NPRM and Hold a Public Meeting Six commenters, including the Texas Firebirds, request an extension of the comment period beyond the approximately 60 days provided by the NPRM and one commenter, Winstead, requests a public meeting with the FAA to discuss this AD action. The requests for extension range from an unspecified number of days to an additional 120 days. The majority of these commenters noted that the comment period coincided with the holidays that occur in November, December, and January. The FAA believes the DOT/FAA standard public comment period of 60 days provided adequate opportunity for public input. We will continue to evaluate the need for a public meeting. However, we do not believe the AD action should be further delayed by reopening the comment period or holding a public meeting. If, after the AD is issued, individuals present specific ideas that they feel need to be more fully addressed, the FAA will evaluate these ideas. Of specific interest would be alternative solutions to address the unsafe condition. We are not reopening the comment period, holding a public meeting at this time, or changing the final rule AD action as a result of these comments. Comment Issue No. 10: Agreement With FAA on This Airworthiness Action Three commenters, one of which is National Flight Services, made comments that they generally agree with this AD action. They request no specific change to the AD. Conclusion We have also determined that the requirement proposed in the NPRM to dispose of the life-limited parts is not necessary by AD action. 14 CFR 43.10 requires that anyone who removes a life-limited part from an airplane ensure that the part is controlled using one of the methods in paragraph

(c)of the regulation. This includes a recordkeeping system, tag or record attached to part, non-permanent marking, permanent marking, segregation, mutilation, or other methods. This AD establishes the airframe structural life limit of the affected airplanes. Anyone removing the life-limited airframe (wing, fuselage, empennage, and associated structure) from one of the affected airplanes is obligated by 14 CFR 43.10 to control the part once it is removed. Therefore, it is not necessary to require this through AD action. We have included a Note in the AD. We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for removing the life-limited parts disposal requirement from the AD and minor editorial corrections. We have determined that this removal of the disposal requirement and the minor corrections: • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and • Do not add any additional burden upon the public than was already proposed in the NPRM. Costs of Compliance We estimate that this AD affects 21 airplanes in the U.S. registry. We estimate the cost to incorporate the RAC Beechcraft POH/AFM Supplement into the POH/AFM to be $80 per airplane (1 work-hour × $80 per hour labor cost), for a total of $1,680 for U.S. operators. However, the POH/AFM supplement is life-limiting the structural airframe. The U.S. Government distributed the airplanes at no cost to the states, retaining title for five years, which have not passed. Therefore, the cost impact would consist of any costs of transfer from the state and the cost of any modifications the operators have incurred. We have no way of determining the cost of transfer for each airplane and the cost of any modifications that operators have made to the airplanes. Regulatory Flexibility Determination The Regulatory Flexibility Act of 1980 (Pub. L. 96-354)

(RFA)establishes as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The FAA did make such a determination for this AD. The basis for this determination is now discussed. Small entities are identified using standards from the Small Business Administration

(SBA)for Small Governmental Jurisdictions and Small Organizations. These standards define a Small Governmental Jurisdiction as governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand. These standards also define a Small Organization as any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. There were 21 Beech Barons available for distribution by the Forest Service. Of these 21 airplanes, 1 was destroyed in an accident. Of the remaining 20 airplanes, 4 were distributed to U.S. government agencies; 8 were distributed to states or state agencies; 6 were distributed to local governments; 1 was distributed to a non-profit agency; and 1 is unaccounted for. Of these agencies, one local government and one non-profit agency would qualify as small entities. Therefore, this final AD will not adversely affect a large number of small entities. It should be noted that the agencies receiving these airplanes do not receive title to the airplanes for a five-year period. None of these agencies have had any of these airplanes for a five-year period. Until the agencies receive title to these airplanes, the airplanes remain the property of the United States government. We received one comment discussing the effect of the proposed AD on small entities. However, as discussed above, this final AD will not adversely affect a large number of small entities. Therefore, the FAA Administrator certifies that this rule will not impose a significant economic impact on a substantial number of small entities. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this AD. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “Docket No. FAA-2005-21175; Directorate Identifier 2005-CE-24-AD” in your request. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. FAA amends § 39.13 by adding a new AD to read as follows: **2007-21-02 Raytheon Aircraft Company:** Amendment 39-15220; Docket No. FAA-2005-21175; Directorate Identifier 2005-CE-24-AD. Effective Date

(a)This AD becomes effective on November 15, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to Models 58P and 58TC airplanes, with the following serial numbers: TJ-177, TJ-178, TJ-180, TJ-211, TJ-213, TJ-247, TJ-284, TJ-285, TJ-289, TJ-290, TJ-314, TJ-322, TJ-367, TJ-368, TJ-370, TJ-371, TJ-425, TJ-426, TJ-433, TJ-442, and TK-33, that are certificated in any category. These airplanes were used as lead airplanes by the United States Forest Service for firefighting missions. Unsafe Condition

(d)This AD is the result of the FAA's analysis and determination that the operational history and usage of the affected airplanes requires a reduction in the structural life limit to 4,500 hours time-in-service

(TIS)for the airframe (wing, fuselage, empennage, and associated structure). The actions specified in this AD are intended to prevent structural failure of the airframe (wing, fuselage, empennage, or associated structure) based on the operational history and usage of the affected airplanes. Such failure could lead to loss of control. Compliance

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

(1)Insert the Raytheon Model 58P/58PA and Model 58TC/58TCA POH/AFM Supplement, part number (P/N) 102-590000-67, issued January 2005, into the Limitations Section of pilot's operating handbook (POH)/airplane flight manual

(AFM)(P/N 102-590000-41 or 106-590000-5). The POH/AFM Supplement limits the structural fatigue life of the airframe (wing, fuselage, empennage, and associated structure) to 4,500 hours TIS Upon the accumulation of 4,500 hours TIS on the airframe (wing, fuselage, empennage, or associated structure) or before further flight after November 15, 2007 (the effective date of this AD), whichever occurs later, unless already done Any person holding at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Regulations (14 CFR 43.7) may modify the POH/AFM as specified in paragraph (e)(1) of this AD. Make an entry into the aircraft records showing compliance with this portion of the AD following section 43.9 of the Federal Aviation Regulations (14 CFR 43.9).

(2)Do not operate any Models 58P and 58TC airplanes (with any serial number noted in paragraph

(c)of this AD) upon the accumulation of 4,500 hours TIS on the airframe (wing, fuselage, empennage, or associated structure) or before further flight, whichever occurs later As of November 15, 2007 (the effective date of this AD) Not Applicable. Note 1: 14 CFR 43.10 requires anyone who removes a life-limited part from an airplane to ensure that the part is controlled using one of the methods in paragraph

(f)The Manager, Wichita Aircraft Certification Office (ACO), 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: Steve Potter, Aerospace Engineer, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone:

(316)946-4124; fax:

(316)946-4107. 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. Related Information

(g)You may obtain the service information referenced in this AD from Hawker Beechcraft Corporation, P.O. Box 85, Wichita, Kansas 67201-0085; telephone:

(800)429-5372 or

(316)676-3140. To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at *http://dms.dot.gov* . The docket number is FAA-2005-21175; Directorate Identifier 2005-CE-24-AD. Issued in Kansas City, Missouri, on October 3, 2007. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-19888 Filed 10-10-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2005-23500; Directorate Identifier 2005-NE-46-AD; Amendment 39-15223; AD 2007-21-05] RIN 2120-AA64 Airworthiness Directives; International Aero Engines

(IAE)V2500 Series Turbofan Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is adopting a new airworthiness directive

(AD)for International Aero Engines

(IAE)V2500 series turbofan engines. This AD requires repetitive monitoring of N2 vibration on all IAE V2500 series engines to identify engines that might have a cracked high pressure turbine

(HPT)stage 2 air seal. This AD results from a report that HPT stage 2 air seals have developed cracks. We are issuing this AD to prevent uncontained failure of the HPT stage 2 air seal. DATES: This AD becomes effective November 15, 2007. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of November 15, 2007. ADDRESSES: You can get the service information identified in this AD from International Aero Engines AG, 400 Main Street, East Hartford, CT 06108; telephone:

(860)565-5515; fax:

(860)565-5510. The Docket Operations office is located at U.S. Department of Transportation, Docket Operations, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. FOR FURTHER INFORMATION CONTACT: James Rosa, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone

(781)238-7152; fax

(781)238-7199. SUPPLEMENTARY INFORMATION: The FAA proposed to amend 14 CFR part 39 with a proposed AD. The proposed AD applies to IAE V2500 series turbofan engines. We published the proposed AD in the **Federal Register** on June 2, 2006 (71 FR 31978). That action proposed to require repetitive monitoring of N2 vibration on all IAE V2500 series engines to identify engines that might have a cracked HPT stage 2 air seal and to replace the seal as required. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

(800)647-5527) is provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. We provided the public the opportunity to participate in the development of this AD. We have considered the comments received. Comments Parts To Be Monitored and Replaced The Modification and Replacement Parts Association states that the proposed AD does not list the part number(s) of seals requiring monitoring and replacement. We agree. To date, the following part numbers have failed: 2A3179, 2A3185, and 2A3425. However, all old design HPT stage 2 seals are subject to failure and should be vibration monitored and removed as required. We included a complete list of HPT stage 2 air seal part numbers in paragraph

(c)of this AD. Trend Slope The Air Transport Association and Delta Airlines state that we should better define the methodology for monitoring and determining trend slope. We disagree. Although these requirements are complex, they can be completed by trained personnel. We did not change the AD. Tracking Compliance Delta Airlines states that we should provide guidance for tracking compliance with this AD, as current instructions are inadequate. We disagree. Operators should establish a system for showing compliance to this AD if they do not already have such a system. We did not change the AD. Terminating Action Delta Airlines also states that we should include terminating action for the AD so they can estimate costs. We disagree. Terminating action is not currently available for the model V2500-A1 engine. Further, we discuss costs in the Costs of Compliance section of the AD. We did not change the AD. Vibration Trend Monitoring Japan Airlines International states that vibration trend monitoring is not appropriate for an AD. The airline states that, because of the complex and subjective nature of vibration trend monitoring, accurate measurements are not possible. Therefore, trend monitoring is appropriate as a supplemental, nonmandatory activity only. We disagree. Vibration trend monitoring is successful in detecting cracked HPT seals. Although results are somewhat subjective, the system is the most practical way to prevent an unsafe condition due to cracked HPT seals. We did not change the AD. Japan Airlines International also states that industry needs a ground system to monitor vibration trends. We agree that a system to hold collected data and calculate trends as they occur is needed, however, defining requirements for that system is beyond the scope of this AD. United Airlines states that we should permit vibration data averaging and smoothing. They state that not allowing averaging will increase the chances of false alerts. We disagree. Experience indicates that averaging or smoothing might mask evidence of a badly cracked seal before a piece becomes liberated. We did not change the AD. Clarify Service Bulletin Instructions Japan Airlines International states that we should clarify International Aero Engines service bulletin

(SB)instructions regarding how gaps allowed by the Mandatory Minimum Equipment List

(MMEL)effect data. MMEL allows a 10-day down time for the vibration trend monitoring system. We disagree. IAE service instructions allow a down time of 50 cycles, approximately 10 days for most operators. If operators require more time, they may request an AMOC. We did not change the AD. Manufacturer's Suggestions IAE suggests the following: • Include the latest SB revisions in the final rule. We agree and incorporated by reference the accomplishment instructions of the latest IAE SB revisions in the final rule. Operators who have followed earlier SBs will receive credit for doing so. • Correct the Discussion section regarding an incorrectly identified model from V2528-D to V2528-D5. We agree that the Discussion section should have specified the correct models, however, that discussion remained accurate for the engines subject to the AD. We did not change the AD because the Preamble of the NPRM is not included in the final rule. • Include the Airbus A321 in the Applicability section. We agree. We have added the airplane model to the Applicability section. • Reword the Compliance section to maintain consistent safety requirements. We agree, and included paragraphs (h)(4) and (j)(4) in the AD. These paragraphs now indicate that if a through crack is found in the front fillet radius of the HPT stage 2 air seal, the following must also be removed: For model V2500-A1/A5/D5 engines, remove the HPT stage 1 disk and HPT rear air seals; and for model V2500-A1 engines, also remove the HPT stage 2 disk. • List only SB V2500-ENG-72-502, Revision 1, dated March 15, 2006, under Removal of HPT Stage 2 Air Seals at Opportunity. We agree, and removed IAE SB V2500-ENG-72-0500 and IAE SB V2500-ENG-72-0501, which refer to vibration monitoring, from this section. Conclusion We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD. Costs of Compliance We estimate that this AD will affect 1,022 engines installed on airplanes of U.S. registry. We also estimate that it would take about 2 work-hours per engine to perform the actions, and that the average labor rate is $80 per work-hour. Required parts would cost about $97,040 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $99,338,400. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:

(1)Is not a “significant regulatory action” under Executive Order 12866;

(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES . List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new airworthiness directive: **2007-21-05 International Aero Engines:** Amendment 39-15223. Docket No. FAA-2005-23500; Directorate Identifier 2005-NE-46-AD. Effective Date

(a)This airworthiness directive

(AD)becomes effective November 15, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to International Aero Engines

(IAE)model V2500-A1, V2522-A5, V2524-A5, V2527-A5, V2527E-A5, V2527M-A5, V2530-A5, V2533-A5, V2525-D5, and V2528-D5 turbofan engines with high pressure turbine

(HPT)stage 2 air seals, part numbers (P/Ns) 2A0487, 2A1159, 2A1160, 2A3108, 2A3179, 2A3185, 2A3425, and 2A3596, installed. These engines are installed on, but not limited to, Airbus A319, A320, A321, and Boeing MD-90 airplanes. Unsafe Condition

(d)This AD results from a report that HPT stage 2 air seals have developed cracks. We are issuing this AD to prevent uncontained failure of the HPT stage 2 air seal. 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. Monitoring N2 Vibration on All IAE Model V2500-A1 and V2522-A5, V2524-A5, V2527-A5, V2527E-A5, V2527M-A5, V2530-A5, and V2533-A5 Engines

(f)For IAE model V2530-A5 and V2533-A5 engines operated at 30,000 or 33,000 pounds of thrust, or for model V2522-A5, V2524-A5, V2527-A5, V2527E-A5, and V2527M-A5 engines that have ever operated in the 30,000 or 33,000 pound thrust range, begin monitoring for N2 vibration trend if the HPT stage 2 air seal reaches 4,000 cycles-since-new

(CSN)or more.

(g)For IAE model V2500-A1 and V2522-A5, V2524-A5, V2527-A5, V2527E-A5, and V2527M-A5 engines operated below 30,000 pounds of thrust, begin monitoring for N2 vibration trend if the HPT stage 2 air seal reaches 6,000 CSN.

(h)Monitor N2 vibration trend of each engine for every 100 to 150 cycles of engine operation as follows:

(1)Use the Accomplishment Instructions of IAE Service Bulletin

(SB)V2500-ENG-72-0500, Revision 1, dated July 14, 2006, to gather and monitor steady-state cruise N2 vibration data.

(2)For a trend that has a slope of 0.001 units per cycle or greater and less than 0.003 units per cycle, remove the seal 250 cycles from the point at which the slope begins to increase and do not reinstall it in any V2500 engine.

(3)For a trend that has a slope of 0.003 units per cycle or greater, remove the seal in 10 cycles and do not reinstall it in any V2500 engine.

(4)If a through crack is found in the front fillet radius of the HPT stage 2 air seal, remove the following:

(i)For the A1 model engine, remove the HPT stage 1 and 2 disks and HPT stage 1 rear air seals (64 per engine) and do not reinstall them in any V2500 engine.

(ii)For all A5 engine models, remove the HPT stage 1 disk and the HPT stage 1 rear air seals (64 per engine) and do not reinstall them in any V2500 engine.

(5)Use Section 3, Accomplishment Instructions, of IAE SB V2500-ENG-72-0502, Revision 1, dated March 15, 2006, for removal procedures. Monitoring N2 Vibration on All IAE Model V2525-D5 and V2528-D5 Engines

(i)For all IAE model V2500-D5 series engines, begin monitoring for N2 vibration trend if the HPT stage 2 air seal reaches 6,000 CSN or more.

(j)Monitor N2 vibration trend of each engine for every 100 to 150 cycles of engine operation as follows:

(1)Use Section 3, Accomplishment Instructions, of IAE SB V2500-ENG-72-0501, Revision 1, dated July 14, 2006, to gather and monitor the steady-state cruise N2 vibration data.

(2)If an increasing trend that has a slope of 0.0007 units per cycle or greater, and less than 0.002 units per cycle is observed, remove the HPT stage 2 air seal within 250 cycles from the point at which the slope begins to increase and do not reinstall it in any V2500 engine.

(3)If an increasing trend that has a slope of 0.002 units per cycle or greater is observed, remove the HPT stage 2 air seal within 10 cycles and do not reinstall it in any V2500 engine.

(4)If a through crack is found in the front fillet radius of the HPT stage 2 air seal of D5 model engines, remove the HPT stage 1 disk and HPT rear air seals (64 per engine) and do not reinstall them in any V2500 engine.

(5)Use Section 3, Accomplishment Instructions, of IAE SB V2500-ENG-72-0502, dated March 15, 2006, for removal procedures. Removal of HPT Stage 2 Air Seals at Opportunity

(k)For all engines, when the HPT stage 2 air seal reaches 2,000 CSN, remove the HPT stage 2 air seal at the next separation of the HPT stage 1 and 2 rotors and do not reinstall it in any V2500 engine. Definition

(l)For the purposes of this AD, “At Opportunity” is defined as when the engine is disassembled, the HPT stage 2 seal is exposed, and the HPT stage 1 and 2 rotors are separated after 2,000 CSN.

(m)The Accomplishment Instructions of IAE SB V2500-ENG-72-0502, Revision 1, dated March 15, 2006, provide information on removing the HPT stage 2 air seal. Alternative Methods of Compliance

(n)The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Related Information

(o)Contact James Rosa, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *james.rosa@faa.gov,* telephone

(781)238-7152; fax

(781)238-7199, for more information about this AD. Material Incorporated by Reference

(p)You must use the Accomplishment Instructions (Section 3.) of International Aero Engines

(IAE)Service Bulletin

(SB)V2500-ENG-72-0500, Revision 1, dated July 14, 2006; IAE SB V2500-ENG-72-0501, Revision 1, dated July 14, 2006; or IAE SB V2500-ENG-72-0502, Revision 1, dated March 15, 2006, to perform the actions required by this AD. The Director of the Federal Register approved the incorporation by reference of these service bulletins in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact International Aero Engines AG, 400 Main Street, East Hartford, CT 06108; telephone:

(860)565-5515; fax:

(860)565-5510 for a copy of this service information. You may review copies at the FAA, New England Region, 12 New England Executive Park, Burlington, MA; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html.* Issued in Burlington, Massachusetts, on October 2, 2007. Peter A. White, Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-19924 Filed 10-10-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF STATE 22 CFR Part 171 [Public Notice 5955] RIN 1400-AC25 Search Fees in Freedom of Information Act Cases AGENCY: State Department. ACTION: Final rule. SUMMARY: This rule makes final the Department's proposed rule published on June 20, 2007. The rule revises the regulations on fees to be charged for searching for information responsive to requests made under the Freedom of Information Act. The existing regulations proved to be unworkable, particularly in terms of ascertaining the costs of electronic searches. DATES: *Effective Date:* This rule is effective October 11, 2007. ADDRESSES: Persons having questions with respect to these regulations should address such questions to: Margaret P. Grafeld, Director, Office of Information Programs and Services,

(202)261-8300, U.S. Department of State, SA-2, 515 22nd St., NW., Washington, DC 20522-6001; FAX: 202-261-8590. E-mail *GrafeldMP@state.gov.* Persons with access to the Internet may view this rule online at *http://www.regulations.gov/index.cfm.* FOR FURTHER INFORMATION CONTACT: Margaret P. Grafeld, Director, Office of Information Programs and Services,

(202)261-8300, U.S. Department of State, SA-2, 515 22nd St., NW., Washington, DC 20522-6001; FAX: 202-261-8590. SUPPLEMENTARY INFORMATION: The Department's proposed rule was published as Public Notice 5835 at 72 FR 33932-33933 on June 20, 2007 with a 90-day comment period. The Department received one comment discussed under Analysis of Comments. Although the current version of the search fee provision was promulgated in 2004, based largely on previous long-standing regulations, experience has shown that the previous, as well as the current, regulation could not, in fact, be given full effect because the cost of computer searches could not be fully ascertained and because of the difficulties in determining the salary costs attributable to individuals doing manual searches, particularly at overseas posts where Foreign Service Nationals have a different and more frequently changing pay scale. By using average salary costs of the categories of individuals involved in a search (i.e., clerical, professional, executive) instead of the actual salary of each such individual, the proposed revision will permit computer calculation of the fees that should be as accurate as the current method and should not result in any substantial increase or diminution of search fees charged or collected. *Analysis of Comments:* The proposed rule was published for comments on June 20, 2007. The comment period closed September 18, 2007. The one public comment received by the Department recommends that in calculating the salary rates for those performing the searches, all employee benefits they receive be included. To the extent it is possible to quantify such benefits, the Department plans to include them in the calculation of the salary rates of those performing the searches. Regulatory Findings *Administrative Procedure Act.* The Department is publishing this regulation as a final rule after it was published as a proposed rule June 20, 2007. *Regulatory Flexibility Act.* The Department, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule and, by approving it, certifies that this rule will not have significant economic impact on a substantial number of small entities. *Unfunded Mandates Act of 1995.* This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of 100 million or more in any year, and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. *Small Business Regulatory Enforcement Fairness Act of 1996.* This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of 100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and import markets. *Executive Order 12866.* The Department does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order. *Executive Order 13132.* This regulation 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. *Paperwork Reduction Act.* This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. List of Subjects in 22 CFR Part 171 Administrative practice and procedure, Fees for searches in Freedom of Information Act cases. For the reasons set forth in the preamble, 22 CFR part 171 is amended as follows: PART 171—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC 1. The authority citation for part 171 continues to read as follows: Authority: 22 U.S.C. 552, 552a; Ethics in Government Act of 1978, Pub. L. 95-521, 92 Stat. 1824, as amended; E.O. 12958, as amended, 60 FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235. 2. Section 171.14 is amended by adding a new sentence at the end of paragraph

(a)introductory text to read as follows: § 171.14 Fees to be charged—general.

(a)* * * For both manual and computer searches, the Department shall charge the estimated direct cost of each search based on the average current salary rates of the categories of personnel doing the searches. Further information on search fees is available by clicking on “FOIA” at the Department's Web site at *http://www.state.gov* or directly at the FOIA home page at *http://foia.state.gov.* Dated: October 2, 2007. Llewellyn Hedgbeth, Deputy Assistant Secretary, Department of State. [FR Doc. E7-20082 Filed 10-10-07; 8:45 am] BILLING CODE 4710-24-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD01-07-137] Drawbridge Operation Regulations; Jamaica Bay, New York, NY AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Beach Channel Railroad Bridge across Jamaica Bay, mile 6.7, at New York, New York. Under this temporary deviation the Beach Channel Railroad Bridge may remain in the closed position on Saturday and Sunday from 6 a.m. to 9 p.m., on October 13, 14, 20, and 21, 2007. This deviation is necessary to facilitate bridge track repairs. DATES: This deviation is effective from October 13, 2007 through October 21, 2007. ADDRESSES: Materials referred to in this document are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, 408 Atlantic Avenue, Boston, Massachusetts, 02110, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is

(617)223-8364. The First Coast Guard District Bridge Branch Office maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: Judy Leung-Yee, Project Officer, First Coast Guard District, at

(212)668-7165. SUPPLEMENTARY INFORMATION: The Beach Channel Railroad Bridge, across Jamaica Bay, mile 6.7, at New York, New York, has a vertical clearance in the closed position of 26 feet at mean high water and 31 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.5. The owner of the bridge, New York City Transit Authority, requested a temporary deviation to complete repairs to the bridge rails. Under this temporary deviation, in effect for two weekends, the Beach Channel Railroad Bridge need not open for the passage of vessel traffic on Saturday and Sunday between 6 a.m. and 9 p.m. on October 13, 14, 20, and 21, 2007. In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35. Should the bridge maintenance authorized by this temporary deviation be completed before the end of the effective period published in this notice, the Coast Guard will rescind the remainder of this temporary deviation, and the bridge shall be returned to its normal operation schedule. Notice of the above action shall be provided to the public in the Local Notice to Mariners and the **Federal Register** , where practicable. Dated: September 28, 2007. Gary Kassof, Bridge Program Manager, First Coast Guard District. [FR Doc. E7-20009 Filed 10-10-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. COTP San Francisco Bay 07-042] RIN 1625-AA00 Safety Zone; Monte Foundation Fireworks Extravaganza, Aptos, CA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone for the Monte Foundation Fireworks Extravaganza to be held at Seacliff State Beach in Aptos, California, on October 13, 2007. The fireworks display will be launched from the Seacliff State Beach Pier. This safety zone is established to ensure the safety of participants and spectators from the dangers associated with the pyrotechnics. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or his designated representative. DATES: This rule is effective from 8:15 p.m. to 9:45 p.m. on October 13, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket, are part of the docket COTP San Francisco Bay 07-042 and are available for inspection or copying at Coast Guard Sector San Francisco, 1 Yerba Buena Island, San Francisco, California 94130, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Ensign Sheral Richardson, U.S. Coast Guard Sector San Francisco, at

(415)399-7436. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking

(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Logistical details surrounding the event were not finalized and presented to the Coast Guard in time to draft and publish an NPRM. As such, the event would occur before the rulemaking process was complete. Because of the dangers posed by the pyrotechnics used in this fireworks display, safety zones are necessary to provide for the safety of event participants, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event. For the same reasons listed in the previous paragraph, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Any delay in the effective date of this rule would expose mariners to the dangers posed by the pyrotechnics used in the fireworks display. Background and Purpose The Rudolph F. Monte Foundation is sponsoring a brief fireworks display on October 13, 2007, to celebrate the Monte Foundation Fireworks Extravaganza. The fireworks display is meant for entertainment purposes. The safety zone is being issued to establish a temporary regulated area at Seacliff State Beach around the fireworks launch site during the fireworks display. The safety zone around the launch site is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics. Discussion of Rule The Coast Guard is establishing a temporary safety zone on specified waters at Seacliff State Beach. The safety zone will apply to the navigable waters around and under the Seacliff State Beach Pier within a radius of 2,000 feet around the fireworks launch site. The safety zone will be for the Monte Foundation Fireworks Extravaganza which includes all navigable waters, from the surface to the seafloor, encompassed by connecting the following points to form a safety zone: Beginning at latitude 36°58′09″ N and longitude 121°54′24″ W; latitude 36°57′44″ N and longitude 121°54′44″ W; latitude 36°58′00″ N and longitude 121°55′22″ W; latitude 36°58′27″ N and longitude 121°55′07″ W; and then back to the beginning point. These coordinates are based upon datum: NAD 83. The effect of the temporary safety zone will be to restrict general navigation in the vicinity of the fireworks launch site. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the safety zone. This safety zone is needed to keep spectators and vessels a safe distance away from the fireworks launch site to ensure the safety of participants, spectators, and transiting vessels. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are pleasure craft engaged in recreational activities. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule is not expected to have a significant economic impact on a substantial number of entities, some of which may be small entities. This rule may affect owners and operators of pleasure craft engaged in recreational activities and sightseeing. This rule will not have a significant economic impact on a substantial number of small entities for several reasons:

(i)Vessel traffic can pass safely around the area,

(ii)vessels engaged in recreational activities and sightseeing have ample space outside of the effected portion of Seacliff State Beach to engage in these activities,

(iii)this rule will encompass only a small portion of the waterway for a limited period of time, and

(iv)the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions, options for compliance, or assistance in understanding this rule, please contact Ensign Sheral Richardson, U.S. Coast Guard Sector San Francisco, at

(415)399-7436. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under 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 rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.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 concluded 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, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. Paragraph (34)(g) is applicable because this rule establishes safety zones. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add temporary § 165-T11-247 to read as follows: *§ 165-T11-247 Safety Zone; Monte Foundation Fireworks Extravaganza, Aptos, CA*

(a)*Location.* This temporary safety zone is established for the waters of Seacliff State Beach surrounding the Seacliff State Beach Pier used as a launch platform for a fireworks display.

(1)The safety zone includes all navigable waters, from the surface to the seafloor, encompassed by connecting the following points to form a safety zone: Beginning at latitude 36°58′09″ N and longitude 121°54′24″ W; latitude 36°57′44″ N and longitude 121°54′44″ W; latitude 36°58′00″ N and longitude 121°55′22″ W; latitude 36°58′27″ N and longitude 121°55′07″ W; and then back to the beginning point. These coordinates are based upon datum: NAD 83.

(b)*Enforcement Period.* This section will be enforced from 8:15 p.m. to 9:45 p.m. on October 13, 2007. If the events conclude prior to their scheduled termination times, the Coast Guard will cease enforcement of this safety zone and will announce that fact via Broadcast Notice to Mariners.

(c)*Regulations.*

(1)In accordance with the general regulations in Sec. 165.23 of this part, entry into, transit through, or anchoring within this safety zone by all vessels and persons is prohibited, unless specifically authorized by the Captain of the Port San Francisco, or his designated representative.

(2)All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port, San Francisco, or the designated representative.

(3)Designated representative means any commissioned, warrant, and petty officer of the Coast Guard onboard a Coast Guard, Coast Guard Auxiliary, local, state, or federal law enforcement vessel who is authorized to act on behalf of the Captain of the Port, San Francisco.

(4)Upon being hailed by U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. Person and vessels may request permission to enter the safety zone on VHF-16 or via telephone at

(415)399-3547.

(5)The U.S. Coast Guard may be assisted in the patrol and enforcement of this safety zone by local law enforcement as necessary. Dated: October 1, 2007. W.J. Uberti, Captain, U.S. Coast Guard, Captain of the Port, San Francisco. [FR Doc. E7-19953 Filed 10-10-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD09-07-122] RIN 1625-AA00 Safety Zone; Blue Island Regatta, Calumet Sag Channel, Blue Island, IL AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone on the Calumet Sag Channel and Little Calumet River, Blue Island, IL. This zone is intended to restrict vessels from a portion of the Calumet Sag Channel during the Blue Island Regatta November 3 and November 4, 2007. This temporary safety zone will establish restrictions upon, and control the movement of, vessels in a specified area immediately prior to, during, and immediately after the regatta. DATES: This regulation is effective from 3 p.m. on November 3, 2007 to 5 p.m. on November 4, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD09-07-122 and are available for inspection or copying at U.S. Coast Guard Sector Lake Michigan, 2420 South Lincoln Memorial Drive, Milwaukee, Wisconsin, 53207 between 9:30 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at

(414)747-7154. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking

(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The permit application was not received in time to publish an NPRM followed by a final rule before the effective date. Under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. Background and Purpose This temporary zone is necessary to ensure the safety of vessels and participants from the hazards associated with the operation of rowing race boats in a confined waterway. Based on the potential vessel traffic and the presence of small rowing vessels the Captain of the Port Lake Michigan has determined that racing rowing boats in presence of normal vessel traffic poses a significant risk to public safety and property. The likely combination of rowing vessels operating near large towing vessels and recreational vessels operating at high speeds could result in collisions that may cause serious injuries or fatalities. Establishing a safety zone to control vessel movement in the location of the race course will help ensure the safety of persons and property at this event and help minimize the associated risk. Discussion of Rule A temporary safety zone is necessary to ensure safety of life on the navigable waters immediately prior to, during, and immediately after the Southland Regatta. This proposed rule will establish restrictions upon and control the movement of vessels through a portion of the Calumet Sag Channel and the Little Calumet River immediately prior to, during, and immediately after the Southland Regatta. The Captain of the Port will cause notice of enforcement of the safety zone established by this section to be made by all appropriate means to the affected segments of the public. Such means of notification will include, but are not limited to, Broadcast Notice to Mariners and Local Notice to Mariners. The Captain of the Port will issue a Broadcast Notice to Mariners notifying the public when enforcement of the special local regulations is terminated. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This determination is based on the minimal time that vessels will be restricted from the safety zone and the safety zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zone's activation. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of Calumet Sag Channel or Little Calumet River between 3 p.m. to 5 p.m. on November 3, 2007 and 9 a.m. to 5 p.m. on November 4, 2007. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be in effect for only two hours on November 3, 2007 and eight hours on November 4, 2007. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Lake Michigan to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls 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 substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under 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 rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these regulations and fishing rights protection need not be incompatible. We have also determined that this Rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nevertheless, Indian Tribes that have questions concerning the provisions of this Rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT . Energy Effects We have analyzed this rule under Executive order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedure; and related management system practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.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 concluded 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, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This event establishes a safety zone therefore paragraph (34)(g) of the Instruction applies. A final “Environmental Analysis Check List” and “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. A new temporary § 165.T09-122 is added as follows: § 165.T09-122 Safety zone; Blue Island Regatta, Calumet Sag Channel, Blue Island, IL.

(a)*Location.* The following area is a temporary safety zone: all waters of the Calumet Sag Channel from the South Halstead Street Bridge at 41°39′27″ N, 087°38′29″ W; to the Crawford Avenue Bridge at 41°39′05″ N, 087°43′08″ W; and the Little Calumet River from the Ashland Avenue Bridge at 41°39′7″ N, 087°39′38″ W; to the junction of the Calumet Sag Channel at 41°39′23″ N, 087°39′ W (NAD 83).

(b)*Enforcement period.* This zone will be enforced from 3 p.m. to 5 p.m. on November 3, 2007 and from 9 a.m. to 5 p.m. on November 4, 2007.

(c)*Regulations.*

(1)In accordance with the general regulations in section 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan, or his on-scene representative.

(2)This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Lake Michigan or his on-scene representative.

(3)The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel.

(4)Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Lake Michigan or his on-scene representative to obtain permission to do so. The Captain of the Port or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Lake Michigan or his on-scene representative. Dated: September 24, 2007. B.C. Jones, Captain, U.S. Coast Guard, Captain of the Port Lake Michigan. [FR Doc. E7-19952 Filed 10-10-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD14-07-001] RIN 1625-AA87 Security Zones; Oahu, Maui, Hawaii, and Kauai, HI AGENCY: Coast Guard, DHS. ACTION: Final rule, correction. SUMMARY: The Coast Guard published a final rule in the **Federal Register** on August 9, 2007, that revised security regulations in Oahu, Maui, Hawaii, and Kauai, HI (72 FR 44775). While the notice of proposed rulemaking preceding that final rule stated that the Kahe Point, Oahu security zone would be enforced only upon the occurrence of certain events, we did not reflect that provision in the regulatory text. This document corrects that error. DATES: This correction is effective October 11, 2007. FOR FURTHER INFORMATION CONTACT: Lieutenant (Junior Grade) Jasmin Parker, U.S. Coast Guard Sector Honolulu at

(808)842-2600. SUPPLEMENTARY INFORMATION: On June 19, 2007, the Coast Guard published a notice of proposed rulemaking

(NPRM)entitled “Security Zones; Oahu, Maui, Hawaii, and Kauai, HI” in the **Federal Register** (72 FR 33711). That document's preamble specified that the proposed *Kahe Point, Oahu* security zone would be enforced only upon the occurrence of certain events (72 FR 33712). The proposed regulatory text, however, inadvertently failed to include that zone in § 165.1407(d)(1), which is the list specifying enforcement only under certain conditions (72 FR 33714). The regulatory text in the ensuing final rule (72 FR 44775), which was copied from the published NPRM, perpetuated the error. This document corrects the final regulation by adding the *Kahe Point, Oahu* security zone to the list in § 165.1407(d)(1) as originally intended. List of Subjects 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reports and recordkeeping requirements, Security measures, Waterways. Accordingly, 33 CFR part 165 is corrected by making the following correcting amendment: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. In § 165.1407, revise the introductory text of paragraph (d)(1) to read as follows: § 165.1407 Security Zones; Oahu, HI.

(d)*Notice of enforcement or suspension of enforcement of security zones.*

(1)The security zones described in paragraphs (a)(3) (Kalihi Channel and Keehi Lagoon, Oahu), (a)(4)(i) (Honolulu International Airport, North Section), (a)(4)(ii) (Honolulu International Airport, South Section), (a)(6) (Barbers Point Harbor, Oahu), and (a)(7) (Kahe Point, Oahu) of this section, will be enforced only upon the occurrence of one of the following events— Dated: September 21, 2007. Sally Brice-O'Hara, Rear Admiral, U.S. Coast Guard Commander, Fourteenth Coast Guard District. [FR Doc. E7-20008 Filed 10-10-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Part 1 [Docket No. PTO-C-2006-0057] RIN 0651-AC09 April 2007 Revision of Patent Cooperation Treaty Procedures AGENCY: United States Patent and Trademark Office, Commerce. ACTION: Final rule; correction. SUMMARY: The United States Patent and Trademark Office (Office) published a final rule in the **Federal Register** of September 10, 2007, revising the rules of practice in title 37 of the Code of Federal Regulations

(CFR)to conform them to certain amendments made to the Regulations under the Patent Cooperation Treaty

(PCT)that took effect on April 1, 2007. This document corrects errors in that final rule. DATES: *Effective Date:* The changes to 37 CFR 1.17(t) are effective November 9, 2007. FOR FURTHER INFORMATION CONTACT: Richard R. Cole, Senior Legal Examiner, Office of PCT Legal Administration (OPCTLA) directly by telephone at

(571)272-3281, or by facsimile at

(571)273-0459. SUPPLEMENTARY INFORMATION: The Office published a final rule in the **Federal Register** of September 10, 2007 (72 FR 51559), entitled “April 2007 Revision of Patent Cooperation Treaty Procedures” (final rule). This document corrects errors concerning the effective date and applicability date of 37 CFR 1.497 and the fee amount specified in 37 CFR 1.17(t). The final rule should have indicated that the changes to 37 CFR 1.497 are effective on September 10, 2007, and applicable as of April 1, 2007, for international applications filed on or after April 1, 2007. Section 1.17(t) should contain a reference to 35 U.S.C. 365(c) and specify a fee of $1,410.00 rather than $1,370.00. *See Revision of Patent Fees for Fiscal Year 2007,* 72 FR 46988, 46902 (Aug. 22, 2007), 1321 *Off. Gaz. Pat. Office* 154, 156 (Aug. 28, 2007). In rule FR Doc. E7-17711, September 10, 2007 (72 FR 51559), make the following corrections: 1. On page 51559, in the third column, and page 51560, in the first column, the sentence “The changes to 37 CFR 1.57, 1.437, and 1.465 are effective on September 10, 2007” should read “The changes to 37 CFR 1.57, 1.437, 1.465, and 1.497 are effective on September 10, 2007”. 2. On page 51560, in the first column, the sentence “The changes to 37 CFR 1.57, 1.437, and 1.465 are applicable as of April 1, 2007, for international applications filed on or after that date” should read “The changes to 37 CFR 1.57, 1.437, 1.465 and 1.497 are applicable as of April 1, 2007, for international applications filed on or after that date”. § 1.17 [Corrected] 3. On page 51563, in the second column, in § 1.17, paragraph

(t)is corrected to read as follows: § 1.17 Patent application and reexamination processing fees.

(t)For the acceptance of an unintentionally delayed claim for priority under 35 U.S.C. 119, 120, 121, or 365(a) or

(c)(§§ 1.55 and 1.78) or for filing a request for the restoration of the right of priority under § 1.452—1,410.00. Dated: October 3, 2007. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E7-19960 Filed 10-10-07; 8:45 am] BILLING CODE 3510-16-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2007-0656; FRL-8479-9] Approval and Promulgation of Air Quality Implementation Plans; State of South Dakota; Revisions to the Administrative Rules of South Dakota AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule and NSPS delegation. SUMMARY: EPA is taking direct final action approving a State Implementation Plan

(SIP)revisions submitted by the State of South Dakota on August 8, 2006. The August 8, 2006 submittal revises the Administrative Rules of South Dakota, Air Pollution Control Program, by modifying the chapters pertaining to definitions, ambient air quality, air quality episodes, operating permits for minor sources, performance testing, control of visible emissions, and continuous emission monitoring systems. The intended effect of this action is to make these revisions federally enforceable. We are also announcing that on July 19, 2007, we updated the delegation of authority for the implementation and enforcement of the New Source Performance Standards to the State of South Dakota. These actions are being taken under sections 110 and 111 of the Clean Air Act. DATES: This rule is effective on December 10, 2007 without further notice, unless EPA receives adverse comment by November 13, 2007. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-OAR-2007-0656, by one of the following methods: • *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. • *E-mail:* *dygowski.laurel@epa.gov* and *ostrand.laurie@epa.gov.* • *Fax:*

(303)312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). • *Mail:* Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. • *Hand Delivery:* Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R08-OAR-2007-0656. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA, without going through *http://www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* For additional instructions on submitting comments, go to Section I. General Information of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Laurel Dygowski, 8P-AR, EPA Region 8, 1595 Wynkoop Street, Denver, CO 80202-1129,

(303)312-6144, *dygowski.laurel@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. General Information II. Summary of SIP Revision III. Revisions to Delegated Program IV. Final Action V. Statutory and Executive Order Reviews Definitions For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i)The words or initials *Act* or *CAA* mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii)The words *EPA, we, us* or *our* mean or refer to the United States Environmental Protection Agency.

(iii)The initials *SIP* mean or refer to State Implementation Plan.

(iv)The words *State* or *South Dakota* mean the State of South Dakota, unless the context indicates otherwise. I. General Information A. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI.* Do not submit this information to EPA through Regional Materials in EDOCKET, regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for Preparing Your Comments.* When submitting comments, remember to: a. Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). b. 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. c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. d. Describe any assumptions and provide any technical information and/or data that you used. e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. f. Provide specific examples to illustrate your concerns, and suggest alternatives. g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. h. Make sure to submit your comments by the comment period deadline identified. II. Summary of SIP Revision On August 8, 2006, the State of South Dakota submitted revisions to its State Implementation Plan (SIP). The specific revisions to the SIP contained in the August 8, 2006 submittal are explained below. The August 8, 2006 submittal also contained revisions to other sections of the Administrative Rules of South Dakota

(ARSD)that are not part of the SIP. This rule does not address revisions to ARSD 74:36:05, 74:36:07, 74:36:08, or 74:36:16 that were part of the August 8, 2006 submittal. A. ARSD 74:36:01—Definitions The State has revised sections 74:36:01:01(8)(e), (29), and (30), 74:36:01:05(1), and 74:36:01:20(5), (7), and

(8)to update the incorporation of the Code of Federal Regulations

(CFR)to the July 1, 2005 CFR and has revised section 74:36:01:01(77) by adding additional compounds that are included in the definition of “VOC”. B. ARSD 74:36:02—Ambient Air Quality The State has revised sections 74:36:02:02 through 74:36:02:05 to update the incorporation of the CFR to the July 1, 2005 CFR and has made minor typographical corrections. C. ARSD 74:36:03—Air Quality Episodes The State has revised chapter 74:36:03 to update the incorporation of the CFR to the July 1, 2005 CFR and has made minor typographical corrections. D. ARSD 74:36:04—Operating Permits for Minor Sources The State has revised section 74:36:04:04 to update the incorporation of the CFR to the July 1, 2005 CFR and has made minor typographical corrections. E. ARSD 74:36:11—Performance Testing The State has revised section 74:36:11:01 to update the incorporation of the CFR to the July 1, 2005 CFR. F. ARSD 74:36:12—Control of Visible Emissions The State has revised sections 74:36:12:01 and 74:36:12:03 to update the incorporation of the CFR to the July 1, 2005 CFR. G. ARSD 74:36:13—Continuous Emission Monitoring Systems The State has revised sections 74:36:13:02-04, and 74:36:13:06-08 to update the incorporation of the CFR to the July 1, 2005 CFR. III. Revisions to Delegated Programs A. ARSD 74:36:07—New Source Performance Standards

(NSPS)The August 8, 2006 submittal by the State updated the effective date of the incorporated by reference NSPS to July 1, 2005. EPA is announcing that on July 19, 2007, we updated the delegation of authority for the implementation and enforcement of the NSPS to the State. The July 19, 2007 letter of delegation to the State follows: Ref: 8P-AR Steven M. Pirner, P.E., Secretary, South Dakota Department of Environment and Natural Resources, Joe Foss Building, 523 East Capitol Avenue, Pierre, SD 57501-3182 Dear Mr. Pirner: On August 8, 2006, the State submitted a revision to the Air Pollution Control Program for South Dakota. Specifically, South Dakota Air Pollution Control Program Chapter 74:36:07, New Source Performance Standards, was revised to update the citation for the incorporated Federal New Source Performance Standards

(NSPS)in 40 CFR part 60 as those in effect on July 1, 2005. Subsequent to states adopting NSPS regulations, EPA delegates the authority for the implementation and enforcement of those NSPS, so long as the state's regulations are equivalent to the Federal regulations. EPA reviewed the pertinent statutes and regulations of the State of South Dakota and determined that they provide an adequate and effective procedure for the implementation and enforcement of the NSPS by the State of South Dakota. Therefore, pursuant to Section 111(c) of the Clean Air Act (Act), as amended, and 40 CFR part 60, EPA hereby delegates its authority for the implementation and enforcement of the NSPS to the State of South Dakota as follows:

(A)Responsibility for all sources located, or to be located, in the State of South Dakota subject to the standards of performance for new stationary sources promulgated in 40 CFR part 60. The categories of new stationary sources covered by this delegation are all NSPS subparts in 40 CFR part 60, as in effect on July 1, 2005. *Note this delegation does not include the emission guidelines in subparts Cb, Cc, Cd, Ce, BBBB and DDDD, and HHHH. These subparts require state plans which are approved under a separate process pursuant to Section 111(d) of the Act.*

(B)Not all authorities of NSPS can be delegated to states under Section 111(c) of the Act, as amended. The EPA Administrator retains authority to implement those sections of the NSPS that require:

(1)Approving equivalency determinations and alternative test methods,

(2)decision making to ensure national consistency, and

(3)EPA rulemaking to implement. Enclosed with this letter is a list of examples of sections in 40 CFR part 60 related to the NSPS being delegated in this letter that cannot be delegated to the State of South Dakota.

(C)The Department of Environment and Natural Resources

(DENR)and EPA will continue a system of communication sufficient to guarantee that each office is always fully informed and current regarding compliance status of the subject sources and interpretation of the regulations.

(D)Enforcement of the NSPS in the state will be the primary responsibility of the DENR. If the DENR determines that such enforcement is not feasible and so notifies EPA, or where the DENR acts in a manner inconsistent with the terms of this delegation, EPA may exercise its concurrent enforcement authority pursuant to section 113 of the Act, as amended, with respect to sources within the State of South Dakota subject to NSPS.

(E)The State of South Dakota will at no time grant a variance or waiver from compliance with NSPS regulations. Should DENR grant such a variance or waiver, EPA will consider the source receiving such relief to be in violation of the applicable Federal regulation and initiate enforcement action against the source pursuant to section 113 of the Act. The granting of such relief by the DENR shall also constitute grounds for revocation of delegation by EPA.

(F)If at anytime there is a conflict between a state regulation and a Federal regulation (40 CFR part 60), the Federal regulation must be applied if it is more stringent than that of the state. If the state does not have the authority to enforce the more stringent Federal regulation, this portion of the delegation may be revoked.

(G)If the Regional Administrator determines that a state procedure for enforcing or implementing the NSPS is inadequate, or is not being effectively carried out, this delegation may be revoked in whole or part. Any such revocation shall be effective as of the date specified in a Notice of Revocation to the DENR.

(H)Acceptance of this delegation of presently promulgated NSPS does not commit the State of South Dakota to accept delegation of future standards and requirements. A new request for delegation will be required for any standards not included in the state's request of August 8, 2006.

(I)Upon approval of the Regional Administrator of EPA Region VIII, the Secretary of DENR may subdelegate his/her authority to implement and enforce the NSPS to local air pollution control authorities in the state when such authorities have demonstrated that they have equivalent or more stringent programs in force.

(J)The State of South Dakota must require reporting of all excess emissions from any NSPS source in accordance with 40 CFR 60.7(c).

(K)Performance tests shall be scheduled and conducted in accordance with the procedures set forth in 40 CFR part 60 unless alternate methods or procedures are approved by the EPA Administrator. Although the Administrator retains the exclusive right to approve equivalent and alternate test methods as specified in 40 CFR 60.8(b)(2) and (3), the state may approve minor changes in methodology provided these changes are reported to EPA Region VIII. The Administrator also retains the right to change the opacity standard as specified in 40 CFR 60.11(e).

(L)Determinations of applicability, such as those specified in 40 CFR part 60.5 and review of plans, as provided for in 40 CFR part 60.6, shall be consistent with those determinations already made and reviews conducted by the EPA.

(M)Alternatives to continuous monitoring procedures or reporting requirements, as outlined in 40 CFR part 60.13(i), may be approved by the State only if the specific NSPS grants that authority. Otherwise, EPA retains the authority to review and approve such alternatives.

(N)If a source proposes to modify its operation or facility which may cause the source to be subject to NSPS requirements, the state shall notify EPA Region VIII and obtain a determination on the applicability of the NSPS regulations.

(O)Information shall be made available to the public in accordance with 40 CFR 60.9. Any records, reports, or information provided to, or otherwise obtained by, the state in accordance with the provisions of these regulations shall be made available to the designated representatives of EPA upon request.

(P)All reports required pursuant to the delegated NSPS should not be submitted to the EPA Region VIII office, but rather to the DENR.

(Q)As 40 CFR part 60 is updated, South Dakota should revise its regulations accordingly and in a timely manner and submit to EPA requests for updates to its delegation of authority. EPA is approving South Dakota's request for NSPS delegation for all areas within the State except for land within formal Indian reservations located within or abutting the State of South Dakota, including the: Cheyenne River Indian Reservation, Crow Creek Indian Reservation, Flandreau Indian Reservation, Lower Brule Indian Reservation, Pine Ridge Indian Reservation, Rosebud Indian Reservation, Standing Rock Indian Reservation, Yankton Indian Reservation, any land held in trust by the United States for an Indian tribe; and any other areas which are “Indian Country” within the meaning of 18 U.S.C. 1151. Since this delegation is effective immediately, there is no need for the state to notify the EPA of its acceptance. Unless we receive written notice of objections from you within ten days of the date on which you receive this letter, the State of South Dakota will be deemed to accept all the terms of this delegation. EPA will publish an information notice in the **Federal Register** in the near future to inform the public of this delegation, in which this letter will appear in its entirety. If you have any questions on this matter, please contact me or have your staff contact Callie Videtich, Director of our Air and Radiation Program, at

(303)312-6434, or toll-free at 1-800-227-8917. Sincerely yours, Robert E. Roberts, *Regional Administrator.* Enclosure cc: Brian Gustafson, Administrator, South Dakota Air Quality Program Enclosure to Letter Delegating NSPS in 40 CFR Part 60, Effective Through January 31, 2006, to the State of South Dakota Examples of Authorities in 40 CFR Part 60 Which Cannot Be Delegated 40 CFR subparts Section(s) A 60.8(b)(2) and (b)(3), and those sections throughout the standards that reference 60.8(b)(2) and (b)(3); 60.11(b) and (e); and 60.13(i). Da 60.47Da. Db 60.44b(f), 60.44b(g) and 60.49b(a)(4). Dc 60.48c(a)(4). Ec 60.56c(i), 60.8. J 60.105(a)(13)(iii) and 60.106(i)(12). Ka 60.114a. Kb 60.111b(f)(4), 60.114b, 60.116b(e)(3)(iii), 60.116b(e)(3)(iv), and 60.116b(f)(2)(iii). O 60.153(e). DD 60.302(d)(3). GG 60.332(a)(4) and 60.335(b)(10)(ii). VV 60.482-1(c)(2) and 60.484. WW 60.493(b)(2)(i)(A) and 60.496(a)(1). XX 60.502(e)(6). AAA 60.531, 60.533, 60.534, 60.535, 60.536(i)(2), 60.537, 60.538(e), and 60.539. BBB 60.543(c)(2)(ii)(B). DDD 60.562-2(c). GGG 60.592(c). III 60.613(e). JJJ 60.623. KKK 60.634. NNN 60.663(f). QQQ 60.694. RRR 60.703(e). SSS 60.711(a)(16), 60.713(b)(1)(i) and (ii), 60.713(b)(5)(i), 60.713(d), 60.715(a) and 60.716. TTT 60.723(b)(1), 60.723(b)(2)(i)(C), 60.723(b)(2)(iv), 60.724(e) and 60.725(b). VVV 60.743(a)(3)(v)(A) and (B), 60.743(e), 60.745(a) and 60.746. WWW 60.754(a)(5). CCCC 60.2030(c)(1) through (7). IV. Final Action EPA is approving revisions to the South Dakota SIP submitted by the State on August 8, 2006. The revisions we are approving are revisions to ARSD 74:36:01, 73:36:02, 74:36:03, 74:36:04, 74:36:11, 74:36:12, and 74:36:13. We are also announcing that on July 19, 2007, we updated the delegation of authority for the implementation and enforcement of the NSPS to the State of South Dakota. Section 110(l) of the Clean Air Act states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of the NAAQS or any other applicable requirements of the Act. The South Dakota SIP revisions that are the subject of this document do not interfere with the maintenance of the NAAQS or any other applicable requirement of the Act because of the following:

(1)The revisions to the SIP meet Federal requirements and allow the State to include the most recent version of federal regulations; and

(2)the NSPS delegation meets the requirements of section 111(c) of the CAA and 40 CFR part 60. Therefore, section 110(l) requirements are satisfied. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the “Proposed Rules” section of today's **Federal Register** publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective December 10, 2007 without further notice unless the Agency receives adverse comments by November 13, 2007. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the **Federal Register** informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. V. Statutory and Executive Order Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. 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 Clean Air Act. 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 Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: September 14, 2007. Kerrigan G. Clough, Acting Regional Administrator, Region 8. 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 QQ—South Dakota 2. In § 52.2170, the table in paragraph

(c)is amended by revising the entries for chapters 74:36:01, 73:36:02, 74:36:03, 74:36:04, 74:36:11, 74:36:12, and 74:36:13 of the Administrative Rules of South Dakota to read as follows: § 52.2170 Identification of plan.

(c)EPA approved regulations. State citation Title/subject State effective date EPA approval date and citation 1 Explanations 74:36:01 Definitions 74:36:01:01 Definitions 74:36:01:01(8)(e), (29), (30),

(77)6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:01:05 Applicable Requirements of the Clean Air Act Defined 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:01:20 Physical change or change in the method of operation 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:02 Ambient Air Quality 74:36:02:02 Ambient air quality standards 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:02:03 Methods of sampling and analysis 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:02:04 Air quality monitoring network 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:02:05 Ambient air monitoring requirements 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:03 Air Quality Episodes 74:36:03:01 Air pollution emergency episode 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:03:02 Episode emergency contingency plan 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:04 Operating Permits for Minor Sources 74:36:04:04 Standard for issuance of operating permit 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:11 Performance Testing 74:36:11:01 Stack performance testing or other testing methods 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:12 Control of Visible Emissions 74:36:12:01 Restrictions on visible emissions 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:12:03 Exceptions granted to alfalfa pelletizers or dehydrators 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:13 Continuous Emission Monitoring Systems 74:36:13:02 Minimum performance specifications for all continuous emission monitoring systems 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:13:03 Reporting requirements 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:13:04 Notice to department of exceedance 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:13:06 Compliance certification 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:13:07 Credible evidence 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 74:36:13:08 Compliance Assurance Monitoring 6/13/2006 [Insert Federal Register page number where the document begins]; 10/11/2007 * * * * * * * 1 In order to determine the EPA effective date for a specific provision that is listed in this table, consult the Federal Register cited in this column for that particular provision. [FR Doc. E7-19831 Filed 10-10-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Parts 206 and 207 [Docket ID FEMA-2006-0035] RIN 1660-AA21 Management Costs AGENCY: Federal Emergency Management Agency, DHS. ACTION: Interim final rule. SUMMARY: This interim final rule implements the management costs provisions of the Robert T. Stafford Disaster Relief and Emergency Assistance Act. In so doing, it simplifies and clarifies the method by which FEMA contributes to costs incurred by grantees and subgrantees in implementing the Public Assistance and Hazard Mitigation Grant programs and establishes fixed management cost rates for compensating eligible grantees and subgrantees. DATES: *Effective Date:* This rule is effective on November 13, 2007. *Comment Date:* Comments are due on or before November 13, 2007. ADDRESSES: You may submit comments, identified by Docket ID FEMA-2006-0035, by one of the following methods: *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. *E-mail: FEMA-RULES@dhs.gov.* Include Docket ID FEMA-2006-0035 in the subject line of the message. *Fax:* 866-466-5370. *Mail/Hand Delivery/Courier:* Rules Docket Clerk, Office of Chief Counsel, Federal Emergency Management Agency, Room 835, 500 C Street, SW., Washington, DC 20472. *Instructions:* All Submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at *http://www.regulations.gov* , and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to read the Privacy Act notice that is available on the Privacy and Use Notice link on the Administration Navigation Bar of *www.regulations.gov* . *Docket:* For access to the docket to read background documents or comments received, go to the Federal eRulemaking Portal at *http://www.regulations.gov* . Submitted comments may also be inspected at Office of Chief Counsel, Federal Emergency Management Agency, Room 835, 500 C Street, SW., Washington, DC 20472. FOR FURTHER INFORMATION CONTACT: Jonna M. Long, Office of the Chief Financial Officer, Federal Emergency Management Agency, PP 632, 500 C Street, SW., Washington, DC 20472, 202-646-7057, (facsimile)

(202)646-4268, or (e-mail) *jonna.long@dhs.gov* . SUPPLEMENTARY INFORMATION: I. Introduction Under the provisions of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. 5121-5206, and its implementing regulations, the Federal Emergency Management Agency

(FEMA)has the authority to assist State and local governments in carrying out their responsibilities pursuant to a Presidentially-declared major disaster or emergency. Two of the major programs authorized by the Stafford Act that provide assistance to State and local governments are the Public Assistance

(PA)program and the Hazard Mitigation Grant Program (HMGP). • PA, implemented at part 206 subparts G and H of this chapter, provides funding through grants for emergency protective measures, debris removal, and repair, replacement, or restoration of facilities not met by insurance. • HMGP, implemented at part 206 subpart N of this chapter, provides funding through grants to undertake sustained mitigation measures that will reduce or permanently eliminate the long-term risk to people and property from natural hazards and their effects. Sustained mitigation measures include acquisition for open space, elevations of flood prone properties, and wind or seismic retrofitting of structures. Section 324 of the Stafford Act, 42 U.S.C. 5165b, requires FEMA to establish management cost rates for grantees and subgrantees that will be used to determine contributions for management costs and to review those management cost rates not later than 3 years after the date of establishment of the rates and periodically thereafter. “Management costs,” for purposes of this regulation, include any indirect costs, any administrative expenses and any other expenses not directly chargeable to a specific project that are reasonably incurred by a grantee or subgrantee in administering and managing a PA program or HMGP grant award. Funding for management and administrative costs for PA and HMGP grantees and subgrantees is provided currently through one of three mechanisms: • Associated costs, also known as the Statutory Administrative Costs Allowance or the “sliding scale,” under section 406(f) of the Stafford Act (which is repealed with the establishment of management costs under this rule pursuant to Pub. L. 106-390, sec. 202(b)(2)), which include: ○ Extraordinary costs incurred by a grantee for preparation of damage survey reports, final inspection reports, project applications, final audits, and related field inspections by State employees, such as overtime pay and per diem and travel expense of such employees, but not regular time; and ○ Necessary costs incurred by a subgrantee of requesting, obtaining, and administering Federal disaster assistance; • State Management Costs, which include regular time labor costs for grantee and temporary employees, contract costs, equipment and office supplies, and communications costs; and • Grantee indirect costs, which are costs incurred through a project that are not directly related to it, such as utilities, rent, and other overhead. These three types of costs are currently paid in accordance with § 206.228(a)(2) through 206.228(a)(3)(ii) and 206.228(b) for PA, and § 206.439(b)(1) through (c)(2) for HMGP which are revised by this interim final rule. The management cost rates set forth in this regulation replace what FEMA previously paid State and local governments for associated costs through the “sliding scale,” State management costs, and grantee indirect costs. Management cost funding will be requested through the PA Project Worksheet

(PW)or HMGP project application process. PWs and HMGP project narratives are already submitted by grantees. Any costs that can be directly attributable to a project (at the grantee or subgrantee levels) will continue to be added directly to the PA PW, or HMGP application for the project. II. Comments, Responses, and Changes to the Proposed Rule FEMA published a Notice of Proposed Rulemaking

(NPRM)(67 FR 56130, August 30, 2002) proposing a methodology for calculating the management cost rates, and guidance for the implementation of section 324 of the Stafford Act. In the NPRM, FEMA proposed to implement section 324 of the Stafford Act by creating an entirely new grant program for management cost funds, separate from grants awarded for PA and HMGP. FEMA also proposed to provide a set amount based on a percentage of the Federal share of PA and HMGP projections for a declaration. That amount would be available for PA and HMGP grant management and administration, and for grantees and subgrantees, and would allow grantees the flexibility to distribute funds in a manner representative of their priorities for management of the two programs. During the 30-day comment period, FEMA received comments from 23 States, the U.S. Virgin Islands, 2 associations, and 1 consulting firm. All comments were considered carefully in formulating this interim final rule. A summary of the comments received, as well as FEMA's responses, is set forth below. a. General Comments and Changes 1. Adequacy of Rates FEMA received several comments about the rates that were published in the proposed rule, with many of the commenters claiming the rates were inadequate for effective program management and that FEMA did not accurately reflect costs not paid with Federal funds. As the rates are based on what FEMA historically paid grantees and subgrantees for program management, and historically, grantees and subgrantees were able to administer and manage PA and HMGP at that level of funding, FEMA does not believe the rates will be inadequate for future program management. FEMA acknowledges that the rates prescribed may not cover all costs incurred by a grantee. The Stafford Act, however, in sections 101(b), 401, and 501(a), establishes the Federal Government's role in disaster response and recovery as supplementing State efforts in carrying out their responsibilities; management cost funds are contributions, not full funding. FEMA believes that basing the rates on historical Federal obligations is appropriate and, as the rates will be applied to the Federal share of program projections, grantees and subgrantees are reasonably expected to contribute at least a comparable amount of management cost funds to the non-Federal share. In any case, as several commenters noted, the funds that FEMA will provide for management costs are only meant to contribute to costs that are not directly chargeable at the project level. FEMA will continue to reimburse administrative or project management costs that can be properly documented and directly charged to the project. 2. Separate Indirect Costs Several commenters were concerned that the proposed funding for management costs did not comport with OMB Circular No. A-87 and part 13 which allow for the reimbursement of indirect costs and part 13 because in the proposed regulations separate payment for indirect costs would not be allowed. However, section 324 of the Stafford Act defines management costs as including indirect costs; therefore, separate reimbursement for indirect costs is not permitted, because doing so would be duplicative. 3. Increased Costs Due to New Grant Process Some commenters were concerned that the management cost rates as calculated did not account for the additional costs of application, administrative, monitoring, and reporting requirements of the new grant program outlined in the proposed rule. Since publication of the proposed rule, and in response to comments, FEMA has decided to implement section 324 of the Stafford Act as part of the PA and HMGP programs and not as a separate grant program. The additional requirements of a separate grant program no longer apply. 4. Combined Rate for PA and HMGP In the proposed rule, FEMA proposed to provide a combined set amount that would be available for both PA and HMGP grant management and administration to allow grantees the flexibility to distribute funds in a manner representative of their priorities for management of the two programs. Some commenters felt that providing a set amount for a declaration that would be available for PA and HMGP did not provide the flexibility to distribute the funds in a manner representative of the grantee's priorities for management of the two programs, but rather would be impractical and create additional burden to program managers. Because FEMA has decided to implement section 324 of the Stafford Act as part of PA and HMGP and not as a separate grant program, these concerns are moot. In this interim final rule, FEMA is publishing three management cost rates: One for PA pursuant to major disaster declarations; one for HMGP pursuant to major disaster declarations; and one for PA pursuant to emergency declarations. 5. Combined Rate for Grantee and Subgrantees FEMA received a few comments critical of its proposal to provide management cost funds to grantees for both grantee and subgrantee use. One State commented that the process could be very divisive unless State plans were in place and accepted prior to declaration. FEMA agrees; accordingly, in the interim final rule, FEMA is requiring States to outline their plans for subgrantee treatment in the State administrative plans required for PA and HMGP. Moreover, two States commented that management cost funding administration would be simplified if subgrantee costs were based on project award or the total cost of the project. FEMA agrees that these are viable options for States to consider. Nevertheless, for the reasons set forth below, FEMA has not changed the combined rate concept. FEMA's relationship in PA and HMGP is with the grantee; the grantee has the direct relationship with its subgrantees. FEMA believes that, just as a grantee has the right and the ability to determine cost-sharing requirements for its subgrantees, it has the right and the ability to determine reasonable contributions for management costs that cannot be directly charged to projects. 6. Updated Calculation of Management Cost Rates In the proposed rule, FEMA published rates for major disaster and emergency declarations based on obligations for major disasters and emergencies declared in the 6-year period 1995 through 2000 and supplemented by data from States that were able to provide information on costs not reimbursed by FEMA. As FEMA's disaster processing systems were not fully automated for that period, data came from various sources. In August 1998, FEMA implemented its National Emergency Management Information System (NEMIS). NEMIS provides the capability to extract data on sliding scale, State management cost, and indirect costs obligations. In this interim final rule, FEMA is publishing three management cost rates: One for PA pursuant to major disaster declarations; one for HMGP pursuant to major disaster declarations; and one for PA pursuant to emergency declarations. NEMIS data for major disasters and emergencies declared in the six-year period August 1998 through July 2004 were used to update the management cost rate calculations. b. Section-by-Section Analysis 1. Definitions FEMA received comments from five States on § 207.2 of the proposed rule. One commenter requested that FEMA add a definition of “close out;” this was done. In the proposed rule, FEMA defined “lock-in” as the amount of management cost funds available to a grantee for a particular major disaster or emergency, as FEMA determines at 30 days, 6 months, and after the final HMGP lock-in. Two germane comments were received on the definition of “lock-in.” One commenter suggested that large projects that take more than 6 months for FEMA approval would not be factored into the rate and therefore the amount available to the State would be reduced. FEMA believes this is incorrect as the amount of management cost funding that will be made available will be based on program projections—not approved projects. Another comment asserted that this “produces an even harder financial hit to the grantee and subgrantee” because current subgrantee administrative costs are based on the total obligation, not just the Federal share. This disparity is addressed because the percentage is based on what FEMA paid out over a 6 year period, including the funding paid to subgrantees that is based on the total project obligation, not just the Federal share. One State asked what the basis for the management cost funding would be for the HMGP when only Individual Assistance

(IA)and HMGP are declared. Under an IA/HMGP declaration, the HMGP management cost rate would be provided for management of that program based on the estimated projections (Federal share) for the HMGP program. 2. Applicability and Eligibility FEMA received several comments about the applicable date described in § 207.3. In the preamble of the proposed rule, FEMA noted that the anticipated implementation date was subject to change. Progress toward implementation was slowed by several factors and the implementation date for management costs has been changed accordingly. 3. Responsibilities One commenter suggested that, rather than reviewing the rate no later than three years after the rule is in effect, FEMA should review after 1 year. Because section 324 of the Stafford Act requires FEMA to review the management cost rates established not later than 3 years after the date of establishment of the rates and periodically thereafter, FEMA retains the discretion to review sooner, if necessary. Accordingly, this change was not made. Two States asked whether pass-through funding to subgrantees was mandatory. The Stafford Act defines the management cost rates as being for grantees and subgrantees. FEMA has added language to clarify the grantee's responsibility for determining the amount or percentage of management cost funding to be passed through to subgrantees and ensuring that it provides such funds to subgrantees. Other States expressed concerns about setting a fixed rate. However, the Stafford Act requires FEMA to set management cost rates to be used to determine contributions for management costs—full compensation to a grantee or subgrantee is not implicit. FEMA believes that the sharing of costs—as PA and HMGP costs are shared—leads to better fiscal responsibility and accountability. 4. Determination of Management Costs The title of this section has been renamed “Determination of management cost funding” to more accurately reflect that what is being determined is the amount of funding that will be available for management costs, not whether specific costs are eligible as management costs. Two comments were received about the timing of, and adjustments to, the lock-in amount. One commenter felt that locking into a final amount at 9 months would cause unfair fiscal burdens on grantees and subgrantees. In the proposed rule, FEMA stated it would determine the final lock-in amount for management cost funding at 9 months or after the final HMGP lock-in ceiling was determined, whichever was later. After HMGP lock-in, the projected amount of funding for that program is set. FEMA believes that locking into a management cost amount after the HMGP ceiling is established maximizes the amount available for management costs. However, since the HMGP ceiling is currently expected to lock at 12 months, FEMA has changed the final lock-in date for management costs to 12 months or after HMGP lock-in, whichever is later. The other commenter suggested that the phased lock-in process should allow for increases as disaster cost estimates change; the rule as written allows this. Two States provided comments on the $20 million cap proposed for the total amount of management cost funds to be provided pursuant to a single declaration. One State claimed that $20 million equated to a $453 million event, which would not be out of the ordinary. FEMA does not agree with this calculation, as it assumes the $453 million was derived by calculating that $20 million is 4.41 percent (the rate in the proposed rule) of $453 million. In this case, $453 million would indeed represent combined PA and HMGP projections; however, on average, PA and HMGP represent approximately 58 percent of total disaster costs. Therefore, $20 million in management cost funding would approximately equal a $781 million event ($781 million × .58 = 453 million)—far more out of the ordinary. The other State commented that “[t]he identification of $20 million as the “not to exceed” amount for management costs appears to be the real reason for this proposed rule.” FEMA disagrees with this statement, as the rule is being promulgated in response to a change in law (section 324 of the Stafford Act, 42 U.S.C. 5165b). Although FEMA is now providing separate management cost rates and funding for PA and HMGP as part of the programs and not as a separate grant program, the single cap for management costs for the declaration has been retained. 5. Eligible Use of Funds Since publication of the proposed rule, and in response to comments, FEMA has changed the title of this section to “Use of funds” to more accurately reflect the content of the section. FEMA received a number of comments and questions on this section, many related to individual items that were listed as “eligible” or “ineligible.” The items listed in the proposed rule were not meant to be exhaustive, but rather were to be representative of the types of costs for which the use of management cost funding would be appropriate. In response to comments, FEMA has determined that the lists are not necessary. Instead, the interim final rule states that all charges must be related to administration of PA and HMGP, must be properly documented, and must be made in accordance with § 13.22. FEMA received a number of questions about the treatment of indirect costs. Because the statutory definition of management costs in section 324 of the Stafford Act, 42 U.S.C. 5165b, includes indirect costs, grantees and subgrantees may not add such costs to project costs or request reimbursement separately. After the effective date of this interim final rule, the only available mechanism for reimbursement of indirect costs for PA and HMGP is use of management cost funding provided in this section. In the NPRM, FEMA proposed that any management cost funds that were not needed for a specific declaration could be retained by the grantee or subgrantee, upon approval of a spending plan for improvement of the disaster programs' general financial and grants management. Because such costs are already eligible management costs, if directly attributable to program management for that declaration, FEMA has determined there is no need for a second spending plan. Any such planned expenditures should be included with the documentation submitted to support the management cost funding request and any management cost funds not properly expended in direct support of PA or HMGP will be deobligated by FEMA. 6. Application Procedures FEMA received several comments about the proposed process and timing for applying for management cost funding. Because the requirements of a separate grant program no longer apply, the process for requesting management cost funding is simplified. Accordingly, FEMA has decided to implement section 324 by continuing to use the same application processes for management costs as it is currently using, rather than as a separate grant program. That is, grantees will continue to apply for PA management cost funding using a PW and its associated forms, if applicable, and for HMGP management cost funding using a project narrative. Additionally, FEMA will not require detailed justifications to support management cost funding requests until 120 days after the date of declaration. This change will alleviate the burden to the grantee, at the busy time of initial response and recovery, and afford the opportunity for the grantee to provide a more thorough and accurate request to FEMA. In the interim final rule, the “Application procedures” section has been changed to “Procedures for requesting management cost funding.” 7. Grants Management Oversight Since publication of the proposed rule, and in response to comments, FEMA has decided to implement section 324 of the Stafford Act as part of the PA and HMGP programs and not as a separate grant program. Subsequently, this section of the rule has been changed to “Management cost funding oversight.” In the proposed rule, FEMA stated that management cost funds would need to be expended not later than 6 years from the date of major disaster or emergency declaration, or by 90 days after grant closeout, whichever is sooner. The 6 year limit was meant to encourage proper grant management, which includes timely grant closeout. In response to comments asking for additional time and after further analysis, FEMA has changed the 6 year limit to a maximum of 8 years for major disaster declarations and 2 years for emergency declarations, or 180 days after the latest performance period date of a non-management cost PA PW or HMGP project narrative, respectively, for both types of declarations, whichever is sooner. 8. Declarations Before October 1, 2002 Since publication of the proposed rule, FEMA has changed the implementation date of section 324 of the Stafford Act. Subsequently, § 207.9 of the rule has been changed to “Declarations before November 13, 2007.” This section includes provisions on administrative and management costs previously described in §§ 206.228 and 206.439. FEMA received four comments disagreeing with the provision in the proposed rule that imposed a timeframe on performance periods for declarations made before implementation of section 324. In the interest of ensuring responsible grant management practices and moving towards consistency in the administration of management and administrative costs provided for the affected programs, FEMA believes this provision, which allows a reasonable amount of time for grantees to comply, is an appropriate and necessary provision. 9. Review of Management Cost Rates One State commented that it did not believe the “solution to controlling expenses is to adopt the flat rate percentage as published and then go back to the drawing board after this rule is in effect” and suggested deleting the periodic review and documentation requirements. FEMA did not make this change, as the Stafford Act requires the review and documentation. Further, section 324 of the Stafford Act is not a “solution to controlling expenses,” but rather a simplification of the multiple methods currently used to contribute to grantee and subgrantee costs. III. Regulatory Requirements Administrative Procedure Act Even though an NPRM has been published, FEMA is publishing this interim final rule rather than proceeding to a final rule to provide the public with an additional opportunity to comment. FEMA has opted to provide this additional opportunity to comment although the changes to the regulations made in this interim rule are a logical outgrowth of the proposed regulations published in the NPRM and additional opportunity for public comment is not mandatory. As previously addressed in this preamble, the substantive changes to this regulation are as follows: • Because of comments that raised concerns of increased costs and workload due to the creation of a new grant process, FEMA revised the regulations to incorporate management cost funding into the existing PA and HMGP programs. • FEMA received comments from the public concerned that providing a combined set amount in management cost funds that would be available for both PA and HMGP would be impractical and create additional burden to program managers. Because of these comments, FEMA has revised the regulations to provide three management cost rates: PA pursuant to major disaster declarations; HMGP pursuant to major disaster declarations; and PA pursuant to emergency declarations. Due to the availability of better data provided by the use of the National Emergency Management Information System (NEMIS), in this interim rule FEMA updated the management cost rate calculations for those three rates. • FEMA received comments that providing management cost funds to grantees for both grantee and subgrantee use could be divisive unless State plans are in place and accepted prior to declaration. FEMA agreed and revised the regulation to require States to outline their plans for subgrantee treatment in the State administrative plans already required for PA and HMGP. • The implementation date was changed, as noted in the preamble to the NPRM. • In response to comments concerned that locking into a final amount at 9 months would cause unfair fiscal burdens, FEMA changed the final lock-in date for management costs to 12 months or after HMGP lock-in, whichever is later. • FEMA received several comments about the proposed process and timing for applying for management cost funding. As a response, FEMA will not require detailed justifications to support management cost funding requests until 120 days after the date of declaration to alleviate the burden on the grantee and afford them the opportunity to provide a more thorough and accurate request. • In response to comments asking for additional time to expend management cost funds, FEMA extended the limit of 6 years from the date of major disaster or emergency declaration or 90 days after grant closeout, whichever is sooner, to a maximum of 8 years for major disaster declarations and 2 years for emergency declarations, or 180 days after the latest performance period date of a non-management cost PA, PW or HMGP project narrative, respectively, for both types of declarations, whichever is sooner. Further, under 5 U.S.C. 553(b)(B) FEMA finds that good cause exists for not publishing a Supplemental Notice of Proposed Rulemaking (SNPRM), because publishing an SNPRM would be contrary to public interest since immediate action is needed to correct weaknesses in awarding funds to cover grantee operations associated with the administration of PA and HMGP grants. As stated earlier in the preamble to this interim rule, Public Law 106-390, section 202(b)(2), created section 324 of the Stafford Act which becomes effective when FEMA has promulgated a management cost rate regulation (this regulation). Until this regulation is published, management cost funding is provided pursuant to subsection 406(f) of the Stafford Act, OMB Circular No. A-87, and part 13. In its “Review of FEMA Policy for Funding Public Assistance Administrative Costs” (GC-HQ-06-40) dated April 28, 2006, FEMA was advised by the Department of Homeland Security Office of Inspector General (OIG), that it should take immediate action to implement section 324 of the Stafford Act. This was reiterated in the OIG's “Review of FEMA Internal Controls for Funding Administrative Cost under State Management Grants” memorandum dated January 9, 2007 (OIG-07-21). This interim rule is intended to establish management cost rates to replace the administrative allowance and state management grants and address funding and related control weaknesses immediately, while continuing to take public comment and, perhaps, further amend the regulations in light of those comments. Pursuant to 5 U.S.C. 553(d), FEMA is making this rule effective 30 days after publication in the **Federal Register** . FEMA invites further comment from the public on this interim final rule. Congressional Review of Agency Rulemaking FEMA has sent this interim final rule to the Congress and to the Government Accountability Office under the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801-808. The rule in not a “major rule” within the meaning of that Act and will not result in an annual effect on the economy of 100,000,000 or more. Moreover, it will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Nor does FEMA expect that it will have “significant adverse effects” on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises. National Environmental Policy Act

(NEPA)FEMA explained when the proposed rule was published that § 10.8(d)(2)(ii) excludes this rule from the preparation of an environmental assessment or environmental impact statement, where the rule relates to actions that qualify for categorical exclusion under § 10.8(d)(2)(i), such as the provision of funding for management costs. No commenters disagreed with our determination. FEMA has not prepared an environmental assessment or environmental impact statement for this interim final rule. Paperwork Reduction Act of 1995 In the proposed rule, FEMA proposed to provide management cost funding through a new grant program. Because that new grant program would collect new information from the public, FEMA determined that it would be subject to the Paperwork Reduction Act

(PRA)of 1995, 44 U.S.C. 3501-3520, and obtained Office of Management and Budget

(OMB)approval for Control Number 1660-0063, Management Costs information collection. As a result of public comments and further analysis, as discussed elsewhere in the preamble of this interim rule FEMA has withdrawn its proposal to create a new grant program, and has decided to implement section 324 of the Stafford Act as part of the already existing PA and HMGP programs. FEMA submitted an OMB83D form on September 16, 2005 to discontinue OMB Control Number 1660-0063, Management Costs information collection; OMB approved the discontinuance on September 21, 2005. FEMA no longer intends to collect information with respect to that proposed grant program. In this interim rule, FEMA implements section 324 by continuing to use the same application processes for management costs as it is currently using, rather than as a separate grant program. That is, grantees will continue to apply for PA management cost funding using the Project Worksheet

(PW)and its associated forms, if applicable, as already approved by OMB. The PW and associated forms for PA management cost funding are approved under OMB Control Number 1660-017, Public Assistance Progress Report and Program Forms information collection which expires on October 31, 2008. HMGP management cost funding would be provided using the project narrative approved under OMB Control Number 1660-0076, Hazard Mitigation Grant Program Application and Reporting information collection which expires May 31, 2010. Use of these collections under this interim final rule does not impose additional burden under those program collections. By allowing grantees to continue to request management cost funding via the same processes with which they are familiar, FEMA expects that this rule will simplify the process and reduce the burden to the public. Regulatory Flexibility Act Under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ), agencies must consider the impact of their rulemakings on “small entities” (small businesses, small organizations and local governments). When 5 U.S.C. 553 requires an agency to publish a notice of proposed rulemaking, the Regulatory Flexibility Act requires a regulatory flexibility analysis for both the proposed rule and the final rule if the rulemaking could “have a significant economic impact on a substantial number of small entities.” The Act also provides that if a regulatory flexibility analysis is not required, the agency must certify in the rulemaking document that the rulemaking will not “have a significant economic impact on a substantial number of small entities.” This interim final rule affects grantees that are State governments, or in certain situations, Indian tribal governments. It does not impact private sector entities. Further, the result of this interim final rule will be to reduce the administrative burden on both grantees and the Federal government by simplifying and clarifying the application process, grant administration, and reimbursement methods for management and administration costs by reducing the current three methods and processes to one. Further, grantees currently make numerous petitions for payment. Implementation of this interim final rule is expected to reduce the number of times grantees will need to petition to receive payment for management costs. This interim final rule does not impact the amount of funding available for management costs, as the percentages for reimbursement proposed are based on historical average obligations. Although there is a proposed cap on the amount of management costs that can be provided per declaration, the interim final rule provides a mechanism for waiver in extraordinary circumstances. Because this interim final rule does not impact the amount of funds provided to grantees, but simply reduces the administrative burden to State and Indian tribal government grantees, FEMA certifies that it will not have a significant economic impact on a substantial number of small entities. Executive Order 12866, Regulatory Planning and Review Under Executive Order 12866, 58 FR 51735, Oct. 4, 1993, a significant regulatory action is subject to OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1)Have an annual effect on the economy of 100 million or more, or may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities;

(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. This rule is not a “significant regulatory action” under Executive Order 12866; therefore, OMB has not reviewed it under that Order. As FEMA stated in the proposed rule, it would not have an annual effect on the economy of 100 million or more and FEMA knows of no other conditions that would qualify the rule as a “significant regulatory action” within the definition of section 3(f) of the Executive Order. As explained in the Regulatory Flexibility Act section, this interim final rule does not impact the amount of funding that will be provided by FEMA for management costs. Rather, the interim final rule simplifies and clarifies the processing and administration of management cost funding. The interim final rule will reduce the administrative burden to both grantees and FEMA by reducing the multiple methods of reimbursement from three to one. Further, grantees currently make numerous petitions for payment. Implementation of this interim final rule will greatly reduce the number of times grantees will need to petition to receive payment for management costs. This interim final rule does not materially alter the budgetary impact of the Public Assistance and Hazard Mitigation grant programs as the amount of funding available for management costs under this interim final rule is based on historical average obligations. Although there is a proposed cap on the amount of management costs that can be provided per declaration, the interim final rule provides a mechanism for waiver in extraordinary circumstances. Because this interim final rule simplifies, clarifies, and reduces the administrative burden to grantees and FEMA, there are no additional costs due to this regulatory action. Executive Order 13132, Federalism Executive Order 13132 sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, 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.” Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action. FEMA reviewed the proposed rule under Executive Order 13132 and determined that the rule did not have “substantial direct effects on the States” and therefore did not have the type of federalism implications contemplated by the Executive Order. Four commenters disagreed, believing that there would be a shift of power and responsibilities. FEMA believes that the interim final rule is consistent with the terms of Executive Order 13132 in that it “shall grant the States the maximum administrative discretion possible” and “shall encourage States to develop their own policies to achieve program objectives” as directed by the Executive Order. The interim final rule does not significantly affect the rights, roles, and responsibilities of States, involves no additional preemption of State law, and does not limit State policymaking discretion. Executive Order 12898, Environmental Justice Under Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994, FEMA has undertaken to incorporate environmental justice into its policies and programs. The Executive Order requires each Federal agency to conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that those programs, policies, and activities do not have the effect of excluding persons from participation in, denying persons the benefits of, or subjecting persons to discrimination because of their race, color, or national origin. FEMA stated when it published the proposed rule that no action it could anticipate under the proposed rule would have a disproportionately high and adverse human health effect on any segment of the population. No commenter disagreed with this determination and accordingly, FEMA reiterates that the requirements of the Executive Order do not apply to this rule. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments Under Executive Order 13175, FEMA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by the tribal government, or FEMA consults with those governments. This rule is required by statute, and, as FEMA stated when the proposed rule was published, it did not believe that the rule would significantly and uniquely affect the communities of Indian tribal governments, or the relationship between the Federal Government and Indian tribes, or the distribution of power and responsibilities between the Federal Government and Indian tribes. Moreover, the rule did not impose substantial direct compliance costs on tribal governments, nor did it preempt tribal law, impair treaty rights or limit the self-governing powers of tribal governments. FEMA received no comments disagreeing with this determination. The interim final rule will also not significantly and uniquely affect the communities of Indian tribal governments, or the relationship between the Federal Government and Indian tribes. Moreover, the rule does not impose substantial direct compliance costs on tribal governments, nor does it preempt tribal law, impair treaty rights or limit the self-governing powers of tribal governments. List of Subjects 44 CFR Part 206 Administrative costs, Administrative practice and procedure, Disaster assistance, Grant programs, Management costs, Reporting and recordkeeping requirements. 44 CFR Part 207 Administrative costs, Administrative practice and procedure, Disaster assistance, Grant programs, Management costs, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, the Federal Emergency Management Agency amends 44 CFR chapter I as set forth below: PART 206—FEDERAL DISASTER ASSISTANCE 1. Revise the part heading of 44 CFR part 206 as set forth above: 2. The authority citation for part 206 is revised to read as follows: Authority: Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 through 5206; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166. 3. Add new paragraph (b)(1)(iii)(K) to § 206.207 to read as follows: § 206.207 Administrative and audit requirements.

(b)* * *

(1)* * *

(iii)* * *

(K)Determining the reasonable percentage or amount of pass-through funds for management costs provided under 44 CFR part 207 that the grantee will make available to subgrantees, and the basis, criteria, or formula for determining the subgrantee percentage or amount. 4. Remove paragraphs (a)(2), (a)(3), and (b); reserve paragraph (b); redesignate paragraph (a)(4) as paragraph (a)(2) and revise it; and add new paragraph (a)(3) to § 206.228 to read as follows: § 206.228 Allowable costs.

(a)* * *

(2)*Force Account Labor Costs.* The straight- or regular-time salaries and benefits of a subgrantee's permanently employed personnel are not eligible in calculating the cost of eligible work under sections 403 and 407 of the Stafford Act, 42 U.S.C. 5170b and 5173. For the performance of eligible permanent restoration under section 406 of the Stafford Act, 42 U.S.C. 5172, straight-time salaries and benefits of a subgrantee's permanently employed personnel are eligible.

(3)Administrative and management costs for major disasters and emergencies will be paid in accordance with 44 CFR part 207.

(b)[Reserved] 5. Add new paragraph (b)(4)(xiv) to § 206.437 to read as follows: § 206.437 State administrative plan.

(b)* * *

(4)* * *

(xiv)Determine the percentage or amount of pass-through funds for management costs provided under 44 CFR part 207 that the grantee will make available to subgrantees, and the basis, criteria, or formula for determining the subgrantee percentage or amount. 6. Revise § 206.439 to read as follows: § 206.439 Allowable costs.

(a)General requirements for determining allowable costs are established in 44 CFR 13.22. Exceptions to those requirements as allowed in 44 CFR 13.4 and 13.6 are explained in paragraph

(b)of this section.

(b)Administrative and management costs for major disasters will be paid in accordance with 44 CFR part 207. 7. Add part 207 to read as follows: PART 207—MANAGEMENT COSTS Sec. 207.1 Purpose. 207.2 Definitions. 207.3 Applicability and eligibility. 207.4 Responsibilities. 207.5 Determination of management cost funding. 207.6 Use of funds. 207.7 Procedures for requesting management cost funding. 207.8 Management cost funding oversight. 207.9 Declarations before November 13, 2007. 207.10 Review of management cost rates. Authority: Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 through 5206; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166. § 207.1 Purpose. The purpose of this part is to implement section 324 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. 5165b. § 207.2 Definitions. *Cap* means the maximum dollar amount that may be provided to a grantee for management cost funds for a single declaration pursuant to § 207.5(c) of this part. *Chief Financial Officer (CFO)* is the Chief Financial Officer of FEMA, or his/her designated representative. *Cognizant Agency* means the Federal agency responsible for reviewing, negotiating, and approving cost allocation plans or indirect cost proposals developed on behalf of all Federal agencies. The Office of Management and Budget

(OMB)publishes a listing of cognizant agencies. *Grant* means an award of financial assistance making payment in cash, property, or in kind for a specified purpose, by the Federal Government to an eligible grantee. *Grantee* for purposes of this part means the government to which a Public Assistance

(PA)or Hazard Mitigation Grant Program

(HMGP)grant is awarded that is accountable for the use of the funds provided. The grantee is the entire legal entity even if only a particular component of the entity is designated in the grant award document. Generally, the State is the grantee. However, after a declaration, an Indian tribal government may choose to be a grantee, or may act as a subgrantee under the State for purposes of administering a grant under PA, HMGP, or both. When an Indian tribal government has chosen to act as grantee, it will also assume the responsibilities of a “grantee” under this part for the purposes of administering management cost funding. *Hazard Mitigation Grant Program (HMGP)* means the program implemented at part 206, subpart N of this chapter. *HMGP lock-in ceiling* means the level of HMGP funding available to a grantee for a particular disaster declaration. *HMGP project narrative* refers to the request submitted for HMGP funding. *Indian tribal government* is a Federally recognized governing body of an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of Interior acknowledges to exist as an Indian tribe under the Federally Recognized Tribe List Act of 1994, 25 U.S.C. 479a. This does not include Alaska Native corporations, the ownership of which is vested in private individuals. *Indirect Costs* means costs that are incurred by a grantee for a common or joint purpose benefiting more than one cost objective that are not readily assignable to the cost objectives specifically benefited. *Lock-in* means the amount of management cost funds available to a grantee for PA or HMGP, respectively, for a particular major disaster or emergency, as FEMA determines at 30 days, 6 months, and 12 months or upon calculation of the final HMGP lock-in ceiling, whichever is later. *Management Costs* means any indirect costs, administrative expenses, and any other expenses not directly chargeable to a specific project that are reasonably incurred by a grantee or subgrantee in administering and managing a PA or HMGP grant award. For HMGP, management cost funding is provided outside of Federal assistance limits defined at § 206.432(b) of this chapter. *Project* refers to a project as defined at § 206.201(i) of this chapter for PA or eligible activities as defined at § 206.434(d) of this chapter for HMGP. *Project Worksheet (PW)* refers to FEMA Form 90-91, or any successor form, on which the scope of work and cost estimate for a logical grouping of work required under the PA program as a result of a declared major disaster or emergency is documented. *Public Assistance (PA)* means the program implemented at part 206, subparts G and H of this chapter. *Regional Administrator* is the head of a FEMA regional office, or his/her designated representative, appointed under section 507 of the Post-Katrina Emergency Management Reform Act of 2006 (Pub. L. 109-295). The term also refers to Regional Directors as discussed in Part 2 of this chapter. *Stafford Act* refers to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5121-5206). *State* is any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. *Subgrantee* means the government or other legal entity to which a grantee awards a subgrant and which is accountable to the grantee for the use of the funds provided. Subgrantees can be a State agency, local government, private nonprofit organization, or Indian tribal government. § 207.3 Applicability and eligibility. Only PA and HMGP grantees with PA and HMGP grants awarded pursuant to major disasters and emergencies declared by the President on or after November 13, 2007 are eligible to apply to FEMA for management cost funding under this part. § 207.4 Responsibilities.

(a)*General.* This section identifies key responsibilities of FEMA and grantees in carrying out section 324 of the Stafford Act, 42 U.S.C. 5165b. These responsibilities are unique to the administration of this part and are in addition to common Federal Government requirements of grantees and subgrantees, consistent with OMB circulars and other applicable requirements, such as part 13 of this chapter.

(b)*FEMA.* FEMA is responsible for:

(1)Determining the lock-in amount for management costs in accordance with § 207.5.

(2)Obligating funds for management costs in accordance with § 207.5(b).

(3)Deobligating funds provided for management costs not disbursed in accordance with § 207.8(b).

(4)Reviewing management cost rates not later than 3 years after this rule is in effect and periodically thereafter.

(c)*Grantee.* The grantee must:

(1)Administer management cost funds to ensure that PA and HMGP, as applicable, are properly implemented and closed out in accordance with program timeframes and guidance.

(2)Determine the reasonable amount or percentage of management cost funding to be passed through to subgrantees for contributions to their costs for administering PA and HMGP projects and ensure that it provides such funds to subgrantees.

(3)Address procedures for subgrantee management costs amount or percentage determination, pass through, closeout, and audit in the State administrative plan required in § 206.207(b) of this chapter for PA and § 206.437 of this chapter for HMGP. § 207.5 Determination of management cost funding.

(a)*General.* This section describes how FEMA determines the amount of funds that it will contribute under this part for management costs for PA and/or HMGP for a particular major disaster or emergency.

(b)*Lock-in.* FEMA will determine the amount of funds that it will make available for management costs by a lock-in, which will act as a ceiling for funds available to a grantee, including its subgrantees.

(1)Not earlier than 30 days and not later than 35 days from the date of declaration, FEMA will provide the grantee preliminary lock-in amount(s) for management costs based on the projections at that time of the Federal share for financial assistance for PA and HMGP, as applicable. In accordance with § 207.7(c), FEMA will obligate 25 percent of the estimated lock-in amount(s) to the grantee.

(2)For planning purposes, FEMA will revise the lock-in amount(s) at 6 months after the date of the declaration. In accordance with § 207.7(e), FEMA may obligate interim amount(s) to the grantee.

(3)FEMA will determine the final lock-in amount(s) 12 months after date of declaration or after determination of the final HMGP lock-in ceiling, whichever is later. FEMA will obligate the remainder of the lock-in amount(s) to the grantee in accordance with § 207.7(f).

(4)Rates.

(i)For major disaster declarations, FEMA will determine the lock-in for PA based on a flat percentage rate of the Federal share of projected eligible program costs for financial assistance pursuant to sections 403, 406, and 407 of the Stafford Act, 42 U.S.C. 5170b, 5172, and 5173, respectively, but not including direct Federal assistance. For major disaster declarations on or after November 13, 2007, the PA rate will be 3.34 percent.

(ii)For major disaster declarations, FEMA will determine the lock-in for HMGP based on a flat percentage rate of the Federal share of projected eligible program costs under section 404 of the Stafford Act, 42 U.S.C. 5170c. For major disaster declarations on or after November 13, 2007, the HMGP rate will be 4.89 percent.

(iii)For emergency declarations, FEMA will determine the lock-in for PA based on a flat percentage rate of the Federal share of projected eligible program costs for financial assistance (sections 502 and 503 of the Stafford Act, 42 U.S.C. 5192 and 5193, respectively), but not including direct Federal assistance. For emergency declarations on or after November 13, 2007 the rate will be 3.90 percent.

(c)The dollar amount provided to a grantee for management cost funds for a single declaration will not exceed 20,000,000, except as described in paragraphs

(d)and

(e)of this section.

(d)The grantee must justify in writing to the Regional Administrator any requests to change the amount of the lock-in or the cap, extend the time period before lock-in, or request an interim obligation of funding at the time of the 6-month lock-in adjustment. The Regional Administrator will recommend to the Chief Financial Officer whether to approve the extension, change, or interim obligation. Extensions, changes to the lock-in, or interim obligations will not be made without the approval of the Chief Financial Officer.

(e)The Chief Financial Officer may change the amount of the lock-in or the cap, or extend the time before lock-in, if the Chief Financial Officer determines that the projections used to determine the lock-in were inaccurate to such a degree that the change to the lock-in would be material, or for other reasons in his or her discretion that may reasonably warrant such changes. The Chief Financial Officer will not make such changes without consultation with the grantee and the Regional Administrator. § 207.6 Use of funds.

(a)The grantee or subgrantee must use management cost funds provided under this part in accordance with § 13.22 of this chapter and only for costs related to administration of PA or HMGP, respectively. All charges must be properly documented in accordance with § 207.8(f).

(b)Indirect costs may not be charged directly to a project or reimbursed separately, but rather are considered to be eligible management costs under this part.

(c)Activities and costs that can be directly charged to a project with proper documentation are not eligible for funding under this part. § 207.7 Procedures for requesting management cost funding.

(a)*General.* This section describes the procedures to be used by the grantee in requesting management cost funding.

(b)*State Administrative Plan Requirements.* State administrative plans, as required in § 206.207(b) of this chapter for PA and § 206.437 of this chapter for HMGP, must be amended to include procedures for subgrantee management costs amount or percentage determination, pass through, closeout, and audit, as required by § 207.4(c)(3) before management cost funds will be provided under this part.

(c)*Initial Funding Request Submission.* Upon notification of the preliminary lock-in amount(s) for management costs based on the Federal share of the projected eligible program costs for financial assistance at that time for PA and HMGP, as applicable, the grantee must submit its initial management cost funding request to the Regional Administrator. FEMA must receive the initial funding request before it will provide any management cost funds under this part.

(1)For PA management costs, funding requests shall be submitted using a PW.

(2)For HMGP management costs, funding requests shall be submitted using an HMGP project narrative.

(d)*Request Documentation.* The grantee is required to submit, no later than 120 days after the date of declaration, documentation to support costs and activities for which the projected lock-in for management cost funding will be used. In extraordinary circumstances, FEMA may approve a request by a grantee to submit support documentation after 120 days. FEMA will work with the grantee to approve or reject the request within 30 days of receipt of the request. If the request is rejected, the grantee will have 30 days to resubmit it for reconsideration and approval. FEMA will not obligate the balance of the management costs lock-in pursuant to a final funding request as described in paragraph

(f)of this section or any interim amounts as allowed under paragraph

(e)of this section unless the grantee's documentation is approved. The documentation must include:

(1)A description of activities, personnel requirements, and other costs for which the grantee will use management cost funding provided under this part;

(2)The grantee's plan for expending and monitoring the funds provided under this part and ensuring sufficient funds are budgeted for grant closeout; and

(3)An estimate of the percentage or amount of pass-through funds for management costs provided under this part that the grantee will make available to subgrantees, and the basis, criteria, or formula for determining the subgrantee percentage or amount ( *e.g.* , number of projects, complexity of projects, X percent to any subgrantee).

(e)*Interim Funding Request.* If the grantee can justify a bona fide need for an additional obligation of management cost funds at 6 months, the grantee may submit a request to the Regional Administrator. Any interim obligations by FEMA must be approved by the Chief Financial Officer and will not exceed an amount equal to 10 percent of the 6-month lock-in amount, except in extraordinary circumstances.

(f)*Final Funding Request.* Upon notification of the final lock-in amount(s), the grantee must submit a final management cost funding request to the Regional Administrator. Any necessary revisions to supporting documentation must be attached to the final funding request. § 207.8 Management cost funding oversight.

(a)*General.* The grantee has primary responsibility for grants management activities and accountability of funds provided for management costs as required by part 13 of this chapter, especially §§ 13.20 and 13.36. The grantee is responsible for ensuring that subgrantees meet all program and administrative requirements.

(b)*Period of availability.*

(1)For major disaster declarations, the grantee may expend management cost funds for allowable costs for a maximum of 8 years from the date of the major disaster declaration or 180 days after the latest performance period date of a non-management cost PA PW or HMGP project narrative, respectively, whichever is sooner.

(2)For emergency declarations, the grantee may expend management cost funds for allowable costs for a maximum of 2 years from the date of the emergency declaration or 180 days after the latest performance period of a non-management cost PA PW, whichever is sooner.

(3)The period of availability may be extended only at the written request of the grantee, with the recommendation of the Regional Administrator, and with the approval of the Chief Financial Officer. The grantee must include a justification in its request for an extension, and must demonstrate that there is work in progress that can be completed within the extended period of availability. In no case will an extended period of availability allow more than 180 days after the expiration of any performance period extensions granted under PA or HMGP for project completion. FEMA will deobligate any funds not liquidated by the grantee in accordance with § 13.23 of this chapter.

(c)*Reporting requirements.* The grantee must provide quarterly progress reports on management cost funds to the Regional Administrator as required by the FEMA-State Agreement.

(d)*Closeout.* The grantee has primary responsibility for the closeout tasks associated with both the program and subgrantee requirements. Complying with each program's performance period requirement, the grantee must conduct final inspections for projects, reconcile subgrantee expenditures, resolve negative audit findings, obtain final reports from subgrantees and reconcile the closeout activities of subgrantees with PA and HMGP grant awards.

(e)*Audit requirements.* Uniform audit requirements in § 13.26 of this chapter apply to all assistance provided under this part.

(f)*Document Retention.* In compliance with State law and procedures and with § 13.42 of this chapter, grantees must retain records, including source documentation to support expenditures/costs incurred for management costs, for 3 years from the date of submission of the final Financial Status Report to FEMA that is required for PA and HMGP. The grantee is responsible for resolving questioned costs that may result from audit findings during the 3-year-record-retention period and returning any disallowed costs from ineligible activities. § 207.9 Declarations before November 13, 2007.

(a)*General.* This section describes how FEMA provides administrative and management cost funding for PA and HMGP for major disasters or emergencies declared before November 13, 2007.

(b)*Eligible direct costs.* Eligible direct costs to complete approved activities are governed by part 13 of this chapter. The eligible direct costs for administration and management of the program are divided into two categories as follows:

(1)*Grantee.*

(i)*Statutory administrative costs.* FEMA may provide funds to the grantee to cover the extraordinary costs incurred in preparing project worksheets or applications, final inspection reports, quarterly reports, final audits, and related field inspections by State employees, including overtime pay and per diem and travel expenses, but not including regular time for such employees. FEMA will base the funds on the following percentages of the total amount of assistance provided (Federal share) for all subgrantees in the State under sections 403, 404, 406, 407, 502, and 503 of the Stafford Act (42 U.S.C. 5170b, 5170c, 5172, 5173, 5192, and 5193, respectively):

(A)For the first 100,000 of total assistance provided (Federal share), 3 percent of such assistance.

(B)For the next 900,000, 2 percent of such assistance.

(C)For the next 4,000,000, 1 percent of such assistance.

(D)For assistance over $5,000,000, one-half of 1 percent of such assistance.

(ii)*State management administrative costs.* Except for the items listed in paragraph (b)(1)(i) of this section, other administrative costs will be paid in accordance with § 13.22 of this chapter. The grantee and FEMA will share such costs under the cost share provisions of applicable PA and HMGP regulations.

(2)*Subgrantee.* The grantee may provide funds to the subgrantee to cover necessary costs of requesting, obtaining, and administering Federal disaster assistance subgrants, based on the following percentages of net eligible costs under sections 403, 404, 406, 407, 502, and 503 of the Stafford Act (42 U.S.C. 5170b, 5170c, 5172, 5173, 5192, and 5193, respectively), for an individual applicant (applicants in this context include State agencies):

(i)For the first $100,000 of net eligible costs, 3 percent of such costs.

(ii)For the next $900,000, 2 percent of such costs.

(iii)For the next $4,000,000, 1 percent of such costs.

(iv)For those costs over $5,000,000, one-half of 1 percent of such costs.

(c)*Eligible indirect costs:*

(1)*Grantee.* Indirect costs of administering the disaster program are eligible in accordance with the provisions of part 13 of this chapter and OMB Circular No. A-87, if the grantee provides FEMA with a current Indirect Cost Rate Agreement approved by its Cognizant Agency.

(2)*Subgrantee.* No indirect costs of a subgrantee are separately eligible because the percentage allowance in paragraph (b)(2) of this section covers necessary costs of requesting, obtaining and administering Federal assistance.

(d)*Availability.*

(1)For major disaster declarations, FEMA will reimburse grantee eligible costs as described in this section at (b)(1)(ii) and (c)(1) for a maximum of 8 years from the date of the major disaster declaration or 180 days after the latest performance period date of a non-management cost PA PW or predecessor form or HMGP project narrative, respectively, whichever is sooner.

(2)For emergency declarations, FEMA will reimburse grantee eligible costs as described in this section at (b)(1)(ii) and (c)(1) for a maximum of 2 years from the date of the emergency declaration or 180 days after the latest performance period of a non-management cost PA PW or predecessor form, whichever is sooner.

(3)The reimbursement of grantee eligible costs as described in this section at (b)(1)(ii) and (c)(1) may be provided by FEMA after the periods of availability described in this section only at the written request of the grantee, with the recommendation of the Regional Administrator, and with the approval of the Chief Financial Officer. The grantee must include a justification in its request for further reimbursement, and must demonstrate that there is work in progress that can be completed within the extended period of reimbursement. In no case will reimbursement be provided after 180 days after the expiration of any performance period extensions granted under PA or HMGP for project completion. § 207.10 Review of management cost rates.

(a)FEMA will review management cost rates not later than 3 years after this rule is in effect and periodically thereafter.

(b)In order for FEMA to review the management cost rates established, and in accordance with part 13 of this chapter, the grantee and subgrantee must document all costs expended for management costs (including cost overruns). After review of this documentation, FEMA will determine whether the established management cost rates are adequate for the administration and closeout of the PA and HMGP programs. Dated: October 4, 2007. R. David Paulison, Administrator, Federal Emergency Management Agency. [FR Doc. E7-20035 Filed 10-10-07; 8:45 am] BILLING CODE 9110-49-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 12 [EB Docket No. 06-119; WC Docket No. 06-63; FCC 07-177] Recommendations of the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks AGENCY: Federal Communications Commission. ACTION: Final rule; petition for reconsideration. SUMMARY: In this document, the Federal Communications Commission (Commission) considers petitions for reconsideration and/or clarification (Petitions) of the Order that adopted the Commission's rule, which required that certain local exchange carriers

(LECs)and commercial mobile radio service

(CMRS)providers have an emergency backup power source for all assets that are normally powered from local AC commercial power. The Commission modifies its rules to address several meritorious issues raised in the petitions. These modifications will facilitate carrier compliance and reduce the burden on LECs and CMRS providers, while continuing to further important homeland security and public safety goals. DATES: The rules in 47 CFR 12.2 contains information collection requirements that have not been approved by the Office of Management and Budget (OMB). The Federal Communications Commission will publish a document in the **Federal Register** announcing the effective date. FOR FURTHER INFORMATION CONTACT: Jean Ann Collins, Deputy Division Chief, Communications Systems Analysis Division, Public Safety and Homeland Security Bureau, Federal Communications Commission at

(202)418-2792. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, send an e-mail to *PRA@fcc.gov* or contact Judith B. Herman at

(202)418-0214. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order on Reconsideration in EB Docket No. 06-119 and WC Docket No. 06-63, FCC 07-177, adopted October 2, 2007, and released October 4, 2007. The full text of this document is available for public inspection and copying on the Commission's Internet site at *http://www.fcc.gov.* It is also available for inspection and copying during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Room CY-B402, 445 12th Street, SW., Washington, DC 20554, telephone

(202)488-5300, fax

(202)488-5563; or via e-mail *FCC@BCPIWEWEB.COM.* Alternative formats (computer diskette, large print, audio cassette, and Braille) are available to persons with disabilities by sending an e-mail to *FCC504@fcc.gov* or calling the Consumer and Governmental Affairs Bureau at

(202)418-0530, TTY

(202)418-0432. Synopsis of the Order on Reconsideration Background In January 2006, Chairman Kevin J. Martin established the Katrina Panel pursuant to the Federal Advisory Committee Act, Public Law 92-463, as amended. The mission of the Katrina Panel was to review the impact of Hurricane Katrina on communications infrastructure in the areas affected by the hurricane and to make recommendations to the Commission regarding ways to improve disaster preparedness, network reliability and communications among first responders such as police, fire fighters, and emergency medical personnel. The Katrina Panel submitted its report on June 12, 2006. The Katrina Panel's report described the impact of the worst natural disaster in the Nation's history, as well as the overall public and private response and recovery efforts. The Commission's goal is to take the lessons learned from that disaster and build upon them to promote more effective, efficient response and recovery efforts, as well as heightened readiness and preparedness. The Commission issued a Notice of Proposed Rulemaking ( *NPRM* ) on June 19, 2006 inviting comment on what actions the Commission should take to address the Katrina Panel's recommendations. On July 26, 2006, the Commission issued a public notice asking commenters to address the applicability of the Katrina Panel's recommendations to all types of natural disasters ( *e.g.* , earthquakes, tornadoes, hurricanes, forest fires) as well as other types of incidents ( *e.g.* , terrorist attacks, influenza pandemic, industrial accidents). The public notice also asked parties to address whether the panel's recommendations are broad enough to take into account the diverse topography of our Nation, the susceptibility of a region to a particular type of disaster, and the multitude of communications capabilities a region may possess. The Commission received over 100 comments and reply comments in response to the *NPRM* . In June 2007, the Commission released the *Katrina Panel Order* directing the Public Safety and Homeland Security Bureau (PSHSB) to implement several of the recommendations made by the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks (Katrina Panel). Among other things, the Commission adopted a rule requiring some communications providers to have emergency/backup power. The backup power rule adopted specifically states: Local exchange carriers (LECs), including incumbent LECs (ILECs) and competitive LECs (CLECs), and commercial mobile radio service

(CMRS)providers must have an emergency backup power source for all assets that are normally powered from local AC commercial power, including those inside central offices, cell sites, remote switches and digital loop carrier system remote terminals. LECs and CMRS providers should maintain emergency backup power for a minimum of 24 hours for assets inside central offices and eight hours for cell sites, remote switches and digital loop carrier system remote terminals that are normally powered from local AC commercial power. LECs that meet the definition of a Class B company as set forth in § 32.11(b)(2) of the Commission's rules and non-nationwide CMRS providers with no more than 500,000 subscribers are exempt from this rule. On August 2, 2007, the Commission released an Order that extended the effective date of § 12.2 of the Commission's rules, the backup power rule adopted in the *Katrina Panel Order* , to October 9, 2007. The Commission did so on its own motion in order to provide additional time to consider the issues raised by CTIA in its Motion for Administrative Stay and to hear from other concerned parties on the issues raised in that motion. As indicated above, seven petitions were filed seeking reconsideration and/or clarification of the backup power rule adopted by the Commission in the *Katrina Panel Order* . The petitioners assert that the Commission should rescind, modify and/or clarify the backup power rule adopted in the *Katrina Panel Order* . The Commission also received five timely comments to these petitions and several additional *ex parte* comments. Discussion Petitioners argue that the Commission should rescind or substantially modify the backup power rule. Among other things, several petitioners assert that the rule should be modified to implement the Network Reliability and Interoperability Council

(NRIC)best practice as recommended by the Katrina Panel and that the Commission should clarify that the rule applies only to assets directly related to the provision of critical communications services. Finally, some petitioners argue that, if the Commission wants to pursue implementation of a backup power rule, it should issue a Notice of Inquiry or Notice of Proposed Rulemaking. *Administrative Procedure Act

(APA)Notice and Comment.* Several petitioners contend that the Commission's adoption of the backup power rule violated the Administrative Procedure Act

(APA)by failing to provide adequate notice that it was considering the adoption of that rule and failing to provide opportunity to comment. They argue that the *NPRM* was too general to adequately support the backup power rule ultimately adopted and that the final rule deviates too sharply from the initial proposals to satisfy the notice and comment requirements. Petitioners contend that the *NPRM* never discussed the backup power issue in terms of a potential mandate and only asked how the Commission could best encourage implementation of the Katrina Panel's backup power recommendation that the Commission encourage the implementation of NRIC VII Recommendation 7-7-5204. Petitioners also assert that the *NPRM* did not suggest that the physical scope of the backup power recommendation might extend to all cell sites other remote assets or that the Commission intended to select a specific durational requirement for emergency power, let alone an eight- or twenty-four hour standard. Section 553(b) and

(c)of the APA requires agencies to give public notice of a proposed rule making that includes “either the terms or substance of the proposed rule or a description of the subjects and issues involved” and to give interested parties an opportunity to submit comments on the proposal. The notice “need not specify every precise proposal which [the agency] may ultimately adopt as a rule”; it need only “be sufficient to fairly apprise interested parties of the issues involved.” In particular, the APA's notice requirements are satisfied where the final rule is a “logical outgrowth” of the actions proposed. In this instance, the Commission provided adequate notice in compliance with the APA regarding the backup power rule. The Katrina Panel Report repeatedly stated that the lack of adequate backup power for communications facilities was a critical problem after Katrina that caused communications network interruptions and hampered recovery efforts. These findings provided the context for the Report's recommendation that the Commission encourage the NRIC best practice that states: “[s]ervice providers, network operators and property managers should ensure availability of emergency/backup power ( *e.g.* , batteries, generators, fuel cells) to maintain critical communications services during times of commercial power failures. * * *” In the *NPRM* , the Commission noted that the Katrina Panel observed significant challenges to maintenance and restoration of communications services after Hurricane Katrina, due in part to problems with access to key resources such as power and/or generator fuel. The Commission also noted that the Katrina Panel recommended that the Commission encourage the implementation of certain NRIC best practices intended to promote the reliability and resiliency of the 911 and E911 architecture, including a recommendation that service providers and network operators should “ensure” availability of emergency backup power capabilities (located on-site, when appropriate). The Commission sought comment on how the Commission can best encourage implementation of these recommendations consistent with its statutory authority and jurisdiction and welcomed further suggestions on measures that could be taken to strengthen 911 and E911 infrastructure and architecture. The Commission also invited “broad comment on the Independent Panel's recommendations and on the measures the Commission should take to address the problems identified” and to build upon the lessons learned from Hurricane Katrina and promote greater resiliency and reliability of communications infrastructure, heightened readiness and preparedness, and more effective, efficient response and recovery efforts, in the future. Further, in the *NPRM* , the Commission sought comment on whether it should rely on voluntary consensus recommendations or whether it should rely on other measures for enhancing readiness and promoting more effective response efforts. The *NPRM* also invited comment on whether the Katrina Panel's observations warranted additional measures or steps beyond the report's specific recommendations and welcomed suggestions and recommendations of different actions or additional measures beyond the Katrina Panel's recommendations. In its report and recommendations, the Katrina Panel found that the lack of power and/or fuel was one of three main problems that caused the majority of communications network interruptions and significant impediments to the recovery effort in the aftermath of Hurricane Katrina. The Katrina Panel Report also noted that during and after the hurricane, the power needed to support the communications networks was generally unavailable throughout the region and that backup batteries and generators were required for communications systems to continue to operate. The Katrina Panel further noted that “the majority of the adverse effects and outages encountered by wireless providers were due to a lack of commercial power or a lack of transport connectivity to the wireless switch.” Additionally, the Katrina Panel Report stated that “[w]ireless providers cited security for their personnel, access and fuel as the most pressing needs and problems affecting restoration of wireless service” and that the loss of power in the wireline telephone network also had a huge impact on the ability of public safety systems to function. The Katrina Panel noted that electric utility networks had a high rate of survivability following Hurricane Katrina due, in part, to the fact that they were built with significant onsite backup power supplies (batteries and generators). Although the Katrina Panel found that “the communications industry has generally been diligent in deploying backup batteries and generators and ensuring that these systems have one to two days of fuel or charge,” it also noted that not all locations had such backup batteries or generators installed and that, because all locations were not able to exercise and test the backup equipment in any systemic fashion, some generators and batteries did not function during the crisis. Although the power outages during and after Hurricane Katrina were exceptionally long, the Panel's observations clearly emphasized the importance of power supply to resiliency of communications networks. Taken together, the questions raised in the *NPRM* as well as the Katrina Panel Report's findings regarding the lack of emergency power were sufficient to put interested parties on notice that the Commission was considering how to address the lack of emergency backup power, including through the possible adoption of an emergency backup power rule. Specifically, the *NPRM* sought comment on how the Commission could best encourage implementation of various NRIC best practices, including ensuring the availability of emergency backup power. Even if that language were not read to propose a mandatory rule, the *NPRM* still gave ample notice that this was a possibility. The *NPRM* specifically inquired about “whether [the Commission] should rely on voluntary consensus recommendations, as advocated by the [Katrina] Panel, or whether [it] should rely on other measures for enhancing readiness and promoting more effective response efforts,” a line of inquiry that the Commission reiterated in the July 26 public notice. Moreover, the DC Circuit has held that the ultimate adoption of a mandatory rule can constitute the logical outgrowth of a voluntary standard. Thus, because parties could have anticipated that the rule ultimately adopted was “possible,” it is considered a “logical outgrowth” of the original proposal, and there is no violation of the APA's notice requirements. Indeed, the Commission notes that the National Emergency Number Association

(NENA)did propose a backup power requirement in response to the *NPRM.* In addition, St. Tammany Parish Communications District 1 told the Commission that “[v]oluntary consensus measures * * * have fallen short many times” and that “it is imperative that [wireline] and wireless telephone providers be required to demonstrate they have adequate backup procedures in place.” Carriers also commented on the importance of having backup power. CTIA observed that wireless carriers “must ensure network reliability and reliance” and that, to do so, they “provision their cell sites and switches with batteries to power them when electrical grids fail” and “maintain permanent generators at all of the switches and critical cell sites, as well as an inventory of backup power generators to recharge the batteries during extended commercial power failures.” USTA likewise gave examples of telephone companies that had already deployed backup power capabilities that enabled their cell networks to remain in operation for several days after a loss of main power. In light of these comments, the Commission does not find credible the argument that the *NPRM* failed to apprise parties that the Commission would address the issue of backup power in this proceeding. Petitioners' argument that the Commission did not give adequate notice that it might select a specific durational requirement for emergency power, such as twenty-four or eight hours, also lacks merit. Had the Commission adopted a general backup power requirement that did not require a minimum amount of backup power, it would have risked creating an illogical and meaningless requirement that would have allowed providers to have only one minute of backup power. Thus, parties should have realized that an emergency backup power mandate would inevitably include a specific durational requirement. *Statutory Authority.* PCIA asserts that section 1 of the Communications Act, the statutory authority upon which the Commission adopted the backup power rule, is patently inadequate statutory authority. PCIA contends that section 1 of the Communications Act, as amended, (the “Act”) is only a general grant of jurisdiction that, absent other specific authority, does not authorize the Commission to impose requirements to maintain backup power at cell sites. PCIA argues that the Commission's ancillary authority under section 1 of the Act does not empower it to act where such action would be “ancillary to nothing.” The Commission's section 1 ancillary jurisdiction covers circumstances where:

(1)The Commission's general jurisdictional grant under Title I covers the subject of the regulations, and

(2)the regulations are reasonably ancillary to the Commission's effective performance of its statutorily mandated responsibilities. This two-part test for ancillary jurisdiction was developed by the Supreme Court in *Southwestern Cable.* To fulfill the first prong of the ancillary jurisdiction test, the subject of the regulation must be covered by the Commission's general grant of jurisdiction under Title I of the Communications Act, which encompasses “all interstate and foreign Communication by wire or radio.” In the instant rule making, this first prong of the ancillary jurisdiction test is met because the backup power rule adopted by the Commission in the *Katrina Panel Order* pertains to the provisioning of “interstate and foreign commerce in communication by wire and radio.” The second prong of the ancillary jurisdiction test requires that the subject of the regulation must be reasonably ancillary to the Commission's effective performance of its statutorily mandated responsibilities. It cannot seriously be disputed that the backup power requirement is “reasonably ancillary to the effective performance” of the Commission's responsibilities to promote public safety. Section 1 itself makes clear that one of the Commission's missions is to “make available * * * [a] wire and radio communication service with adequate facilities * * * for the purpose of *promoting safety of life and property* through the use of wire and radio communications.” 47 U.S.C. 151 (emphasis added). Section 1 thus requires the Commission to “consider public safety” and to “take into account its *duty* to protect the public.” *Nuvio Corp.* v. *FCC,* 473 F.3d 302, 307 (2006); *see also id.* at 311 (Kavanaugh, J., concurring) (“the FCC possesses statutory authority * * * to address the public safety threat by banning providers from selling voice services until the providers can ensure adequate 911 connections”). And as this Court has recognized, it is well “within the Commission's statutory authority” to “ ‘make such rules and regulations * * * as may be necessary in the execution’ ” of its section 1 responsibilities.” Section 303(r) also provides ample authority to support the Commission's action here. Section 303(r) provides that the Commission may “[m]ake such rules and regulations * * * as may be necessary to carry out the provisions of this Act. The presence of a backup power source installed by all local exchange carriers (LECs), including incumbent LECs (ILECs) and competitive LECs (CLECs), as well as commercial mobile radio service

(CMRS)providers for all assets that are normally powered from local commercial power including those inside central offices, cell sites, remote switches and digital loop carrier system remote terminals will facilitate communication for the purposes of national defense and the promotion of “safety of life and property” during emergencies. Communications networks cannot operate without a power source. The Commission must therefore be mindful of an adequate power supply, particularly in emergencies, if it is to discharge its core responsibilities under section 1 of the Communications Act to regulate communications for the promotion of national defense, public safety and the protection of property. If commercially supplied power is incapacitated, the communications network will also fail. The backup power rule adopted by the Commission is a short-term attempt to sustain communication in a severe emergency for the purposes of promoting the Commission's salient purpose pursuant to section 1 to regulate interstate communications by wire and radio. PCIA's reliance on the broadcast flag ruling by the U.S. Court of Appeals for the District of Columbia (Court) is misplaced. In that case, the Court found that the Commission had not satisfied the second prong of the ancillary jurisdiction test because the restriction on recording digital television programs that were transmitted by cable or over-the-air broadcast exceeded the Commission's authority to regulate the transmission of communications by wire and radio given that the restriction pertained to a regulation imposed outside the course of the act of transmitting the communication. In this case, by contrast, backup power is necessary for the communication to be transmitted at all. *Arguments Regarding Lack of Record Support, Consideration of Important Factors or Reasoned Basis for Rule.* Petitioners contend that the backup power rule is arbitrary and capricious because the Commission failed to explain why a mandatory obligation including an inflexible minimum 8 or 24 hour period was necessary and why it rejected less restrictive alternatives to the rule, such as a voluntary best practices regime as recommended by the Katrina Panel. Several petitioners also allege that the Commission failed to consider the impact of the rule, failed to consider important aspects of the very problem it sought to redress, and failed to explain why present carrier preparedness plans are inadequate. Additionally, several petitioners argue that the backup power rule adopted lacks record support. Petitioners argue that there is no record evidence to support the backup power mandate in general, or the eight or 24-hour minimum in particular. Some petitioners note that the comments described in the Order when discussing the backup power rule do not concern CMRS providers at all, do not suggest any mandatory minimum standard, or have nothing to do with backup power. However, the rule adopted by the Commission enjoyed strong factual support. First, as described *supra,* the Katrina Panel repeatedly emphasized the importance of power supply to resiliency of communications networks. Further, it noted that backup generators and batteries were not present at all facilities. Additionally, the Katrina Panel Report stated that power for radio base stations and battery/chargers for portable radio devices are carefully planned for public safety systems; however, “generators are typically designed to keep base stations operating for 24 to 48 hours.” This language, along with the Katrina Panel's recognition that 24-48 hours is generally a sufficient time to permit the restoration of power in most situations, clearly provides support for requiring LECs and CMRS providers to maintain backup power for a minimum of 24 hours for assets located inside central offices. The 24 hour requirement imposes relatively less burden while still generally providing sufficient time for restoration of commercial power or for carriers to allocate additional power sources. Further, the Commission recognized the burdens of ensuring longer durations of backup power at other locations, which have subsequently been detailed by petitioners, and reasonably required only 8 hours of backup power for such locations, including, but not limited to, cell sites, remote switches and digital loop carrier system remote terminals. This will provide at least eight hours for commercial power restoration or carrier actions to obtain additional backup power sources. Additionally, the Katrina Panel's recommendation was that the Commission encourage the implementation of the NRIC VII Recommendation 7-7-5204. That recommendation states that “[s]ervice providers, network operators and property managers should ensure availability of emergency/backup power * * *” The terms “service providers” and “network operators” clearly include CMRS providers. In the *Katrina Panel Order,* the Commission noted that NENA recommended that “the FCC or state commissions, as appropriate, require all telephone central offices to have an emergency backup power source.” NENA states that, in its comments in the Katrina Panel Docket, it chose to mention telephone central offices as emblematic, not exhaustive, of critical switching points in wire and wireless networks, and it also endorsed the broader scope of NRIC Recommendation 7-7-5204. The Commission determined that a mandatory backup power requirement would be in the public interest. Although several carriers described their backup power plans, the Katrina Panel Report made clear the importance of backup power for resilient communications and restoration of communications services that have been disrupted. The report further made clear that, although many carriers do have backup power or backup power plans, not all locations have backup power. The Katrina Panel also noted that because those communications providers did not necessarily test and exercise their backup power sources in a systematic fashion, generators and batteries might not function during the crisis. Imposing a backup power rule would ensure that more communications assets have backup power and that providers ensure the availability of this power. Access to communications technologies during times of emergency is critical to the public, public safety personnel, hospitals, and schools, among others. Therefore, because the benefits of ensuring resilient communications during times of crises are so great, the Commission determined that a backup power rule was in the public interest. Moreover, it is important that both LEC and CMRS providers have backup power, because the public, public safety personnel, and hospitals, among others, rely heavily on both types of providers. In fact, many Americans now rely on only a wireless phone and public safety entities, hospitals and others are increasingly relying on wireless technologies. As the Katrina Panel Report and commenters note, lack of commercial power was one of the main causes of wireless outages during Hurricane Katrina, access to fuel was one of the wireless providers' most pressing needs during that catastrophe, and it is important that both wireless and wireline carriers ensure network reliability and resiliency by provisioning their sites with back up power. Petitioners also allege that the Commission failed to consider burdens and important matters, some of which affect the ability of carriers to comply with the rule. They contend that legal impediments, including contractual obligations and inconsistency with federal, state and local environmental, safety, building and zoning laws will make compliance with the rule difficult, if not impossible and could result in preemption issues regarding state and local laws. Petitioners note that carriers have site leases with contractual obligations that regulate the placement, installation and operation of power sources. Additionally, petitioners assert that compliance with the backup power rule could result in threats to public health and safety. For instance, petitioners state that the installation of a generator and its combustible fuel on the roof of a school or public building, where many transmitters are located, may pose a risk to public health and safety even when in compliance with law. Further, petitioners assert that the Commission failed to properly consider the length of time it would reasonably take for providers to comply with the rule. They contend that compliance will take a significant amount of time and the time allowed by the *Katrina Panel Order* is insufficient, because providers must obtain permits, do site inspections, conduct structural engineering analysis, renegotiate leases, obtain permits, ensure compliance with legal requirements, evaluate backup power needs, and order and install the necessary equipment. Petitioners also assert that compliance will take time because thousands of “non-critical” sites do not have backup power and many of the sites that do have backup power do not have the amount required. As discussed in greater detail below, petitioners also argue that physical and other practical limitations make it difficult or impossible to comply with the backup power rule. Finally, petitioners argue that the Commission did not adequately consider the economic burden the rule will impose. The Commission finds that Petitioners' arguments regarding legal impediments and threat to public health and safety to be compelling and modify § 12.2 to state that LECs and CMRS providers are not required to meet the backup power requirement if they demonstrate, through the reporting requirement described below, that such compliance is precluded by:

(1)Federal, state, tribal or local law;

(2)risk to safety of life or health; or

(3)private legal obligation or agreement. With respect to private legal obligations or agreements, LECs and CMRS providers should make efforts to revise agreements to enable rule compliance where possible, for example through renegotiations or renewals. Obviously, the Commission will disapprove of attempts to circumvent the rule through private agreements. The Commission believes such exemptions are warranted because those impediments create a substantial burden for LECs and CMRS providers to overcome in order to comply with the rule that in some cases may be insurmountable. In the case of risk to safety of life or health, such an exemption is obviously in the public interest. As noted, *supra,* some petitioners assert that the Commission should clarify that the backup power rule applies only to assets directly related to the provision of critical communications services. The Commission agrees that the requirement should be clarified to apply only to assets necessary to the provision of communications services and modify the rule accordingly. The Commission declines, however, to limit the rule to “critical” communications services, because, although that term was included in the NRIC best practice recommended by the Katrina Panel, it is not well defined and the Commission believes, for public safety and public interest reasons, all assets necessary to the provision of communications services should have backup power. The Commission also agrees with AT&T that on-site power sources satisfy the requirement of this rule if such sources were originally designed to provide the minimum backup power capacity level required herein and the provider has implemented reasonable methods and procedures to ensure that batteries are regularly checked and replaced when they deteriorate. Finally, the Commission finds that the requirement should not be limited to assets normally powered from local “AC” commercial power. Regardless of the type of commercial power used, assets necessary to maintain communications should have backup power and be as reliable and resilient as possible. The Commission also notes that the NRIC best practice recommended by the Katrina Panel did not limit its recommendation in this way. Accordingly, the Commission deletes the reference to “AC” in the rule. While today the Commission addresses concerns raised by LECs and CMRS providers regarding their obligation to ensure emergency backup power, given the importance of backup power reserves during times of emergency, the Commission will seek information regarding the extent to which LECs and CMRS providers are in compliance with this rule. Accordingly, the Commission also modifies § 12.2 to require LECs and CMRS providers to file reports with the Commission that identify the following information:

(1)An inventory listing of each asset that was designed to comply with the backup power mandate;

(2)an inventory listing of each asset where compliance is precluded due to risk to safety or life or health;

(3)an inventory listing of each asset where compliance is precluded by private legal obligation or agreement;

(4)an inventory listing of each asset where compliance is precluded by Federal, state, tribal or local law; and

(5)an inventory listing of each asset designed with less than the required emergency backup power capacity and that is not otherwise precluded from compliance for one of the three reasons identified above. LECs and CMRS providers must file these reports within six months of the effective date of this requirement, and must include a description of facts supporting the basis of the LEs or CMRS provider's claim of preclusion from compliance. For example, claims that a LEC or CMRS provider cannot comply with the backup power mandate due to a legal constraint must include the citation(s) to the relevant laws and, in order to be deemed precluded from compliance, the law or other legal constraint must prohibit the LEC or CMRS provider from complying with the backup power requirement. The mere need to obtain a permit or other approval will not be deemed to preclude compliance with the backup power requirement. Claims that a LEC or CMRS provider cannot comply with the backup power mandate with respect to a particular asset due to a private legal obligation or agreement must include the relevant terms of the obligation or agreement and the dates on which the relevant terms of the agreement became effective and are scheduled to expire. Claims that a LEC or CMRS provider cannot comply with the backup power mandate with respect to a particular asset due to risk to safety of life or health must include a description of the particular public safety risk and sufficient facts to demonstrate substantial risk of harm. The Commission directs the Public Safety and Homeland Security Bureau to develop an appropriate auditing program to ensure that carriers' exclusion filings are reasonable and accurate. LECs or CMRS providers identifying assets designed with less than the required emergency backup power capacity and not otherwise precluded from compliance for one of the three reasons listed above must comply with the backup power requirement or file, within 12 months from the effective date of the rule, a certified emergency backup power compliance plan that is subject to Commission review. That plan must describe how, in the event of a commercial power failure, the LEC or CMRS provider intends to provide emergency backup power to 100 percent of the area covered by any non-compliant asset, relying on on-site and/or portable backup power sources or other sources as appropriate. The emergency backup power must be sufficient for service coverage as follows: A minimum 24 hours of emergency backup power for assets inside central offices and eight hours for other assets such as cell sites, remote switches, and digital loop carrier system remote terminals. The provider must be able to ensure backup power is available for 100 percent of the area covered by any non-compliant asset pursuant to the emergency backup power compliance plan on the date that the plan is filed. All reports and plans required by § 12.2 of the Commission's rules will be automatically afforded confidentiality, because the information in those reports and plans is sensitive, for both national security and/or commercial reasons. This reporting requirement should not be burdensome in light of many LEC and CMRS provider arguments that they already have business continuity plans that address the issue of backup power and in light of the fact that the plan is not due until 12 months after the effective date of the modified rule which will require Office of Management and Budget approval before going into effect. In any event such burdens are outweighed by the importance of having backup power for communications assets. Petitioners argue that the Commission failed to consider the length of time it would reasonably take for CLECs and CMRS providers to comply with the rule and that it will take significant time to evaluate backup power needs, conduct structural engineering analyses, renegotiate leases if needed, prepare necessary applications for permits and other authorizations, ensure compliance with all applicable building codes and environmental regulations, coordinate with counsel, architects, construction personnel and government officials, order and receive the necessary equipment, and properly install the backup power source. The Commission notes that the *Katrina Panel Order* was released on June 8, 2007, almost four months ago, and LECs and CMRS providers have known of the backup power requirement since that time. Further, the modified backup power rule adopted in the Order on Reconsideration will not go into effect until OMB approves the new information collection, giving providers additional time to come into compliance. To the extent LECs and CMRS providers identify non-compliant assets, they will receive even more time to file emergency backup power compliance plans. In addition, the modifications to the rule mitigate these concerns by exempting assets from compliance when precluded by law, private legal obligation or agreement, or risk to safety of life or health and by allowing an emergency backup power compliance plan in cases where assets do not comply with the 8-24 hour rule and are not subject to the exceptions. As such, the Commission believes that it will be feasible for providers to comply with the rule. Several petitioners argue that compliance with the backup power rule is burdensome due to physical and other practical limitations, that the required space might not be available at many sites, and that providers may be forced to modify structures containing cell transmitters or to build new structures. They assert, for example, that roofs and floors need to be designed to support the weight of power sources, that many rooftop cell sites were not engineered with the additional weight requirements made necessary by the backup power rule, and that many of those structures may simply not be able to physically support the weight of additional batteries or a generator. Petitioners also argue that there is not enough space at many cell sites to add additional backup power sources and note that cell transmitters are often placed in locations with limited room, such as building rooftops, church steeples and inside buildings. USTelecom notes that some remote terminals are physically too small to support a backup battery or a battery over a certain size. T-Mobile reports that, in the case of liquid propane-fueled generators, Occupational Safety and Health Administration requirements mandate a 10-foot radius clearance between the liquid propane fuel tank and its ignition source. T-Mobile argues that this could substantially increase the amount of space needed to install a backup power source. The Commission is not convinced that LECs and CMRS providers should be excused from having emergency backup power solely because they have chosen to place their assets at locations with limited weight or space capacities. The ultimate goal of this rule is to ensure that carriers have sufficient emergency backup power, particularly during times of emergencies. The Commission recognizes that, in order to comply with the rule, some carriers may have to modify sites to accommodate additional equipment or, in some cases, find other, more suitable, locations for their assets. The Commission believes, however, that any such burdens are far outweighed by the ultimate goal of this rule. For similar reasons, the Commission also rejects the notion that carriers should be excused from complying with the rule for vague “practical” reasons. Having said this, however, a carrier could be excused from the rule to the extent that the carrier can demonstrate that an asset with purported physical constraints fall into one of the three exceptions listed above. Additionally, where assets do not comply with the 8-24 hour rule and are not subject to the exceptions, the Commission now allows an emergency backup power compliance plan. Although petitioners argue that the economic burden that the backup power rule will impose is substantial, the record before the Commission showed that several carriers have already deployed back-power power capabilities, some of which allow them to remain in operation for several days in the event of a loss of main power. In any event, the Commission finds that the benefits of ensuring sufficient emergency backup power, especially in times of crisis involving possible loss of life or injury, outweighs the fact that carriers may have to spend resources, perhaps even significant resources, to comply with the rule. Petitioners assert that compliance may be costly; however, the record does not show that it is “cost-prohibitive” for carriers. Moreover, the rule modifications, including new exemptions described above and the provision that providers file an emergency backup power compliance plan to ensure 100 percent coverage in areas covered by non-compliant assets, will decrease any economic burden substantially. Finally, the Commission finds that the goal of ensuring that carriers' networks have sufficient emergency backup power outweighs the economic burden described by petitioners and particularly the reduced economic burden in light of the rule modifications adopted herein. The need for backup power in the event of emergencies has been made abundantly clear by recent events, and the cost of failing to have such power may be measured in lives lost. Some Petitioners argue that, contrary to the ultimate goal of protecting the provision of services, the backup power rule will not advance, but will actually risk undermining, carriers' emergency preparedness goals and efforts to achieve important business continuity and disaster recovery goals. Petitioners contend that the rule deprives carriers of the flexibility necessary to make intelligent and efficient plans for network resiliency as well as giving carriers the flexibility to respond to disasters in real time while remaining in compliance with the Commissions rules. Petitioners assert that, by diverting manpower and resources away from more appropriate efforts to tailor emergency communications plans, and by denying carriers the ability to move resources away from areas not impacted to those that have been impacted, the rule undermines rather than promotes the important goal of public safety. The Commission recognizes that carriers need some level of flexibility in the design and deployment of their networks. This need, however, must be balanced with the critical goal of ensuring that communications networks has sufficient backup power, particularly during times of disaster. The modifications made today strike a fair and equitable balance of these two interests. The modified rule adopted today will ensure that LECs, including ILECs and CLECs, as well as CMRS providers maintain sufficient level of emergency backup power for assets that are necessary to maintain communications and that are normally maintained by commercial power. At the same time, the modifications adopted in the Order on Reconsideration provide some level flexibility, both in terms of the exceptions provided and the requirements for submission of an emergency backup power compliance plan in cases where providers are not compliant. Moreover, inclusion of on-site back up power does not preclude the ability of carriers to maintain strategic stores of fuel, batteries or other backup equipment in other localities as a further layer of redundancy. Petitioners argue that enforcement could also lead to the termination or disruption of wireless cell sites, threatening the availability of service, including E-911 service. Petitioners further contend that carriers may have little choice but to shut down or move certain transmitters rather than risk operating in violation of the new rule or endangering public health and safety. NENA disagrees and contends that these arguments suggest that cellular providers should be immune from any disruptive regulatory discipline. The Commission believes that the exemptions now provided along with the requirement to develop an emergency backup power compliance plan in cases where assets do not comply with the 8-24 hour rule and are not subject to the exceptions described herein will mitigate these concerns. *Paging Carriers.* The American Association of Paging Carriers

(AAPC)argues that the Commission did not intend to apply the backup power rule to paging carriers and should so clarify. Alternatively, AAPC asserts that, if the Commission did intend for this rule to apply to paging carriers, the Commission should reconsider and exclude paging carriers or instead adopt the Katrina Panel's actual recommendation on this issue, as set forth in the Katrina Panel Report. The backup power rule adopted in the *Katrina Panel Order* requires commercial mobile radio service

(CMRS)providers to have emergency backup power. CMRS providers that have no more than 500,000 subscribers are exempt from this rule. Therefore, paging carriers that are CMRS providers with more than 500,000 subscribers must comply with the rule. Paging services are a critical part of emergency response. Many first responders, hospitals and critical infrastructure providers rely on paging services during emergencies. Therefore, it is critical that these services be available during crises. Backup power at paging carrier facilities will help ensure the availability of these services. The importance of paging services is further demonstrated by the fact that paging carriers participate in the Commercial Mobile Service Alert Advisory Committee and are subject to the Commission's part 4 outage reporting rules. For these reasons and those set forth below, the Commission modifies § 12.2 to clarify that the rule applies to CMRS providers, *as defined in Section 20.9 of the Commission's rules.* AAPC argues that the Commission intended to exclude paging carriers from this backup power rule. AAPC asserts that the *Katrina Panel Order* bases the CMRS classification in § 12.2 on a definition developed for the *E-911 Proceeding* and, because paging carriers do not provide E-911 service, the inference is that the Commission intended to exclude paging carriers from this rule. The parts of the *Katrina Panel Order* cited by AAPC, however, do not define CMRS providers, but instead provide an exemption for non-nationwide CMRS providers with no more than 500,000 subscribers. In a footnote, the Commission merely stated that this exemption is based on the Tier III CMRS definition. AAPC contends that the etymology of the backup power rule supports a finding that the Commission intended to exclude paging carriers and to apply the rule only to entities that are required to provide E-911 service as defined in Section 20.18 of the Commission's rules. AAPC notes that the Katrina Panel made its backup power recommendation “in order to ensure a more robust E-911 service” and that, when requesting public comment on this recommendation, the Commission explained that the Panel “recommends that the Commission encourage the implementation of certain NRIC best practices intended to promote the reliability and resiliency of the 911 and E911 architecture.” However, the backup power rule includes no such limitations and, in the *NPRM,* the Commission specifically sought comment on whether the Katrina Panel's observations warranted additional measures or steps beyond the report's specific recommendations and welcomed suggestions and recommendations regarding additional measures or actions beyond the Panel's recommendations. The Commission also sought comment on whether it should rely on voluntary consensus recommendations, as advocated by the Katrina Panel, or whether it should rely on other measures for enhancing readiness and promoting more effective response efforts. Further, AAPC argues that the deliberate use of the term “cell sites” in the rule supports the conclusion that the Commission did not intend that the rule apply to paging carriers because paging carriers do not operate cell sites in their networks. The reference to cell sites, however, is only one example of an asset that is normally powered from local commercial power and the assets identified in the rule are not an exhaustive list. AAPC requests, in the event that the Commission did intend to apply the backup power rule to paging carriers, that the rule be modified to ensure that it does not apply to paging carriers. AAPC argues that it is unreasonable to lump paging networks together with other types of CMRS networks for purposes of this rule without considering the particular engineering and cost characteristics of paging networks themselves. Although AAPC argues that applying the requirement to all paging base stations and terminals would be particularly troubling for paging carriers, the burden will be mitigated by the rule modifications adopted herein. Additionally, the burden for paging carriers would not necessarily be any more onerous for paging carriers than for other CMRS providers. Paging providers use a variety of facilities to provide coverage which are, in most cases not that different from the facilities of other CMRS providers. The fill-in facilities employed by paging providers are similar in size and power requirements as those used by other CMRS providers. In many instances, paging providers use high-powered transmitters that are located in multiple transmitter sites. While there may be challenges to overcome such as space, zoning and structural limitations for these facilities, they are no more onerous than those faced by other CMRS providers. In addition, the backup power rule might be less burdensome for paging carriers than for other CMRS providers, because the number of fill-in paging sites that paging carriers deploy is likely less than the more extensive deployment of assets required by other CMRS providers. AAPC asserts that the Commission should define CMRS as those services that are identified in § 20.18(a) of the Commission's rules, as it did for purposes of section 605(a) of the WARN Act, where the Commission defined the statutory phrase “commercial mobile service.” That definition, however was limited to section 605(a) of the WARN Act and was done for specific purposes of that section of the Act that are not relevant to the backup power rule. Further, the membership of the Commercial Mobile Service Alert Advisory Committee established pursuant to the WARN Act includes paging carriers. In light of these factors, the Commission declines to modify the rule as suggested by AAPC, and clarify that paging carriers are required to comply. *Distributed Antenna System

(DAS)Nodes and other non-traditional sites.* NextG, MetroPCS and other petitioners ask the Commission to clarify that DAS Nodes and other “non-traditional” sites, such as cellular repeater sites, micro-cell and pico-cell locations, electric poles, light poles, and flagpoles, are not “cell sites” as the term is used in the Commission's new backup power rule. In the alternative, these petitioners request that the Commission reconsider and amend the rule to eliminate the backup power requirement for DAS Nodes and other “non-traditional” sites. Other petitioners make similar arguments for “non-traditional” sites and emphasize the burden of complying with the backup power rule due to physical constraints and economic resources. NextG explains that it provides telecommunications services to wireless carriers via a network architecture that uses fiber-optic cable and small antennas mounted in the public rights-of-way on infrastructure such as utility poles, street lights and traffic signal poles. NextG argues that DAS Nodes should not be treated as a cell site because the DAS Node does not include some of the features typically associated with a cell site. The antenna is not associated with a base station or network switching equipment at the DAS Node site. NextG and MetroPCS maintain that even if the Commission does treat the DAS Node as a cell site this equipment should be exempt from the backup power rule because it is “technologically, financially, and politically infeasible” to install eight hours of backup power. DAS Forum argues that the impact due to the loss of power to a portion of a DAS network is far less than the loss of power to a traditional cell site because the balance of the DAS network continues to function when one node is damaged. The Commission declines to exempt DAS Nodes or other sites from the emergency backup power rule. Rather, the Commission believes that to the extent these systems are necessary to provide communications services, they should be treated similarly to other types of assets that are subject to the rule. The Commission notes that many of the arguments made by petitioners are similar to the physical constraint arguments raised by other parties. As stated earlier, the Commission sees no reason why LECs and CMRS providers who choose to place assets at locations with limited physical capacities should generally be excused from compliance with the rule. The Commission realizes that many providers have begun to use DAS and other small antenna systems as part of their communications networks. That fact alone, however, is far outweighed by the need to ensure a reliable communications network. To the extent petitioners raise concerns regarding legal impediments, private agreement constraints and safety risk issues, the Commission notes that the modifications to the rule made today should address those concerns. DAS Forum and PCIA argue that the backup power rule will adversely impact the public interest and Commission policy goals, because the increased expense of compliance will prevent wireless carriers from further deploying their networks in this manner and that this will decrease capacity, coverage and reliability and affect emergency communications and wireless E911 coverage. Petitioners have not presented sufficient evidence that the backup power rule will prevent wireless carriers from deploying their networks, particularly in light of the reduced burden of compliance that will result from the rule modifications the Commission adopts in the Order on Reconsideration. Moreover, as noted above, the Commission finds that the benefits of ensuring backup power for communications assets outweighs any economic burden that LECs and CMRS providers may incur as a result of this rule. Conclusion For the reason stated above, the Commission denies petitioners' requests that it rescind § 12.2 of the Commission's rules, but find that the petitioners have presented an adequate basis for modifying this backup power rule as detailed above and in Appendix B of the Order. Procedural Matters *Supplemental Final Regulatory Flexibility Analysis.* As required by section 603 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 604, the Commission has prepared a Supplemental Final Regulatory Flexibility Analysis of the possible impact of the rule changes contained in this Order on Reconsideration on small entities. The Supplemental Final Regulatory Flexibility Act analysis is set forth in Appendix C of the Order. The Commission's Consumer & Government Affairs Bureau, Reference Information Center, will send a copy of this Order, including the Supplemental Final Regulatory Flexibility Act Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. *Final Paperwork Reduction Act of 1995 Analysis.* The rules in 47 CFR 12.2 contains information collection requirements that have not been approved by the Office of Management and Budget (OMB). The Federal Communications Commission will publish a document in the **Federal Register** announcing the effective date. *Congressional Review Act Analysis.* The Commission will send a copy of this Order on Reconsideration in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). Ordering Clauses Accordingly, *it is ordered,* pursuant to sections 1, 4(i)-(k), 4(o), 201, 218, 219, 301, 303(g), 303(j), 303(r), 332, 403, 405, 621(b)(3) and 621(d) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-(k), 154(o), 201, 218, 219, 301, 303(g), 303(j), 303(r), 332, 403, 405, 541(b)(3), and 541(d), and §§ 1.3 and 1.106 of the Commission's rules, 47 CFR 1.3, 1.106, that this Order on Reconsideration in EB Docket No. 06-119 and WC Docket No. 06-63 is adopted. *It is further ordered,* that the Petitions for Reconsideration filed by The American Association of Paging Carriers, the DAS Forum, MetroPCS Communications, Inc., NextG Networks, Inc., PCIA—The Wireless Infrastructure Association (PCIA), and The United States Telecom Association are granted to the extent discussed above, and the remainder of those petitions are denied. *It is further ordered* that § 12.2 of the Commission's rules is amended as specified in Appendix B of the Order, and that § 12.2 shall be effective on the date of **Federal Register** notice announcing OMB approval of the information collection requirements contained in that rule. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order on Reconsideration, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects in 47 CFR Part 12 Communications, Reporting and recordkeeping requirements. Federal Communications Commission. Marlene H. Dortch, Secretary. Rule Changes For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 12 as follows: PART 12—REDUNDANCY OF COMMUNICATIONS SYSTEMS 1. The authority citation for part 12 continues to read: Authority: 47 U.S.C. 151, 154(i)-(k), 154(o), 201, 218, 219, 301, 303(g), 303(j), 303(r), 332, 403, 405, 541(b)(3), and 541(d). 2. Revise § 12.2 to read as follows: § 12.2 Backup power.

(a)Except to the extent set forth in 12.2(b) and 12.2(c)(4) of the Commission's rules, local exchange carriers, including incumbent local exchange carriers and competitive local exchange carriers (collectively, LECs), and commercial mobile radio service

(CMRS)providers, as defined in § 20.9 of this chapter, must have an emergency backup power source ( *e.g.* , batteries, generators, fuel cells) for all assets necessary to maintain communications that are normally powered from local commercial power, including those assets located inside central offices, cell sites, remote switches and digital loop carrier system remote terminals. LECs and CMRS providers must maintain emergency backup power for a minimum of twenty-four hours for assets that are normally powered from local commercial power and located inside central offices, and eight hours for assets that are normally powered from local commercial power and at other locations, including cell sites, remote switches and digital loop carrier system remote terminals. Power sources satisfy this requirement if they were originally designed to provide the minimum backup power capacity level required herein and the provider has implemented reasonable methods and procedures to ensure that the power sources are regularly checked and replaced when they deteriorate. LECs that meet the definition of a Class B company as set forth in § 32.11(b)(2) of this chapter and non-nationwide CMRS providers with no more than 500,000 subscribers are exempt from this rule.

(b)LECs and CMRS providers are not required to comply with paragraph

(a)of this section for assets as described in paragraph

(a)of this section where the LEC or CMRS provider demonstrates, through the reporting requirement as described in paragraph

(c)of this section, that such compliance is precluded by:

(1)Federal, state, tribal or local law;

(2)Risk to safety of life or health; or

(3)Private legal obligation or agreement.

(c)Within six months of the effective date of this requirement, LECs and CMRS providers subject to this section must file reports with the Chief of the Public Safety & Homeland Security Bureau.

(1)Each report must list the following:

(i)Each asset that was designed to comply with the applicable backup power requirement as defined in paragraph

(a)of this section;

(ii)Each asset where compliance with paragraph

(a)of this section is precluded due to risk to safety of life or health;

(iii)Each asset where compliance with paragraph

(a)of this section is precluded by a private legal obligation or agreement;

(iv)Each asset where compliance with paragraph

(a)of this section is precluded by Federal, state, tribal or local law; and

(v)Each asset that was designed with less than the emergency backup power capacity specified in paragraph

(a)of this section and that is not precluded from compliance under paragraph

(b)of this section.

(2)Reports listing assets falling within the categories identified in paragraphs (c)(1)(ii) through

(iv)of this section must include a description of facts supporting the basis of the LEC's or CMRS provider's claim of preclusion from compliance. For example, claims that a LEC or CMRS provider cannot comply with this section due to a legal constraint must include the citation(s) to the relevant law(s) and, in order to demonstrate that it is precluded from compliance, the provider must show that the legal constraint prohibits the provider from compliance. Claims that a LEC or CMRS provider cannot comply with this section with respect to a particular asset due to a private legal obligation or agreement must include a description of the relevant terms of the obligation or agreement and the dates on which the relevant terms of the agreement became effective and are set to expire. Claims that a LEC or CMRS provider cannot comply with this section with respect to a particular asset due to risk to safety of life or health must include a description of the safety of life or health risk and facts that demonstrate a substantial risk of harm.

(3)For purposes of complying with the reporting requirements set forth in paragraphs (c)(1)(i) through

(v)of this section, in cases where more than one asset necessary to maintain communications that are normally powered from local commercial power are located at a single site ( *i.e.* , within one central office), the reporting entity may identify all of such assets by the name of the site.

(4)In cases where a LEC or CMRS provider identifies assets pursuant to paragraph (c)(1)(v) of this section, such LEC or CMRS provider must comply with the backup power requirement in paragraph

(a)of this section or, within 12 months from the effective date of this rule, file with the Commission a certified emergency backup power compliance plan. That plan must certify that and describe how the LEC or CMRS provider will provide emergency backup power to 100 percent of the area covered by any non-compliant asset in the event of a commercial power failure. For purposes of the plan, a provider may rely on on-site and/or portable backup power sources or other sources, as appropriate, sufficient for service coverage as follows: a minimum of 24 hours of service for assets inside central offices and eight hours for other assets, including cell sites, remote switches, and digital loop carrier system remote terminals. The emergency backup power compliance plans submitted are subject to Commission review.

(5)Reports submitted pursuant to this paragraph must be supported by an affidavit or declaration under penalty of perjury and signed and dated by a duly authorized representative of the LEC or CMRS provider with personal knowledge of the facts contained therein.

(6)Information filed with the Commission pursuant to paragraph

(c)of this section shall be automatically afforded confidentiality in accordance with the Commission's rules.

(7)LECs that meet the definition of a Class B company as set forth in § 32.11(b)(2) of this chapter and non-nationwide CMRS providers with no more than 500,000 subscribers are exempt from this reporting requirement. [FR Doc. E7-20061 Filed 10-10-07; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 90 [WT Docket No. 02-08; FCC 02-152] Public Safety 700 MHz Band AGENCY: Federal Communications Commission. ACTION: Final rule; announcement of effective date. SUMMARY: The Federal Communications Commission (Commission) announces that a certain rule adopted in its Public Safety 700 MHz Band proceeding (WT Docket No. 02-08; FCC 02-152) in 2002, to the extent it contained an information collection requirement that required approval by the Office of Management and Budget

(OMB)was approved, and became effective January 31, 2006, following approval by OMB. DATES: The effective date for the final rule published on June 20, 2002 (67 FR 41847) revising 47 CFR 90.176 is January 31, 2006. FOR FURTHER INFORMATION CONTACT: Carol Simpson, Public Safety and Homeland Security Bureau, at

(202)418-2391, or *Jerry.Cowden@fcc.gov* . SUPPLEMENTARY INFORMATION: 1. On May 16, 2002 the Commission adopted a Report and Order (R&O) in WT Docket No. 02-08; FCC 02-152, a summary of which was published at 67 FR 41847 Q2 (June 20, 2002). In that R&O, the Commission stated that, upon OMB approval, it would publish in the **Federal Register** a document announcing the effective date of the change to 47 CFR 90.176. 2. On January 31, 2006, OMB approved the public information collection associated with this rule change under OMB Control No. 3060-0783. Therefore, the change to 47 CFR 90.176 became effective on January 31, 2006. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E7-19441 Filed 10-10-07; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 070213032-7032-01] RIN 0648-XD26 Fisheries of the Economic Exclusive Zone Off Alaska; Trawl Gear in the Gulf of Alaska AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. SUMMARY: NMFS is prohibiting directed fishing for groundfish by vessels using trawl gear in the Gulf of Alaska (GOA), except for directed fishing for pollock by vessels using pelagic trawl gear in those portions of the GOA open to directed fishing for pollock. This closure also does not apply to fishing by vessels participating in the cooperative fishery in the Rockfish Pilot Program for the Central GOA. This action is necessary to prevent exceeding the 2007 Pacific halibut prohibited species catch

(PSC)limit specified for trawl gear in the GOA. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), October 8, 2007, through 2400 hrs, A.l.t., December 31, 2007. FOR FURTHER INFORMATION CONTACT: Jennifer Hogan, 907-586-7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska

(FMP)prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. The 2007 Pacific halibut PSC limit for vessels using trawl gear was established as 2,000 metric tons by the 2007 and 2008 harvest specifications for groundfish of the GOA (72 FR 9676, March 5, 2007). The Administrator, Alaska Region, has determined, in accordance with § 679.21(d)(7)(i), that the 2007 Pacific halibut PSC limit allocated to vessels using trawl gear in the GOA will soon be reached. Therefore, NMFS is prohibiting directed fishing for groundfish by vessels using trawl gear in the GOA, except for directed fishing for pollock by vessels using pelagic trawl gear in those portions of the GOA that remain open to directed fishing for pollock. This closure also does not apply to fishing by vessels participating in the cooperative fishery in the Rockfish Pilot Program for the Central GOA. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay closing directed fishing for groundfish by vessels using trawl gear in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 4, 2007. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. This action is required by § 679.21 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: October 5, 2007. Alan D. Risenhoover Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 07-5017 Filed 10-5-07; 1:20 pm]

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