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Code · REGISTER · 2007-11-26 · Agriculture Agriculture Department See Farm Service Agency NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-22940 65937-65938 E7-22941 Army Army Department S · Unknown

Unknown. Final rule

54,831 words·~249 min read·/register/2007/11/26/07-5828

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

--- schema: federal-register doc_type: fedreg source_file: FR-2007-11-26.xml --- 72 226 Monday, November 26, 2007 Contents Agriculture Agriculture Department See Farm Service Agency NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-22940 65937-65938 E7-22941 Army Army Department See Engineers Corps NOTICES Meetings: Defense Language Institute Foreign Language Center Board of Visitors, 65947 E7-22932 Patent licenses; non-exclusive, exclusive, or partially exclusive:
Circular parachute, 65947 E7-22961 University of Texas Medical Branch at Galveston, 65947 E7-22963 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 65965-65968 E7-22919 E7-22920 E7-22930 Civil Civil Rights Commission NOTICES Meetings; State advisory committees: Pennsylvania, 65938 E7-22949 Coast Guard Coast Guard RULES Ports and waterways safety; regulated navigation areas, safety zones, security zones, etc.:
Ambrose Light, Offshore Sandy Hook, NJ, 65886-65888 E7-22960 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration See National Telecommunications and Information Administration Defense Defense Department See Army Department See Engineers Corps NOTICES Meetings: Defense Science Board, 65944-65946 E7-22935 E7-22936 E7-22938 Science Board task forces, E7-22933 65946-65947 E7-22937 Education Education Department NOTICES Grants and cooperative agreements; availability, etc.:
Elementary and secondary education— Smaller Learning Communities Program, 65951-65957 E7-22957 Energy Energy Department See Federal Energy Regulatory Commission Engineers Engineers Corps NOTICES Environmental statements; notice of intent: Topsail Beach, Pender County, NC; beach nourishment, 65948-65950 E7-22958 Wolf Creek, Center Hill, and Dale Hollow Dams, KY and TN; powerhouse rehabilitations and possible operational changes, 65950-65951 E7-22959 Reports and guidance documents; availability, etc.:
Great Lakes-St. Lawrence Seaway Study; bi-national report, 65951 E7-22967 EPA Environmental Protection Agency NOTICES Toxic and hazardous substances control: New chemicals— Test marketing exemptions, 65959-65960 E7-22976 Export Export-Import Bank NOTICES Agency information collection activities; proposals, submissions, and approvals, 65961 07-5829 Farm Farm Service Agency PROPOSED RULES Special programs: Dairy Disaster Assistance Payment Program III, 65889-65897 E7-22904 FAA Federal Aviation Administration PROPOSED RULES Airworthiness directives:
Airbus, 65897-65901, E7-22921 65906-65909 E7-22925 Boeing, 65901-65905, E7-22923 E7-22924 65909-65916 E7-22926 E7-22928 E7-22939 NOTICES Meetings: RCTA, Inc., 66018 07-5803 RTCA, Inc., 07-5804 66018-66019 07-5805 FBI Federal Bureau of Investigation NOTICES Agency information collection activities; proposals, submissions, and approvals, 65985 E7-22945 FCC Federal Communications Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 65961-65962 E7-22955 Meetings;
Sunshine Act, 65962-65963 07-5843 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 65963 07-5838 Federal Energy Federal Energy Regulatory Commission PROPOSED RULES Natural Gas Policy Act: Capacity release market efficiency promotion, 65916-65936 E7-22952 NOTICES Electric rate and corporate regulation combined filings, 65957-65959 E7-22950 FMC Federal Maritime Commission NOTICES Complaints filed: Kawasaki Kisen Kaisha, Ltd., 65963 E7-22972 Meetings;
Sunshine Act, 65963-65964 07-5845 Federal Motor Federal Motor Carrier Safety Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 66019-66021 E7-22879 Drivers’ hours of service; exemption applications— Dart Transit Co., 66021-66023 E7-22881 Meetings: Analysis, Research and Technology Forum, 66023-66024 E7-22883 Motor Carrier Safety Advisory Committee, 66024 E7-22915 Federal Transit Federal Transit Administration NOTICES Environmental statements; notice of intent:
Salt Lake City, UT; Draper Corridor transit improvements, 66024-66026 E7-22913 Fish Fish and Wildlife Service NOTICES Environmental statements; notice of intent: Incidental take permits— Southern San Joaquin Valley, CA; Chevron's North American Exploration and Production Unit in Lokern Area; habitat conservation plan; meetings, 65980-65981 E7-22934 Food Food and Drug Administration RULES Animal drugs, feeds, and related products: Florfenicol, 65885-65886 E7-22942 NOTICES Human drugs:
Drug products withdrawn from sale for reasons other than safety or effectiveness— ELOXATIN (oxaliplatin for injection), 50 and 100 milligrams, 65968-65969 E7-22973 GSA General Services Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 65964 E7-22903 Health Health and Human Services Department See Centers for Disease Control and Prevention See Food and Drug Administration See National Institutes of Health NOTICES National Toxicology Program:
Alternative toxicological methods evaluation— In vitro ocular toxicity test methods for identifying severe irritants and corrosives, 65964-65965 E7-22906 Homeland Homeland Security Department See Coast Guard See U.S. Citizenship and Immigration Services NOTICES Agency information collection activities; proposals, submissions, and approvals, 65973-65974 E7-22856 Housing Housing and Urban Development Department RULES Low income housing: Housing assistance payments (Section 8)— Mark-to-Market Program; revisions, 66034-66040 E7-22908 Indian Indian Affairs Bureau NOTICES Liquor and tobacco sale or distribution ordinance:
Karuk Tribe of California, 65981-65983 E7-22929 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau International International Trade Administration NOTICES Antidumping: Granular polytetrafluoroethylene resin from— Italy, 65939-65940 E7-22968 Antidumping and countervailing duties: Administrative review requests, 65938-65939 E7-22970 Justice Justice Department See Federal Bureau of Investigation See Justice Programs Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 65984 E7-22918 Justice Justice Programs Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 65985-65986 E7-22917 Labor Labor Department See Occupational Safety and Health Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 65986-65987 E7-22896 Land Land Management Bureau NOTICES Oil and gas leases:
New Mexico, 65983-65984 07-5824 07-5825 National National Council on Disability NOTICES Meetings; Sunshine Act, 65988-65989 07-5839 National Highway National Highway Traffic Safety Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 66026-66028 E7-22880 Motor vehicle safety standards; exemption petitions, etc.: Ferrari S.p.A and Ferrari North America, 66028-66030 E7-22966 NIH National Institutes of Health NOTICES Agency information collection activities; proposals, submissions, and approvals, 65969-65970 E7-22905 Meetings:
Hydroxyurea Treatment for Sickle Cell Disease Consensus Development Conference, 65970-65971 E7-22907 National Center on Minority Health and Health Disparities, 07-5810 65971 07-5811 National Eye Institute, 65971-65972 07-5813 National Institute of Diabetes and Digestive and Kidney Diseases, 65972-65973 07-5812 National Institute of Environmental Health Sciences, 65972 07-5808 National Institute of Mental Health, 65972 07-5809 Recombinant DNA Advisory Committee, 65973 07-5814 NOAA National Oceanic and Atmospheric Administration NOTICES Endangered and threatened species permit applications, determinations, etc., 65940-65941 E7-22953 Grants and cooperative agreements; availability, etc.:
Alaska and Related Artic Regions Environmental Research and Earth System Modeling for Climate applications; correction, 65941-65942 07-5828 Marine mammal permit applications, determinations, etc., 65942 E7-22954 Meetings: Caribbean Fishery Management Council, 65942-65943 E7-22943 National Telecommunications National Telecommunications and Information Administration NOTICES Privacy Act; systems of records, 65943-65944 E7-22951 National Transportation National Transportation Safety Board NOTICES Senior Executive Service Performance Review Board; membership, 65989 07-5817 Nuclear Nuclear Regulatory Commission NOTICES Meetings:
Medical Uses of Isotopes Advisory Committee, 65989 E7-22948 Occupational Occupational Safety and Health Administration NOTICES Meetings: Occupational Safety and Health National Advisory Committee, 65987-65988 E7-22914 Pension Pension Benefit Guaranty Corporation NOTICES Agency information collection activities; proposals, submissions, and approvals, 65989-65992 E7-22956 SEC Securities and Exchange Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 65992 E7-22927 Meetings;
Sunshine Act, 65992-65993 E7-22999 Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 65993-66004 E7-22891 E7-22909 E7-22911 American Stock Exchange LLC, et al., 66004-66006 E7-22916 Chicago Board Options Exchange, Inc., 66006-66009 E7-22894 E7-22946 Depository Trust Co., 66009-66012 E7-22890 New York Stock Exchange LLC, 66012-66013 E7-22944 NYSE Arca, Inc., 66013-66015 E7-22898 Options Clearing Corp., 66015-66017 E7-22910 SBA Small Business Administration NOTICES Senior Executive Service Performance Review Board; membership, 66017-66018 E7-22947 Surface Surface Transportation Board NOTICES Railroad services abandonment:
Laurinburg & Southern Railroad Co., Inc., 66030-66031 E7-22931 Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See Federal Transit Administration See National Highway Traffic Safety Administration See Surface Transportation Board MISSING FOR: U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services NOTICES Immigration: Amended Form I-9 and Handbook for employees, 65974-65980 07-5790 Separate Parts In This Issue Part II Housing and Urban Development Department, 66034-66040 E7-22908 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 226 Monday, November 26, 2007 Rules and Regulations DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 558 New Animal Drugs For Use in Animal Feeds; Florfenicol AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect the approval of a supplemental new animal drug application
(NADA)filed by Schering-Plough Animal Health Corp. The supplemental NADA provides for the use of florfenicol by veterinary feed directive
(VFD)for the control of mortality in freshwater-reared salmonids due to furunculosis associated with *Aeromonas salmonicida* . DATES: This rule is effective November 26, 2007. FOR FURTHER INFORMATION CONTACT: Joan C. Gotthardt, Center for Veterinary Medicine (HFV-130), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-7571, e-mail: *joan.gotthardt@fda.gov* . SUPPLEMENTARY INFORMATION: Schering-Plough Animal Health Corp., 556 Morris Ave., Summit, NJ 07901, filed a supplement to NADA 141-246 that provides for use of AQUAFLOR (florfenicol), a Type A medicated article, by VFD to formulate Type C medicated feed for the control of mortality in freshwater-reared salmonids due to furunculosis associated with *Aeromonas salmonicida* . The supplemental application is approved as of October 26, 2007, and the regulations are amended in 21 CFR 558.261 to reflect the approval and a current format. In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Under section 573(c) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360ccc-2), this supplemental approval qualifies for 7 years of exclusive marketing rights beginning on the date of approval because the new animal drug has been declared a designated new animal drug by FDA under section 573(a) of the act. The agency has carefully considered the potential environmental impact of this action and has concluded that the action will not have a significant impact on the human environment and that an environmental impact statement is not required. FDA's finding of no significant impact and the evidence supporting that finding, contained in an environmental assessment, may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 558 Animal drugs, Animal feeds. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 558 is amended as follows: PART 558—NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS 1. The authority citation for 21 CFR part 558 continues to read as follows: Authority: 21 U.S.C. 360b, 371. 2. In § 558.261, revise paragraph
(e)to read as follows: § 558.261 Florfenicol.
(e)*Conditions of use* —
(1)*Swine* — Florfenicol in grams/ton of feed Indications for use Limitations 182 For the control of swine respiratory disease
(SRD)associated with *Actinobacillus pleuropneumoniae* , *Pasteurella multocida* , *Streptococcus suis* , and *Bordetella bronchiseptica* in groups of swine in buildings experiencing an outbreak of SRD. Feed continuously as a sole ration for 5 consecutive days. The safety of florfenicol on swine reproductive performance, pregnancy, and lactation have not been determined. Feeds containing florfenicol must be withdrawn 13 days prior to slaughter.
(2)*Fish* — Florfenicol in grams/ton of feed Indications for use Limitations
(i)182 to 1,816 Catfish: For the control of mortality due to enteric septicemia of catfish associated with *Edwardsiella ictaluri* . Feed as a sole ration for 10 consecutive days to deliver 10 milligrams florfenicol per kilogram of fish. Feed containing florfenicol shall not be fed for more than 10 days. Following administration, fish should be reevaluated by a licensed veterinarian before initiating a further course of therapy. A dose-related decrease in hematopoietic/lymphopoietic tissue may occur. The time required for hematopoietic/lymphopoietic tissues to regenerate was not evaluated. The effects of florfenicol on reproductive performance have not been determined. Feeds containing florfenicol must be withdrawn 12 days prior to slaughter.
(ii)182 to 1,816 Freshwater-reared salmonids: For the control of mortality due to coldwater disease associated with *Flavobacterium psychrophilum* and furunculosis associated with *Aeromonas salmonicida* . Feed as a sole ration for 10 consecutive days to deliver 10 milligrams florfenicol per kilogram of fish. Feed containing florfenicol shall not be fed for more than 10 days. Following administration, fish should be reevaluated by a licensed veterinarian before initiating a further course of therapy. The effects of florfenicol on reproductive performance have not been determined. Feeds containing florfenicol must be withdrawn 15 days prior to slaughter. Dated: November 9, 2007. Bernadette Dunham, Deputy Director, Center for Veterinary Medicine. [FR Doc. E7-22942 Filed 11-23-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD01-07-157] RIN 1625-AA00 Safety Zone: Ambrose Light, Offshore Sandy Hook, NJ, Atlantic Ocean AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone in the waters of the Atlantic Ocean within a 250 yard radius of Ambrose Light (LLNR 720) located at position 40°27′00″ N, 073°48′00″ W, approximately 8.35 nautical miles east of Sandy Hook, NJ. This safety zone is necessary to provide for the safety of life, property and the environment on navigable waters of the United States during survey and reconstruction of the Ambrose Light that was recently damaged. This safety zone is intended to keep vessels a safe distance from Ambrose Light during the survey and reconstruction operations. DATES: This rule is effective from 12:01 a.m. on November 5, 2007 through 11:59 p.m. on May 5, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD01-07-157 and are available for inspection or copying at Coast Guard Sector New York, Room 209, Staten Island, New York 10305 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Mike McBrady, Waterways Management Division, Coast Guard Sector New York
(718)354-2353. 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. A notice and comment period was not held for this rulemaking because the safety zone is needed in response to an emergency situation created when the Ambrose Light was struck and damaged by a vessel. A survey and repairs are needed immediately in order to restore the light to normal operations. Delaying the necessary survey and repairs in order to conduct a notice and comment period would be contrary to the public interest. 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** as immediate action is needed to protect vessels transiting the area from the hazards of the damaged light tower and from the hazards associated with survey and reconstruction operations. Any delay in implementing this rule would be contrary to public interest since immediate action is needed due to the potential hazards associated with the unstable light, the possibility of it collapsing, or a vessel grounding on the remains of Ambrose Light (LLNR 720). Background and Purpose On Saturday, November 3, 2007, the M/T AXEL SPIRIT allided with Ambrose Light (LLNR 720) in position 40°27′00″ N, 073°48′00″ W approximately 8.35 nautical miles east of Sandy Hook, NJ. Initial damage assessment indicates that the Ambrose Light is no longer watching properly and in danger of collapse, creating an additional hazard to vessels operating in the area. This safety zone is being created in response to this emergency situation in order to keep mariners away from the hazards associated with the damaged structure and from the hazards associated with survey and reconstruction operations. Discussion of Rule This rule will provide for the safety of vessel traffic in and around Ambrose Light (LLNR 720). This regulation establishes a temporary safety zone on the navigable waters of the Atlantic Ocean within a 250-yard radius of position 40°27′00″ N, 073°48′00″ W, approximately 8.35 nautical miles east of Sandy Hook, NJ. The rule described herein prohibits the transit of vessels through the safety zone unless specifically authorized by the Captain of the Port, New York. This safety zone is in effect from 12:01 a.m. on November 5, 2007 until 11:59 p.m. on May 5, 2008. The zone will be enforced during the entire effective period unless the survey and reconstruction work is completed prior to the last effective date. If survey and reconstruction is completed before May 5, 2008, the Coast Guard will cease enforcement of the safety zone. Marine traffic may transit safely outside of the zone during the enforcement period. The Captain of the Port New York will notify the maritime community of the safety zone by publication in the Local Notice to Mariners, Safety Voice Broadcasts, and on the internet at *http://homeport.uscg.mil/newyork* . 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. We expect the economic impact of this rule will be so minimal that a full Regulatory is unnecessary. This regulation may have some impact on the public, but the potential impact will be minimized for the following reason: vessels may transit around the 250-yard safety zone. 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 might be small entities: The owners or operators of vessels intending to transit within a 250-yard radius of Ambrose Light (LLNR 720) at 40°27′00″ N, 073°48′00″ W approximately 8.35 nautical miles east of Sandy Hook, NJ. However, this safety zone will not have a significant economic impact on a substantial number of small entities as vessels will be able to transit around the 250-yard safety zone. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Commander M. McBrady, Waterways Management Division, Coast Guard Sector New York
(718)354-2353. 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 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 an 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 which guides 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 rule fits category (34)(g) as it establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSSES . 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.T01-157 to read as follows: § 165.T01-157 Safety Zone: Ambrose Light, Offshore Sandy Hook, New Jersey, Atlantic Ocean
(a)*Location.* The following area is a Safety Zone: All navigable waters of the Atlantic Ocean within a 250-yard radius of Ambrose Light (LLNR 720) at position 40°27′00″ N, 073°48′00″ W, approximately 8.35 nautical miles east of Sandy Hook, NJ.
(b)*Effective Dates.* This regulation is effective from 12:01 a.m. on November 5, 2007 to 11:59 p.m. on May 5, 2008.
(c)*Definitions.* The following definition applies to this section: *On-scene representative* , means any commissioned, warrant, and petty officers of the Coast Guard on board Coast Guard, Coast Guard Auxiliary, and local, state, and federal law enforcement vessels who have been authorized to act on the behalf of the Captain of the Port, New York.
(d)*Regulations.*
(1)The general regulations contained in 33 CFR 165.23 apply.
(2)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, New York, or his on-scene representative.
(3)Vessel operators desiring to enter or operate within the safety zone must contact the COTP or the COTP's on-scene representative on VHF Channel 16 (156.8 MHz) to seek permission to do so. If permission is granted, vessel operators must comply with all directions given to them by the COTP or the COTP's on-scene representative. Dated: November 6, 2007. R.R. O'Brien, Captain, U.S. Coast Guard, Commander, Coast Guard Sector New York. [FR Doc. E7-22960 Filed 11-23-07; 8:45 am] BILLING CODE 4910-15-P 72 226 Monday, November 26, 2007 Proposed Rules DEPARTMENT OF AGRICULTURE Farm Service Agency 7 CFR Part 786 RIN 0560-AH74 Dairy Disaster Assistance Payment Program III AGENCY: Farm Service Agency, USDA. ACTION: Proposed rule. SUMMARY: This document proposes a new program, the Dairy Disaster Assistance Payment Program III, as authorized by the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007. The proposed program would provide $16 million in assistance for producers in counties designated as a major disaster or emergency area by the President, or those declared a natural disaster area by the Secretary of Agriculture. Counties declared disasters by the President may be eligible, even though agricultural loss was not covered by the declaration, if there has been a Farm Service Agency Administrator's Physical Loss Notice covering such losses. The natural disaster declarations by the Secretary or the President must have been issued between January 1, 2005 and February 28, 2007, that is, after January 1, 2005, and before February 28, 2007. Counties contiguous to such counties will also be eligible. This proposed program is designed to provide financial assistance to producers who suffered dairy production losses due to natural disasters in the eligible counties. DATES: We will consider comments that we receive by December 26, 2007. ADDRESSES: We invite you to submit comments on this proposed rule. In your comment, include the volume, date, and page number of this issue of the **Federal Register** . You may submit comments by any of the following methods: • E-Mail: *Danielle.Cooke@wdc.usda.gov.* • Fax:
(202)690-1536. • Mail: Grady Bilberry, Director, Price Support Division (PSD), Farm Service Agency (FSA), United States Department of Agriculture (USDA), STOP 0512, Room 4095-S, 1400 Independence Avenue, SW., Washington, DC 20250-0512. • Hand Delivery or Courier: Deliver comments to the above address. • Federal eRulemaking Portal: Go to *http://www.regulations.gov* . Follow the online instructions for submitting comments. Comments may be inspected in the Office of the Director, PSD, FSA, USDA, Room 4095 South Building, Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. A copy of this proposed rule is available through the FSA home page at *http://www.fsa.usda.gov/* . FOR FURTHER INFORMATION CONTACT: Danielle Cooke, telephone:
(202)720-1919; e-mail: *Danielle.Cooke@wdc. usda.gov* . SUPPLEMENTARY INFORMATION: Background Section 9007 of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 (Pub. L. 110-28), enacted May 25, 2007, provides the Secretary of Agriculture with $16 million to make payments to dairy producers for losses in counties declared or designated a natural disaster during the period of January 2, 2005 through February 27, 2007, by the President or Secretary of Agriculture. For timely Presidential declarations that do not cover agricultural loss, the subject counties may still be covered if the county was the subject of a Farm Service Agency
(FSA)Administrator's Loss Notice. Counties contiguous to such declared counties are also eligible. Each of these counties is referred to as a disaster county in this document. The period from January 2, 2005 through February 27, 2007, is referred to as the eligible period. Since 2005 dairy production in many counties throughout the United States has been severely impacted by widespread and significant destruction caused by various natural disasters such as hurricanes, wildfires, ice storms, heavy rainfalls, floods, and severe blizzard conditions. As a result, many dairy producers may have incurred decreases in production due to cattle losses and milk that had to be dumped because of closed milk plants and damaged containment equipment caused by the widespread destruction by the natural disasters. Also, the loss of electricity, the shortage of fuel, and infrastructure damage temporarily interrupted the flow of dairy products to markets. The proposed regulations for the new program would allow dairy producers who suffered production losses, for which relief has not been previously provided, that are the result of natural disasters declared during the eligible period to apply for compensation for losses incurred during that period. This rule would offset a portion of the per-pound losses dairy producers have incurred commercially marketing milk in the United States. Benefits would be provided to eligible dairy producers in those disaster counties who meet all program eligibility requirements, and are subsequently approved for participation in the Dairy Disaster Assistance Payment Program III (DDAP-III). This program is similar to previous programs: The 2004 program (DDAP-I) and 2005 program (DDAP-II). Dairy producers in counties contiguous to a directly eligible county are also eligible for DDAP-III benefits. Eligible dairy producers would receive payments to help pay operating expenses and meet other financial obligations. To be eligible under the proposed program, dairy producers must have produced milk in the United States any time during the eligible period as part of a dairy operation located in an eligible disaster county. Production losses suffered by the dairy operation must have occurred during the specified eligibility period and must have been as a result of the disaster declaration specific to the county in which the dairy operation is located. FSA may, as appropriate, make adjustments to calculated production losses not resulting from the applicable disaster specified in the declaration for an eligible disaster county. Production losses incurred in each authorized program year, during the eligible period specified, are eligible for benefits, if a disaster declaration was issued for a county for such program year and no previous disaster payment has been made. A dairy producer must provide the number of cows in the operation's dairy herd for each month of the calendar year in which a disaster declaration was issued to determine the average number of cows in the dairy herd for the operation per applicable year. In addition, adequate evidence of dairy production losses must be provided to FSA to substantiate the losses suffered and certified by each producer. Payments would be made according to a formula, which would estimate expected production based on herd size, and would be subject to funding and other limitations. Subject to comment and further consideration, payments would not be reduced as a result of payments from a milk buyer or marketing cooperative for dumped or spoiled milk. Applicants must apply for benefits during the sign-up period announced by the Deputy Administrator for Farm Programs. FSA expects to announce the sign-up period following the publication of this proposed rule. At the close of the sign-up period, the total production losses from all eligible applicants would be determined. Payment eligibilities would be separately calculated on an operation by operation basis. An individual may be involved in more than one operation. Payments to eligible producers would be calculated by multiplying the eligible pounds by the average price received for commercial milk production in the affected areas during the calendar year specific to the disaster for 2005 and 2006, and for the months of January and February during calendar year 2007 for 2007 claims. A producer may have a claim for more than one year; however, a deduction would be made for payments made under DDAP-II or other disaster programs. If the total amount of available funding ($16 million, less any reserve established to account for disputed claims) is insufficient to compensate eligible producers for eligible losses, then FSA would, under this proposal, pay losses at two levels in an effort to more equitably distribute the limited funds and maximize the effectiveness of the program. Specifically, in the case of inadequate funds for all eligible losses, FSA would calculate each operation's overall annual percentage reduction for each full disaster claim period that corresponds with the applicable declared disaster from the calculated base year production for the operation for the calendar year of the declared disaster, or first two months of 2007 for disasters in 2007. The disaster claim period applicable to:
(1)Disaster declarations for calendar year 2005 are all months contained in the 2005 calendar year;
(2)disaster declarations for calendar year 2006, are all months contained in the 2006 calendar year, and
(3)disaster declarations for 2007, the first two months of the year only. Again, losses would only be covered for operations in counties with timely disaster declarations as set out in the proposed regulation and above. Annual base year production for each dairy operation would be computed based on annual data obtained from the National Agricultural Statistics Service of milk production per cow for each applicable State in which the disaster county is located. If a reduced payment is needed due to funding constraints, calculated losses over the applicable disaster claim period greater than 20-percent of a producer's normal production would be paid at the maximum per-pound payment rate. Payments for eligible losses below the 20-percent threshold would be made at a rate not to exceed the maximum rate for other losses that would exhaust the available funds that remain following payment of eligible losses at the higher level. FSA proposes to establish the minimum loss level for the priority at 20 percent for DDAP-III in order to be consistent with other disaster programs. For example, the 20-percent threshold mirrors that of DDAP-I and DDAP-II. Different payments for differing degrees of losses would distribute the limited funds provided under this program in a manner that provides greater assistance to producers who suffered greater losses from the subject disasters. An example of how the apportionment might affect producers is set out in the following table. If funds are adequate for all eligible losses, all eligible producers would be paid at the “maximum rate,” which amounts to the average price, as determined under the proposed regulation, received for commercial milk production in their area during the disaster claim period applicable to the declared disaster. FSA encourages comments on these provisions and the appropriate loss-level percentage. Apportionment example: Producer A (Louisiana 2005 losses) Producer B (California 2005 losses) Producer C (Kansas 2006 losses) Producer D (Georgia 2006 losses) Total Estimated Base Production 620,000 11,339,500 1,046,000 1,367,550 Actual Production 485,000 10,000,000 600,000 1,100,000 Total Eligible Loss 135,000 1,339,500 446,000 267,550 20% of Base Production 124,000 2,267,900 209,000 273,510 Pounds of loss above 20% loss level 11,000 0 237,000 0 Payment Rate $0.1596/lb. $0.1388/lb. $0.1214/lb. $0.1443/lb. DDAP-III for loss above 20% $1,756 $0 $28,772 $0 DDAP-III for under 20% loss @ $0. 05/lb. (example only) $6,200 $113,395 $10,450 $13,676 Total DDAP-III $7,956 $113,395 $39,222 $13,676 Eligible Losses × average price $21,546 $185,923 $54,144 $38,608 Percent production loss suffered 22 12 43 20 Percent financial losses recovered from DDAP-III 37 61 72 35 Gross revenue and per-person payment limits do not apply. However, consistent with other FSA disaster programs, the total assistance provided to a participant for a disaster year under DDAP-III, plus the value of the production that was not lost, may not exceed 95 percent of the value of the production in the absence of a loss, as estimated by the Secretary. Information provided on applications and supporting documentation will, under the proposal, be subject to verification by FSA. False certifications by producers carry strict penalties and FSA will validate applications with random spot-checks. Dairy producers determined to have made any false certifications or adopted any misrepresentation, scheme, or device that defeats the program's purpose will be required to refund any payments issued under this program with interest, and may be subject to other civil, criminal, or administrative remedies. During the application period, dairy producers may apply in person at FSA county offices during regular business hours. Applications may also be submitted to FSA by mail or FAX. Program applications may be obtained in person, by mail, telephone, and facsimile from producers' designated FSA county office or via the Internet at *http://www.fsa.usda.gov* . Differences Between DDAP-II and DDAP-III DDAP-III would provide payments related to dairy production losses, as required by the legislation. DDAP-II was required to provide payments related to both dairy production losses and spoilage losses. As proposed, DDAP-III would basically follow regulations for DDAP-II, but it was determined that only production losses would be covered. Spoilage losses, in accordance with the legislation, will not be covered by DDAP-III. DDAP-III applies to dairy producers who suffered dairy production losses in disaster counties during natural disasters declarations issued during the eligible period. DDAP-II applied to producers who suffered dairy losses in hurricane affected counties during 2005, which included a county included in the geographic area covered by a natural disaster declaration related to Hurricane Katrina, Hurricane Ophelia, Hurricane Rita, Hurricane Wilma, or a related condition. The new program has a greater coverage in time and in counties. Provisions would, however, avoid double payment under DDAP-II and DDAP-III. Both DDAP-II and DDAP-III include contiguous counties. The regulations describe DDAP-III, addressing applications, eligibility, verification of information, payment information, appeals, conditions causing ineligibility, recordkeeping requirements, and refund requirements. In addition the DDAP-III regulations include a section on the termination of the program. Notice and Comment In order to expedite the availability of funds it has been determined to be in the public interest to limit the comment period to 30 days. Executive Order 12866 This proposed rule has been determined to be significant under Executive Order 12866 and was reviewed by the Office of Management and Budget (OMB). A cost-benefit assessment of this rule was completed and is available from Ms. Cooke using the contact information above. Summary of Economic Impacts Program payments will provide eligible producers funds to help pay operating expenses and meet other financial obligations. Program payments are expected to total and increase both Federal outlays and aggregate farm revenue by $16 million. This assistance will help dairy producers affected by natural disasters to recover some lost income and additional repair expenses to aid in continuing their agricultural production businesses. The States with the largest expected claims are: Idaho (33 percent), California (16 percent), New Mexico (13 percent), Indiana and Michigan (7-8 percent), Washington and Arizona (5 percent), and Wisconsin (3 percent). Expected claims totaled 3.1 million hundred weight (cwt). The average payment rate will be determined by dividing the $16 million available funding by the total milk pounds eligible for payment. The resulting payment rate is projected to be $5.15 per cwt., substantially below average mailbox prices. 1 The average mailbox price for all Federal Orders in the United States was $12.87 in 2006 and $11.28 in California, which is outside the Federal Order system. The lowest mailbox price in the Federal Order system in 2006 was $11.13 in New Mexico. 1 The mailbox price is the net price producers receive for their milk, after all marketing costs, discounts, and premiums are accounted for. The Agricultural Marketing Service collects and publishes monthly mailbox prices. Producers who can demonstrate a loss exceeding 20 percent of their production will receive compensation equal to the average mailbox price prevailing in their region during the period of the disaster. To the extent that payments equal to the mailbox price are made to some producers, the otherwise-average payment rate of $5.15 will be reduced. In theory, it is possible that enough producers could claim a 20-percent-or-greater loss and receive payments equal to the mailbox price, that payments to the remaining producers with lower losses could be considerably less than $5.15. However, FSA does not have sufficient data to estimate how many producers might have losses exceeding 20 percent of their production, or how much milk such losses might represent. Payments are expected to increase producer income and defray repair and cattle replacement costs. Outlays will be monitored to ensure that they do not exceed the actual loss. The $16 million is a small share of federal farm assistance. For example, CCC made $15.3 billion in direct cash payments to farmers and ranchers in fiscal 2005, excluding all payments made for disasters, with the largest category of payments being $8 billion paid under the Direct and Counter Cyclical Program. CCC direct cash payments for fiscal 2005 through estimated fiscal 2007 total $43.7 billion, averaging $14.6 billion, annually. Regulatory Flexibility Act The Regulatory Flexibility Act does not apply to this rule because FSA is not required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking with respect to the subject of this rule. Environmental Assessment FSA has determined that this proposed rule does not constitute a major State or Federal action that would significantly affect the human or natural environment consistent with the National Environmental Policy Act 40 CFR 1502.4, Major Federal actions requiring the preparation of Environmental Impact Statements, and 7 CFR Part 799: Environmental Quality and Related Environmental Concerns—Compliance with NEPA implementing the regulations of the Council on Environmental Quality, 40 CFR parts 1500-1508. Therefore no environmental assessment or environmental impact statement will be prepared. Executive Order 12988 This rule has been reviewed in accordance with Executive Order 12998. This rule would preempt State laws to the extent such laws are inconsistent with it. This rule would not be retroactive. Before judicial action may be brought concerning this rule, all administrative remedies set forth at 7 CFR Parts 11 and 780 must be exhausted. Executive Order 12372 This program is not subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983). Unfunded Mandates Although we are publishing this as a proposed rule, Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)does not apply to this rule because FSA is not required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking for the subject of this rule. Further, this rule contains no unfunded mandates as defined in sections 202 and 205 of UMRA. Paperwork Reduction Act of 1995 In accordance with the Paperwork Reduction Act of 1995, FSA is submitting a request for approval to the Office of Management and Budget
(OMB)of an information collection required to support this proposed rule for the DDAP-III. A notice was published in the **Federal Register** on August 23, 2007 (72 FR 48254) with estimates of the information collection burden required to implement this program and a request for comments on those requirements as required by 5 CFR 1320.8(d)(1). No comments were received. The notice referred to the program as the 2005-2006 Dairy Disaster Assistance Payment program. The program was subsequently renamed DDAP-III. The information Collection is described below: *Title:* 2005-2006 Dairy Disaster Assistance Payment Program. *OMB Control Number:* 0560-0252. *Type of Request:* Revision of a currently approved collection. *Abstract:* Dairy operations are eligible to receive direct payments provided they make certifications that attest to their eligibility to receive such payments. As appropriate, these operations must certify and identify:
(1)That the dairy operation is physically located in a county declared a natural disaster after January 1, 2005 and before February 28, 2007 (that is the period of January 2, 2005 through February 27, 2007);
(2)The identity of actual persons associated with that operation during that period;
(3)The pounds of dairy production losses incurred as a result of the declared natural disaster;
(4)The number of cows in the dairy operation during the calendar year applicable to the disaster declaration;
(5)That they understand the dairy operation must provide adequate proof of annual milk production commercially marketed by all persons in the dairy operation during the period specified by the FSA to determine the total pounds of eligible losses incurred by the operation. The information collection is used by FSA to determine the program eligibility of the dairy operations. FSA considers the information collected essential to prudent eligibility determinations and payment calculations. The revision on the information collection covers only the dairy production losses this time, and the number of respondents increases in this information collection. Additionally, without accurate information on dairy operations, the national payment rate would be inaccurate, resulting in payments being made to ineligible recipients, and the integrity and accuracy of the program could be compromised. *Estimate of Burden:* Public reporting burden for this collection of information is estimated to average 15 minutes (0.25 hour) per response. The average travel time, which is included in the total annual burden, is estimated to be 1 hour per respondent. Approximately 37 percent of respondents (14,750) are expected to choose to submit the form on-line. Therefore, the burden estimate includes travel time for 25,250 respondents. *Respondents:* Dairy Operations. *Estimated Number of Respondents:* 40,000. *Estimated Number of Responses per Respondent:* 1. *Estimated Total Annual Burden on Respondents:* 35,250 hours. E-Government Act Compliance FSA is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. The forms, regulations, and other information collection activities required to be utilized by a person subject to this rule are available at *http://www.fsa.usda.gov.* Applications may be submitted at the FSA county offices. List of Subjects in 7 CFR Part 786 Dairy products, Disaster assistance, Fraud, Penalties, Price support programs, Reporting and recordkeeping requirements. For the reasons set out in the preamble, 7 CFR part 786 is proposed to be added to read as follows: PART 786—DAIRY DISASTER ASSISTANCE PAYMENT PROGRAM III (DDAP-III) Sec. 786.100 Applicability. 786.101 Administration. 786.102 Definitions. 786.103 Time and method of application. 786.104 Eligibility. 786.105 Proof of production. 786.106 Determination of losses incurred. 786.107 Rate of payment and limitations on funding. 786.108 Availability of funds. 786.109 Appeals. 786.110 Misrepresentation, scheme, or device. 786.111 Death, incompetence, or disappearance. 786.112 Maintaining records. 786.113 Refunds; joint and several liability. 786.114 Miscellaneous provisions. 786.115 Termination of program. Authority: Pub. L. 110-28, 121 Stat. 112. PART 786—DAIRY DISASTER ASSISTANCE PAYMENT PROGRAM III (DDAP-III) § 786.100 Applicability.
(a)Subject to the availability of funds, this part specifies the terms and conditions applicable to the Dairy Disaster Assistance Payment Program (DDAP-III) authorized by section 9007 of Public Law 110-28. Benefits are available to eligible United States producers who have suffered dairy production losses in eligible counties as a result of a natural disaster declared during the period between January 1, 2005, and February 28, 2007, (that is, after January 1, 2005, and before February 28, 2007).
(b)To be eligible for this program, a producer must have been a milk producer anytime during the period of January 2, 2005, through February 27, 2007, in a county declared a natural disaster by the Secretary of Agriculture, declared a major disaster or emergency designated by the President of the United States. For a county for which there was a timely Presidential declaration, but the declaration did not cover the loss, the county may still be eligible if the county is one for which an appropriate determination of a Farm Service Agency
(FSA)Administrator's Physical Loss Notice applies. Counties contiguous to a county that is directly eligible by way of a natural disaster declaration are also eligible. Only losses occurring in eligible counties are eligible for payment in this program.
(c)Subject to the availability of funds, FSA will provide benefits to eligible dairy producers. Additional terms and conditions may be specified in the payment application that must be completed and submitted by producers to receive a disaster assistance payment for dairy production losses.
(d)To be eligible for payments, producers must meet the provisions of, and their losses must meet the conditions of, this part and any other conditions imposed by FSA. § 786.101 Administration.
(a)DDAP-III will be administered under the general supervision of the Administrator, FSA, or a designee, and be carried out in the field by FSA State and county committees (State and county committees) and FSA employees.
(b)State and county committees, and representatives and employees thereof, do not have the authority to modify or waive any of the provisions of the regulations of this part.
(c)The State committee will take any action required by the regulations of this part that has not been taken by the county committee. The State committee will also:
(1)Correct, or require the county committee to correct, any action taken by such county committee that is not in accordance with the regulations of this part; and
(2)Require a county committee to withhold taking any action that is not in accordance with the regulations of this part.
(d)No provision of delegation in this part to a State or county committee will preclude the Administrator, FSA, or a designee, from determining any question arising under the program or from reversing or modifying any determination made by the State or county committee.
(e)The Deputy Administrator, Farm Programs, FSA, may authorize State and county committees to waive or modify deadlines in cases where lateness or failure to meet such requirements do not adversely affect the operation of the DDAP-III and does not violate statutory limitations of the program.
(f)Data furnished by the applicants is used to determine eligibility for program benefits. Although participation in DDAP-III is voluntary, program benefits will not be provided unless the producer furnishes all requested data. § 786.102 Definitions. The definitions in 7 CFR part 718 apply to this part except to the extent they are inconsistent with the provisions of this part. In addition, for the purpose of this part, the following definitions apply. *Administrator* means the FSA Administrator, or a designee. *Application* means DDAP-III application. *Application period* means the time period established by the Deputy Administrator for producers to apply for program benefits. *Base year production* means the applicable National Agriculture Statistics Service
(NASS)average of milk produced per cow for a dairy operation in the applicable State of the eligible disaster county during the period assigned in § 786.104(g), or other measure approved by the Administrator if a suitable NASS average is not available. *Claim period* means, as assigned in this part, the qualifying months during the period of January 2, 2005 through February 27, 2007, following the base month, during which the loss occurred. *County committee* means the FSA county committee. *County office* means the FSA office responsible for administering FSA programs for farms located in a specific area in a State. *Dairy operation* means any person or group of persons who, as a single unit, as determined by FSA, produces and markets milk commercially from cows and whose production facilities are located in the United States. *Department* or *USDA* means the United States Department of Agriculture. *Deputy Administrator* means the Deputy Administrator for Farm Programs (DAFP), FSA, or a designee. *Disaster county* means a county included in the geographic area covered by a natural disaster declaration, and any county contiguous to a county that qualifies by a natural disaster declaration. *Farm Service Agency* or *FSA* means the Farm Service Agency of the Department. *Hundredweight* or *cwt.* means 100 pounds. *Milk handler* or *cooperative* means the marketing agency to, or through, which the producer commercially markets whole milk. *Milk marketings* means a marketing of milk for which there is a verifiable sale or delivery record of milk marketed for commercial use. *Natural disaster declaration* means a natural disaster declaration issued by the Secretary of Agriculture after January 1, 2005, but before February 28, 2007, under section 321(a) of the Consolidated Farm and Rural Development Act (7 U.S.C. 1961(a)), a major disaster or emergency designation by the President of the United States in that period under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, or a determination of a Farm Service Agency Administrator's Physical Loss Notice for a county covered in an otherwise eligible Presidential declaration. *Payment pounds* means the pounds of milk production from a dairy operation for which the dairy producer is eligible to be paid under this part. *Producer* means any individual, group of individuals, partnership, corporation, estate, trust association, cooperative, or other business enterprise or other legal entity who is, or whose members are, a citizen of, or a legal resident alien in, the United States, and who directly or indirectly, as determined by the Secretary, shares in the risk of producing milk, and makes contributions (including land, labor, management, equipment, or capital) to the dairy farming operation of the individual or entity. *Reliable production evidence* means satisfactory records provided by the producer that are used to substantiate the amount of production reported when verifiable records are not available; the records may include copies of receipts, ledgers of income, income statements of deposit slips, register tapes, and records to verify production costs, contemporaneous measurements, and contemporaneous diaries that are determined acceptable by the county committee. *Verifiable production records* means evidence that is used to substantiate the amount of production marketed, including any dumped production, and that can be verified by FSA through an independent source. § 786.103 Time and method of application.
(a)Dairy producers may obtain an application, in person, by mail, by telephone, or by facsimile from any FSA county office. In addition, applicants may download a copy of the application at *http://www.sc.egov.usda.gov.*
(b)A request for benefits under this part must be submitted on a completed DDAP-III application. Applications and any other supporting documentation must be submitted to the FSA county office serving the county where the dairy operation is located, but, in any case, must be received by the FSA county office by the close of business on the date established by the Deputy Administrator. Applications not received by the close of business on such date will be disapproved as not having been timely filed and the dairy producer will not be eligible for benefits under this program.
(c)All persons who share in the risk of a dairy operation's total production must certify to the information on the application before the application will be considered complete.
(d)Each dairy producer requesting benefits under this part must certify to the accuracy and truthfulness of the information provided in their application and any supporting documentation. All information provided is subject to verification by FSA. Refusal to allow FSA or any other agency of the Department of Agriculture to verify any information provided may result in a denial of eligibility. Furnishing the information is voluntary; however, without it program benefits will not be approved. Providing a false certification to the Government may be punishable by imprisonment, fines, and other penalties or sanctions. § 786.104 Eligibility.
(a)Producers in the United States will be eligible to receive dairy disaster benefits under this part only if they have suffered dairy production losses, previously uncompensated by disaster payments including any previous dairy disaster payment program, during the claim period applicable to a natural disaster declaration in a disaster county. To be eligible to receive payments under this part, producers in a dairy operation must:
(1)Have produced and commercially marketed milk in the United States and commercially marketed the milk produced anytime during the period of January 2, 2005 through February 27, 2007;
(2)Be a producer on a dairy farm operation physically located in an eligible county where dairy production losses were incurred as a result of a disaster for which an applicable natural disaster declaration was issued between January 1, 2005 and February 28, 2007, and limit their claims to losses that occurred in those counties, specific to conditions resulting from the declared disaster as described in the natural disaster declaration;
(3)Provide adequate proof, to the satisfaction of the FSA county committee, of monthly milk production commercially marketed by all persons in the eligible dairy operation during the applicable milk marketing calendar year and claim period that corresponds with the issuance date of the applicable natural disaster declaration, or other period as determined by FSA, to determine the total pounds of eligible losses that will be used for payment; and
(4)Apply for payments during the application period established by the Deputy Administrator.
(b)Payments may be made for losses suffered by an otherwise eligible producer who is now deceased or is a dissolved entity if a representative who currently has authority to enter into a contract for the producer or the producer's estate signs the application for payment. Proof of authority to sign for the deceased producer's estate or a dissolved entity must be provided. If a producer is now a dissolved general partnership or joint venture, all members of the general partnership or joint venture at the time of dissolution or their duly-authorized representatives must sign the application for payment.
(c)Producers associated with a dairy operation must submit a timely application and satisfy the terms and conditions of this part, instructions issued by FSA, and instructions contained in the application to be eligible for benefits under this part.
(d)As a condition to receive benefits under this part, a producer must have been in compliance with the Highly Erodible Land Conservation and Wetland Conservation provisions of 7 CFR part 12 for the calendar year applicable to the natural disaster declaration and loss claim period, and must not otherwise be barred from receiving benefits under 7 CFR part 12 or any other law or regulation.
(e)Payments are limited to losses in eligible counties, in eligible months.
(f)All payments under this part are subject to the availability of funds.
(g)Eligible losses are determined from the applicable base year production (see definition in § 786.102) that corresponds to the natural disaster declaration and must have occurred during that same period as follows:
(1)For disaster declarations for disasters during calendar year 2005, the base period and the corresponding claim period are the 2005 calendar year months of January through December;
(2)For disaster declarations issued for disasters during calendar year 2006, the base period and corresponding claim period are the 2006 calendar year months of January through December; and
(3)For disaster declarations issued for disasters in January and February of 2007, the base period and corresponding claim period are the 2007 calendar year months of January and February.
(h)Deductions in eligibility will be made for any disaster payments previously received for the loss including any made under a previous dairy disaster assistance payment program for 2005. § 786.105 Proof of production.
(a)Evidence of production is required to establish the commercial marketing and production history of the dairy operation so that dairy production losses can be computed in accordance with § 786.106.
(b)A dairy producer must, based on the instructions issued by the Deputy Administrator, provide adequate proof of the dairy operation's commercial production, including any dairy herd inventory records for the operation, for each month of the applicable base period and claim period that corresponds with the issuance date of the applicable natural disaster declaration.
(1)A producer must certify and provide such proof as requested that losses for which compensation is claimed were related to the disaster declaration issued and occurred in an eligible county during the eligible claim period.
(2)Additional supporting documentation may be requested by FSA as necessary to verify production losses to the satisfaction of FSA.
(c)Adequate proof of production history of the dairy operation under paragraph
(b)of this section must be based on milk marketing statements obtained from the dairy operation's milk handler or marketing cooperative. Supporting documents may include, but are not limited to: Tank records, milk handler records, daily milk marketings, copies of any payments received from other sources for production losses, or any other documents available to confirm or adjust the production history losses incurred by the dairy operation. All information provided is subject to verification, spot check, and audit by FSA.
(d)As specified in § 786.106, loss calculations will be based on comparing the expected base production using herd figures and NASS yield data consistent with this part and the actual production. Such calculations are subject to adjustments as may be appropriate such as a correction for losses not due to the disaster. If adequate proof of normally marketed production and any other production for relevant periods is not presented to the satisfaction of FSA, the request for benefits will be rejected. Special adjustments for new producers may be made as determined necessary by the Administrator. § 786.106 Determination of losses incurred.
(a)Eligible payable losses are calculated on a dairy operation by dairy operation basis and are limited to those occurring during the applicable claim period, as provided by § 786.104(g), that corresponds with the applicable natural disaster declaration. Specifically, dairy production losses incurred by producers under this part are determined on the established history of the dairy operation's actual commercial production marketed during the applicable claim period that corresponds with the applicable natural disaster declaration, as provided by the dairy operation consistent with § 786.105. Except as otherwise provided in this part, the base year production, as defined in § 786.102 and established in § 786.104(g) is determined based on the number of cows in a dairy operations herd during the relevant period and data obtained from NASS for milk production per cow during the relevant period for the State in which the eligible disaster county is geographically located.
(b)The eligible dairy production losses for a dairy operation for each of the authorized claim periods will be:
(1)The relevant periods' base year production for the dairy operation calculated under paragraph
(a)of this section less,
(2)For each such claim period for each dairy operation the actual commercially-marketed production relevant to that period.
(c)Spoiled or dumped milk must be counted as production for the relevant claim period. Actual production losses may be adjusted to the extent the reduction in production is not certified by the producer to be the result of the disaster identified in the natural disaster declaration or is determined by FSA not to be related to the natural disaster identified in the natural disaster declaration. FSA county committees will determine production losses that are not caused by the disaster associated with the natural disaster declaration. The calculated production loss determined in § 786.106(b) will be adjusted to account for production losses determined by the county committee to not have been associated with the declared natural disaster for an eligible disaster county. The production adjustment may be calculated on a monthly basis according to the number of cows in the dairy operation's dairy herd during the applicable month or months determined to be ineligible to generate claims for benefits, multiplied by the milk produced per cow for the month as determined from monthly data obtained from NASS, as available. If monthly NASS data is unavailable for the State in which the eligible disaster county is located, an alternative method of determining the expected milk produced per cow for that State may be established by the Deputy Administrator. Other appropriate adjustments will be made on such basis as the Deputy Administrator finds to be consistent with the objectives of the program.
(d)Actual production, as adjusted, that exceeds the base year production will mean that the dairy operation incurred no eligible production losses for the corresponding claim period as a result of the natural disaster.
(e)Eligible production losses as otherwise determined under paragraphs
(a)through
(d)of this section for each authorized year of the program are added together to determine total eligible losses incurred by the dairy operation under DDAP-III subject to all other eligibility requirements as may be included in this part or elsewhere, including the deduction for previous payments including those made under a previous DDAP program.
(f)Payment on eligible dairy operation losses will be calculated using whole pounds of milk. No double counting is permitted, and only one payment will be made for each pound of milk calculated as an eligible loss after the distribution of the operation's eligible production loss among the producers of the dairy operation according to § 786.107(b). Payments under this part will not be affected by any payments for dumped or spoiled milk that the dairy operation may have received from its milk handler, marketing cooperative, or any other private party; however, produced milk that was dumped or spoiled will still count as production. § 786.107 Rate of payment and limitations on funding.
(a)Subject to the availability of funds, the payment rate for eligible production losses determined according to § 786.106 is, depending on the State, the annual average Mailbox milk price for the Marketing Order, applicable to the State where the eligible disaster county is located, as reported by the Agricultural Marketing Service during the relevant period. States not regulated under a Marketing Order will be assigned a payment rate based on contiguous or nearby State's mailbox price. Maximum per pound payment rates for eligible losses for dairy operations located in specific states during the relevant period are as follows: State Mailbox price 2005 Mailbox price 2006 Mailbox price Jan-Feb 2007 Alabama 0.1596 0.1443 0.1615 Alaska 0.2040 0.2010 0.0000 Arizona 0.1388 0.1128 0.1282 Arkansas 0.1596 0.1443 0.1615 California 0.1388 0.1128 0.1282 Connecticut 0.1539 0.1344 0.1538 Delaware 0.1539 0.1344 0.1538 Florida 0.1758 0.1603 0.1739 Georgia 0.1596 0.1443 0.1615 Idaho 0.1402 0.1215 0.1388 Illinois 0.1514 0.1283 0.1476 Indiana 0.1503 0.1294 0.1460 Iowa 0.1507 0.1285 0.1479 Kansas 0.1403 0.1214 0.1407 Kentucky 0.1527 0.1349 0.1545 Louisiana 0.1596 0.1443 0.1615 Maine 0.1539 0.1344 0.1538 Maryland 0.1539 0.1344 0.1538 Massachusetts 0.1539 0.1344 0.1538 Michigan 0.1478 0.1264 0.1438 Minnesota 0.1512 0.1277 0.1502 Mississippi 0.1596 0.1443 0.1615 Missouri (Northern) 0.1403 0.1214 0.1407 Missouri (Southern) 0.1467 0.1254 0.1445 Montana 0.1512 0.1277 0.1502 Nebraska 0.1403 0.1214 0.1407 Nevada 0.1388 0.1128 0.1282 New Hampshire 0.1539 0.1344 0.1538 New Jersey 0.1539 0.1344 0.1538 New Mexico 0.1323 0.1108 0.1324 New York 0.1539 0.1303 0.1489 North Carolina 0.1527 0.1349 0.1545 North Dakota 0.1512 0.1277 0.1502 Ohio 0.1506 0.1302 0.1496 Oregon 0.1402 0.1215 0.1388 Pennsylvania (Eastern) 0.1539 0.1340 0.1538 Pennsylvania (Western) 0.1539 0.1302 0.1487 Puerto Rico 0.2550 0.2570 0.0000 Rhode Island 0.1539 0.1344 0.1538 South Carolina 0.1527 0.1349 0.1545 South Dakota 0.1512 0.1277 0.1502 Tennessee 0.1527 0.1349 0.1545 Texas 0.1405 0.1194 0.1398 Vermont 0.1539 0.1344 0.1538 Virginia 0.1527 0.1349 0.1545 Washington 0.1402 0.1215 0.1388 West Virginia 0.1506 0.1302 0.1496 Wisconsin 0.1535 0.1305 0.1505 Note: Calculations are rounded to 7 decimal places.
(b)Subject to the availability of funds, each eligible dairy operation's payment is calculated by multiplying the applicable payment rate under paragraph
(a)of this section by the operation's total eligible losses as adjusted pursuant to this part. Where there are multiple producers in the dairy operation, individual producers' payments are disbursed according to each producer's share of the dairy operation's production as specified in the application.
(c)If the total value of losses claimed nationwide under paragraph
(b)of this section exceeds the $16 million available for the DDAP-III, less any reserve that may be created under paragraph
(e)of this section, total eligible losses of individual dairy operations that, as calculated as an overall percentage for each full claim period applicable to the disaster declaration, are greater than 20 percent of the total base year production will be paid at the maximum rate under paragraph
(a)of this section to the extent available funding allows. A loss of over 20 percent in only one or two months during the applicable claim period does not of itself qualify for the maximum per-pound payment. Rather, the priority level must be reached as an average over the whole claim period for the relevant calendar year. Total eligible losses for a producer, as calculated under § 786.106, of less than or equal to 20 percent during the eligible claim period will then be paid at a rate, not to exceed the rate allowed in paragraph
(a)of this section, determined by dividing the eligible losses of less than 20 percent by the funds remaining after making payments for all eligible losses above the 20-percent threshold.
(d)In no event will the payment exceed the value determined by multiplying the producer's total eligible loss times the average price received for commercial milk production in the producer's area as defined in paragraph
(a)of this section.
(e)No participant will receive disaster benefits under this part that in combination with the value of production not lost would result in an amount that exceeds 95 percent of the value of the expected production for the relevant period as estimated by the Secretary. The sum of the value of the production not lost, if any, and the disaster payment received under this part cannot exceed 95 percent of what the production's value would have been if there had been no loss.
(f)A reserve may be created to handle pending or disputed claims, but claims will not be payable once the available funding is expended. § 786.108 Availability of funds. The total available program funds are $16 million as provided by section 9007 of Title IX of Public Law 110-28. § 786.109 Appeals. Provisions of the appeal regulations set forth at 7 CFR parts 11 and 780 apply to this part. Appeals of determinations of ineligibility or payment amounts are subject to the limitations in §§ 786.107 and 786.108 and other limitations that may apply. § 786.110 Misrepresentation, scheme, or device.
(a)In addition to other penalties, sanctions, or remedies that may apply, a dairy producer is ineligible to receive assistance under this program if the producer is determined by FSA to have:
(1)Adopted any scheme or device that tends to defeat the purpose of this program,
(2)Made any fraudulent representation,
(3)Misrepresented any fact affecting a program determination, or
(4)Violated 7 CFR 795.17 and thus be ineligible for the year(s) of violation and the subsequent year.
(b)Any funds disbursed pursuant to this part to any person or dairy operation engaged in a misrepresentation, scheme, or device must be refunded with interest together with such other sums as may become due. Interest will run from the date of the disbursement to the producer or other recipient of the payment from FSA. Any person or dairy operation engaged in acts prohibited by this section and any person or dairy operation receiving payment under this part is jointly and severally liable with other persons or dairy operations involved in such claim for benefits for any refund due under this section and for related charges. The remedies provided in this part are in addition to other civil, criminal, or administrative remedies that may apply. § 786.111 Death, incompetence, or disappearance. In the case of death, incompetency, disappearance, or dissolution of an individual or entity that is eligible to receive benefits in accordance with this part, such alternate person or persons specified in 7 CFR part 707 may receive such benefits, as determined appropriate by FSA. § 786.112 Maintaining records. Persons applying for benefits under this program must maintain records and accounts to document all eligibility requirements specified herein and must keep such records and accounts for 3 years after the date of payment to their dairy operations under this program. Destruction of the records after such date is at the risk of the party required, by this part, to keep the records. § 786.113 Refunds; joint and several liability.
(a)Excess payments, payments provided as the result of erroneous information provided by any person, or payments resulting from a failure to meet any requirement or condition for payment under the application or this part, must be refunded to FSA.
(b)A refund required under this section is due with interest determined in accordance with paragraph
(d)of this section and late payment charges as provided in 7 CFR part 792. Notwithstanding any other regulation, interest will be due from the date of the disbursement to the producer or other recipient of the funds.
(c)Persons signing a dairy operation's application as having an interest in the operation will be jointly and severally liable for any refund and related charges found to be due under this section.
(d)In the event FSA determines a participant owes a refund under this part, FSA will charge program interest from the date of disbursement of the erroneous payment. Such interest will accrue at the rate that the United States Department of the Treasury charges FSA for funds plus additional charges as deemed appropriate by the Administrator or provided for by regulation or statute.
(e)The debt collection provisions of part 792 of this chapter applies to this part except as is otherwise provided in this part. § 786.114 Miscellaneous provisions.
(a)Payments or any portion thereof due under this part must be made without regard to questions of title under State law and without regard to any claim or lien against the livestock, or proceeds thereof, in favor of the owner or any other creditor except agencies and instrumentalities of the U.S. Government.
(b)Any producer entitled to any payment under this part may assign any payments in accordance with the provisions of 7 CFR part 1404. § 786.115 Termination of program. This program will be terminated after payment has been made to those applicants certified as eligible pursuant to the application period established in § 786.104. All eligibility determinations will be final except as otherwise determined by the Deputy Administrator. Any claim for payment may be denied once the allowed funds are expended, irrespective of any other provision of this part. Signed at Washington, DC, on November 19, 2007. Glen L. Keppy, Acting Administrator, Farm Service Agency. [FR Doc. E7-22904 Filed 11-23-07; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0229; Directorate Identifier 2007-NM-042-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Model A330-200, A330-300, A340-200, and A340-300 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive
(AD)that applies to all Airbus Model A330-200, A330-300, A340-200, and A340-300 series airplanes. The existing AD currently requires a revision of the airplane flight manual to include procedures for a pre-flight elevator check before each flight, repetitive inspections for cracks of the attachment lugs of the mode selector valve position transducers on the elevator servo controls, and corrective actions if necessary. This proposed AD would retain the existing requirements, reduce the applicability of the existing AD, and add terminating actions. For certain airplanes, this proposed AD would require upgrading the flight control primary computers. This proposed AD results from cracks of the transducer body at its attachment lugs. We are proposing this AD to ensure proper functioning of the elevator surfaces, and to prevent cracking of the attachment lugs, which could result in partial loss of elevator function and consequent reduced controllability of the airplane. DATES: We must receive comments on this proposed AD by December 26, 2007. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal* : Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax* : 202-493-2251. • *Mail* : U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery* : U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Tim Backman, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2797; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0229; Directorate Identifier 2007-NM-042-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion On February 2, 2004, we issued AD 2004-03-24, amendment 39-13468 (69 FR 6549, February 11, 2004), for all Airbus Model A330-200, A330-300, A340-200, and A340-300 series airplanes. That AD requires a revision of the airplane flight manual to include procedures for a pre-flight elevator check before each flight, repetitive inspections for cracks of the attachment lugs of the mode selector valve position transducers on the elevator servo controls, and corrective actions if necessary. That AD resulted from a report of cracks of the transducer body at its attachment lugs. We issued that AD to ensure proper functioning of the elevator surfaces, and to detect and correct cracking of the attachment lugs, which could result in partial loss of elevator function and consequent reduced controllability of the airplane. Actions Since Existing AD Was Issued The preamble to AD 2004-03-24 explains that we consider the requirements “interim action” and were considering further rulemaking. We now have determined that further rulemaking is indeed necessary, and this proposed AD follows from that determination. Relevant Service Information The following service information has been issued: Service Information Service information Description Airbus Service Bulletin A330-27-3128, dated May 3, 2005 (for Model A330-200 and -300 series airplanes); and Airbus Service Bulletin A340-27-4129, dated May 3, 2005 (for Model A340-200 and -300 series airplanes) Inspection of the elevator servo control to determine whether part number (P/N) SC4800-7A or -9 is installed, and modification of the four elevator servo controls if necessary. Airbus Service Bulletin A340-27-4131, dated February 21, 2005 (for Model A340-200 and -300 series airplanes) Upgrade of flight control primary computers (FCPCs). Goodrich Actuation Systems Service Bulletin SC4800-27-16, Revision 3, dated May 19, 2006 Inspection of the elevator servo controls, P/N SC4800-10 and SC4800-11, to determine the serial number (S/N) installed, and replacement of the mode selector valve position transducer
(MVT)of the elevator servo controls with a new MVT if necessary. TRW Service Bulletin SC4800-27-34-09, Revision 1, dated November 9, 2001 Replacement of the eye-end equipped with a self-lubricated bearing with a new eye-end equipped with a roller bearing, greasing of the new eye-end, and reidentification of the servo control. These actions must be done prior to or concurrently with the actions specified in Goodrich Actuation Systems Service Bulletin SC4800-27-16. Airbus Service Bulletin A340-27-4131 refers to Airbus Vendor Service Bulletins LA2K0-27-017 and LA2K1-27-009, both dated January 25, 2005, as additional sources of service information for upgrading the FCPCs. Airbus Service Bulletins A330-27-3128 and A340-27-4129 refer to Goodrich Actuation Systems Service Bulletin SC4800-27-16, Revision 3, dated May 19, 2006, as an additional source of service information for accomplishing the modification of the four elevator servo controls. Accomplishing the actions specified in Airbus Service Bulletin A330-27-3128 or A340-27-4129, as applicable, Goodrich Actuation Systems Service Bulletin SC4800-27-16, and TRW Service Bulletin SC4800-27-34-09, if required, would cancel the requirements of AD 2004-03-24. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, mandated the service information and issued airworthiness directive 2007-0011, dated January 9, 2007, to ensure the continued airworthiness of these airplanes in the European Union. FAA's Determination and Requirements of the Proposed AD These airplanes are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. As described in FAA Order 8100.14A, “Interim Procedures for Working with the European Community on Airworthiness Certification and Continued Airworthiness,” dated August 12, 2005, the EASA has kept the FAA informed of the situation described above. We have examined the EASA's findings, evaluated all pertinent information, and determined that AD action is necessary for airplanes of this type design that are certificated for operation in the United States. This proposed AD would supersede AD 2004-03-24 and would retain the requirements of the existing AD. This proposed AD also would require accomplishing the actions specified in service information described previously. Accomplishing the actions specified in Airbus Service Bulletin A330-27-3128 or A340-27-4129, as applicable, Goodrich Actuation Systems Service Bulletin SC4800-27-16, and TRW Service Bulletin SC4800-27-34-09, if required, would constitute terminating action for the retained requirements of 2004-03-24. This proposed AD also would remove airplanes from the applicability of the existing AD. Changes to Existing AD This proposed AD would retain all requirements of AD 2004-03-24. Since AD 2004-03-24 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table: Revised Paragraph Identifiers Requirement in AD 2004-03-24 Corresponding requirement in this proposed AD Paragraph
(a)Paragraph (f). Paragraph
(b)Paragraph (g). Paragraph
(c)Paragraph (h). Paragraph
(d)Paragraph (i). Paragraph
(e)Paragraph (j). Paragraph
(f)Paragraph (k). AD 2004-03-24 affects all Airbus Model A330-200, A330-300, A340-200, and A340-300 series airplanes. The applicability of this proposed AD would exclude those airplanes on which a reinforced mode selector valve has been installed, which parallels the applicability of EASA airworthiness directive 2007-0011. Costs of Compliance The following table provides the estimated costs for U.S. operators of the affected Model A330-200 and A330-300 series airplanes to comply with this proposed AD. Estimated Costs Action Work hours Average labor rate per hour Cost per airplane Number of U.S.-registered airplanes Fleet cost AFM revision (required by AD 2004-03-24) 1 $80 $80 29 $2,320. Inspection (required by AD 2004-03-24) 4 $80 $320, per inspection cycle 29 $9,280, per inspection cycle. Inspection (new proposed action) 1 $80 $80 29 $2,320. Currently, there are no affected Model A340-200 and A340-300 series airplanes on the U.S. Register. However, if an affected airplane is imported and placed on the U.S. Register in the future, the proposed upgrade of the FCPCs would take about 2 work hours, at an average labor rate of $80 per work hour. The manufacturer states that it would supply required parts to the operators at no cost. Based on these figures, we estimate the cost of this proposed AD for Model A340-200 and A340-300 series airplanes to be $160 per airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by removing amendment 39-13468 (69 FR 6549, February 11, 2004) and adding the following new airworthiness directive (AD): **Airbus:** Docket No. FAA-2007-0229; Directorate Identifier 2007-NM-042-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by December 26, 2007. Affected ADs
(b)This AD supersedes AD 2004-03-24. Applicability
(c)This AD applies to the airplanes identified in Table 1 of this AD, certificated in any category. Table 1.—Applicability Airbus model— Excluding those airplanes on which any of the following— Has been installed— A330-200, A330-300, A340-200, and A340-300 series airplanes Airbus modification 50394, 52195, 53969, or 54833 In production. Airbus Service Bulletin A330-27-3128, dated May 3, 2005 In service. Airbus Service Bulletin A340-27-4129, dated May 3, 2005 In service. Airbus Service Bulletin A330-27-3136, Revision 01, dated July 19, 2006 In service. Airbus Service Bulletin A340-27-4135, dated January 12, 2006 In service. Goodrich Actuation Systems Service Bulletin SC4800-27-16, Revision 03, dated May 19, 2006 In service. Unsafe Condition
(d)This AD results from a report of cracks of the transducer body at its attachment lugs. We are issuing this AD to ensure proper functioning of the elevator surfaces, and to prevent cracking of the attachment lugs, which could result in partial loss of elevator function and consequent reduced controllability of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Requirements of AD 2004-03-24 Airplane Flight Manual
(AFM)Revision
(f)Within 30 days after February 26, 2004 (the effective date of AD 2004-03-24), revise the Limitations section of the AFM to include a pre-flight elevator check, by including the following language. This may be done by inserting a copy of this AD into the applicable AFM. Thereafter perform the pre-flight check before every flight in accordance with the procedure. Prior or During Taxi “FLIGHT CONTROLS—CHECK 1. AT A CONVENIENT STAGE, PRIOR TO OR DURING TAXI, AND BEFORE ARMING THE AUTOBRAKE, THE PF SILENTLY APPLIES FULL LONGITUDINAL AND LATERAL SIDESTICK DEFLECTION. ON THE F/CTL PAGE, THE PNF CHECKS FULL TRAVEL OF ALL ELEVATORS AND ALL AILERONS, AND THE CORRECT DEFLECTION AND RETRACTION OF ALL SPOILERS. THE PNF CALLS OUT “FULL UP,” “FULL DOWN,” “NEUTRAL,” “FULL LEFT,” “FULL RIGHT,” “NEUTRAL,” AS EACH FULL TRAVEL/NEUTRAL POSITION IS REACHED. THE PF SILENTLY CHECKS THAT THE PNF CALLS ARE IN ACCORDANCE WITH THE SIDESTICK ORDER. *NOTE:* IN ORDER TO REACH FULL TRAVEL, FULL SIDESTICK MUST BE HELD FOR A SUFFICIENT PERIOD OF TIME. 2. THE PF PRESSES THE PEDAL DISC PUSHBUTTON ON THE NOSEWHEEL TILLER, AND SILENTLY APPLIES FULL LEFT RUDDER, FULL RIGHT RUDDER, AND NEUTRAL. THE PNF CALLS OUT “FULL LEFT,” “FULL RIGHT,” “NEUTRAL,” AS EACH FULL TRAVEL/NEUTRAL POSITION IS REACHED. 3. THE PNF APPLIES FULL LONGITUDINAL AND LATERAL SIDESTICK DEFLECTION, AND SILENTLY CHECKS FULL TRAVEL AND CORRECT SENSE OF ALL ELEVATORS AND ALL AILERONS, AND CORRECT DEFLECTION AND RETRACTION OF ALL SPOILERS, ON THE ECAM F/CTL PAGE.” Note 1: Full and complete elevator travel (position commanded) can be verified on the ECAM Flight Control Page. A determination of “correct sense” should include verification that there is complete and full motion of the sidesticks without binding.
(g)If any pre-flight check required by paragraph
(f)of this AD reveals improper function of the elevator: Before further flight, perform the inspections required by paragraph
(h)of this AD. Inspections
(h)At the applicable time specified in paragraph (h)(1) or (h)(2) of this AD, except as required by paragraph
(g)of this AD: Perform a dye penetrant inspection of the attachment lugs of the mode selector valve position transducers on each elevator servo control installed at damping positions 3CS1 and 3CS2. Do the inspection in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-27A3115 or A340-27A4119, both Revision 02, both dated December 30, 2003, as applicable (in paragraphs
(h)through
(k)of this AD, referred to as “the service bulletin”). An inspection that is done before February 26, 2004, is acceptable for compliance with the initial inspection requirement of this paragraph, if the inspection is done in accordance with any of the following Airbus All Operators Telexes (AOTs): AOT A330-27A3115 or A340-27A4119, dated September 11, 2003, or Revision 01 of each AOT dated September 25, 2003; as applicable. Repeat the inspection thereafter at intervals not to exceed 350 flight cycles, until the applicable actions required by paragraphs
(m)and
(n)of this AD have been done.
(1)If the age of the servo control from the date of its first installation on the airplane can be positively determined: Do the inspection before the accumulation of 1,000 total flight cycles on the elevator servo control, or within 350 flight cycles on the servo control after February 26, 2004, whichever occurs later.
(2)If the age of the servo control from the date of its first installation on the airplane cannot be positively determined, do the inspection within 350 flight cycles on the servo control after February 26, 2004. Note 2: The service bulletin refers to Goodrich Actuation Systems Inspection Service Bulletin SC4800-27-13 as an additional source of service information for the inspection. Corrective Actions
(i)If any crack is found during any inspection required by paragraph
(h)of this AD: Before further flight, replace either the transducer or servo control with a new part, in accordance with the service bulletin. Reporting Requirement
(j)If any crack is found during any inspection required by paragraph
(h)of this AD: Submit a report in accordance with the service bulletin at the applicable time(s) specified in paragraphs (j)(1) and (j)(2) of this AD: Submit reports to Airbus Customer Services, Engineering and Technical Support, Attention: J. Laurent, SEE53, fax +33/(0)5.61.93.44.25, Sita Code TLSBQ7X. Under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements contained in this AD and has assigned OMB Control Number 2120-0056.
(1)For an initial inspection done before February 26, 2004: Submit the report within 30 days after February 26, 2004.
(2)For an inspection done after February 26, 2004: Submit the report within 30 days after the inspection. Parts Installation
(k)As of February 26, 2004, no person may install the following part on any airplane: A transducer, or a transducer fitted on an elevator servo control, in the operator's inventory before September 25, 2003, unless that transducer has been inspected in accordance with the service bulletin and is crack free. New Requirements of This AD Upgrade Flight Control Primary Computers (FCPCs)
(l)For Model A340-200 and -300 series airplanes: Within 2 months after the effective date of this AD, upgrade the three FCPCs in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-27-4131, dated February 21, 2005. Note 3: Airbus Service Bulletin A340-27-4131 refers to Airbus Vendor Service Bulletins LA2K0-27-017 and LA2K1-27-009, both dated January 25, 2005, as additional sources of service information for upgrading the FCPCs. Terminating Actions
(m)Within 17 months after the effective date of this AD, do the actions specified in Table 2 of this AD. Table 2.—Terminating Actions Inspect— In accordance with the accomplishment instructions of airbus service bulletin— And if— Then— In accordance with—
(1)The elevator servo control to determine whether part number (P/N) SC4800-7A or -9 is installed A330-27-3128, dated May 3, 2005 (for Model A330-200 and -300 series airplanes); or A340-27-4129, dated May 3, 2005 (for Model A340-200 and -300 series airplanes); as applicable P/N SC4800-7A or -9 is found installed Modify the four elevator servo controls The Accomplishment Instructions of the applicable Airbus service bulletin.
(2)The elevator servo controls, P/N SC4800-10 and SC4800-11 to determine the serial number (S/N) installed None S/N 2324 or below is found installed Replace the mode selector valve position transducer
(MVT)of the elevator servo controls with a new MVT Paragraphs 3.(2) and 3.B.(2) of the Accomplishment Instructions of Goodrich Actuation Systems Service Bulletin SC4800-27-16, Revision 3, dated May 19, 2006. Note 4: Airbus Service Bulletins A330-27-3128 and A340-27-4129 refer to Goodrich Actuation Systems Service Bulletin SC4800-27-16, Revision 3, dated May 19, 2006, as an additional source of service information for accomplishing the modification of the four elevator servo controls.
(n)Prior to or concurrently with the replacement, if required, specified in paragraph (m)(2) of this AD, replace the eye-end equipped with a self-lubricated bearing with a new eye-end equipped with a roller bearing, grease the new eye-end, and reidentify the servo control, in accordance with paragraph 2.A. of the Accomplishment Instructions of TRW Service Bulletin SC4800-27-34-09, Revision 1, dated November 9, 2001.
(o)Accomplishing all of the applicable actions required by paragraphs
(m)and
(n)of this AD constitutes terminating action for paragraphs
(f)through
(k)of this AD. Alternative Methods of Compliance (AMOCs) (p)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Related Information
(q)EASA airworthiness directive 2007-0011, dated January 9, 2007, also addresses the subject of this AD. Issued in Renton, Washington, on November 13, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-22921 Filed 11-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0226; Directorate Identifier 2007-NM-187-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 737-300, -400, and -500 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Boeing Model 737-300, -400, and -500 series airplanes. This proposed AD would require repetitive inspections for cracking of the body buttock line
(BBL)0.07 floor beam between body station
(BS)651 and BS 676 and between BS 698 and BS 717, and related investigative and corrective actions if necessary. This AD also provides an optional terminating action for the repetitive inspections. This proposed AD results from reports of cracking in the BBL 0.07 floor beam. We are proposing this AD to prevent failure of the main deck floor beams at certain body stations due to fatigue cracking, which could result in rapid decompression of the airplane. DATES: We must receive comments on this proposed AD by January 10, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6440; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0226; Directorate Identifier 2007-NM-187-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Other Related Rulemaking On July 12, 2001, we issued AD 2001-14-20, amendment 39-12331 (66 FR 38354, July 24, 2001), applicable to certain Boeing Model 737-100 and -200 series airplanes. AD 2001-14-20 requires repetitive inspections to find fatigue cracking in the main deck floor beams located at certain body stations, and repair if necessary. AD 2001-14-20 also provides for optional terminating action for the repetitive inspections. AD 2001-14-20 addresses fatigue cracking in the main deck floor beams on Model 737-100 and -200 series airplanes, while this proposed AD would address the same unsafe condition on Boeing Model 737-300, -400, and -500 series airplanes. Discussion Since we issued AD 2001-14-20, several operators have reported cracking in the body buttock line
(BBL)0.07 floor beam on Model 737-300, -400, and -500 series airplanes. The cracks were similar to those found on the Model 737-100 and -200 series airplanes, which are addressed by AD 2001-14-20. Investigation revealed that the cracks were caused by fatigue resulting from pressurization flexure. Failure of the main deck floor beam at certain body stations due to fatigue cracking could result in rapid decompression of the airplane. Relevant Service Information We have reviewed Boeing Service Bulletin 737-57-1210, Revision 2, dated June 13, 2007. For Model 737-300, -400, and -500 series airplanes, the service bulletin describes procedures for accomplishing repetitive detailed inspections for cracking of the BBL 0.07 floor beam between body station
(BS)651 and BS 676 and between BS 698 and BS 717, and doing related investigative and corrective actions if necessary. The related investigative action includes doing a high frequency eddy current
(HFEC)inspection of the fastener holes for cracking
(1)prior to modifying the floor beam, or
(2)if any cracking is found in the web (between BS 651 and BS 676 and between BS 698 and BS 717) or in the upper chord (between BS 651 and BS 676) during the detailed inspection. The corrective actions include the following: • Repairing any cracking in accordance with the service bulletin, if cracking is found in the web (between BS 651 and BS 676 and between BS 698 and BS 717) or in the upper chord (between BS 651 and BS 676) during the detailed inspection but no cracking is found during the HFEC inspection. Accomplishing the repair would eliminate the need for the repetitive inspections for the area in which the repair is installed. • Contacting Boeing for repair instructions,
(1)if cracking is found in the web (between BS 651 and BS 676 and between BS 698 and BS 717) or in the upper chord (between BS 651 and BS 676) during the HFEC inspections,
(2)if cracking is found in the chords or stiffeners (between BS 698 and BS 717) or outside the typical crack locations (between BS 651 and BS 676 and between BS 698 and BS 717) during the detailed inspection, or
(3)if cracking is found during the HFEC prior to modifying the floor beam. The service bulletin also provides procedures for modifying the floor beam, if no cracking is found during the detailed and HFEC inspections. Accomplishing the modification (optional terminating action) would eliminate the need for the repetitive inspections for the area in which the modification is installed. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and Service Bulletin.” Difference Between the Proposed AD and Service Bulletin The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways: • Using a method that we approve; or • Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings. Costs of Compliance There are about 1,961 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 599 airplanes of U.S. registry. The proposed inspections would take about 4 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $191,680, or $320 per airplane, per inspection cycle. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-0226; Directorate Identifier 2007-NM-187-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by January 10, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Boeing Model 737-300, -400, and -500 series airplanes, certificated in any category; as identified in Boeing Service Bulletin 737-57-1210, excluding Appendix A, Revision 2, dated June 13, 2007. Unsafe Condition
(d)This AD results from reports of cracking in the body buttock line
(BBL)0.07 floor beam. We are issuing this AD to prevent failure of the main deck floor beams at certain body stations due to fatigue cracking, which could result in rapid decompression of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Inspections and Related Investigative/Corrective Actions
(f)Before the accumulation of 20,000 total flight hours, or within 7,000 flight cycles after the effective date of this AD, whichever occurs later: Do the detailed inspections for cracking of the BBL 0.07 floor beam between body station
(BS)651 and BS 676 and between BS 698 and BS 717, and do all the applicable related investigative and corrective actions before further flight, by accomplishing all of the applicable actions specified in paragraphs B.2. and B.4. of the Accomplishment Instructions of Boeing Service Bulletin 737-57-1210, excluding Appendix A, Revision 2, dated June 13, 2007, except as provided by paragraph
(g)of this AD. Repeat the inspections thereafter at intervals not to exceed 7,000 flight cycles. Installing a repair in accordance with paragraphs B.2. and B.4. of the Accomplishment Instructions of the service bulletin, or doing the modification in accordance with paragraph
(h)of this AD, terminates the repetitive inspections for the applicable area only. Exception to Corrective Action
(g)If any cracking is found during any inspection required by this AD, and Boeing Service Bulletin 737-57-1210, excluding Appendix A, Revision 2, dated June 13, 2007, specifies to contact Boeing for appropriate action: Before further flight, repair the cracking using a method approved in accordance with the procedures specified in paragraph
(i)of this AD. Optional Terminating Action
(h)If no cracking is found during the detailed inspection and related investigative action required by paragraph
(f)of this AD: Accomplishing the modification of the BBL 0.07 floor beam between BS 651 and BS 676 and between BS 698 and BS 717, as applicable, in accordance with paragraphs B.2. and B.4., as applicable, of the Accomplishment Instructions of Boeing Service Bulletin 737-57-1210, excluding Appendix A, Revision 2, dated June 13, 2007, terminates the repetitive inspections for the applicable area only. Alternative Methods of Compliance (AMOCs) (i)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(3)An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD. Issued in Renton, Washington, on November 13, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-22923 Filed 11-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0225; Directorate Identifier 2007-NM-210-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 757 Airplanes Equipped with Rolls Royce RB211-535E Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Boeing Model 757 airplanes equipped with Rolls Royce RB211-535E engines. This proposed AD would require repetitive inspections for signs of damage of the aft hinge fittings and attachment bolts of the thrust reversers, and related investigative and corrective actions if necessary. This proposed AD results from reports of several incidents of bolt failure at the aft hinge fittings of the thrust reversers due to, among other things, high operational loads. We are proposing this AD to prevent failure of the attachment bolts and consequent separation of a thrust reverser from the airplane during flight, which could result in structural damage to the airplane. DATES: We must receive comments on this proposed AD by January 10, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Jason Deutschman, Aerospace Engineer, Airframe Branch, ANM-120S, Seattle Aircraft Certification Office, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6449; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0225; Directorate Identifier 2007-NM-210-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We have received reports indicating that several incidents of bolt failure at the aft hinge fittings of the thrust reversers have occurred on certain Boeing Model 757 airplanes equipped with Rolls Royce RB211-535E engines. Of these incidents, there were nine hinges with failure of one out of four bolts, two hinges with failure of two out of four bolts, and three hinges with failure of three out of four bolts. The possible causes of the bolt failures can be high operational loads, contact loads caused by possible interference between the thrust reverser hinge and the hinge beam, or installation of the four attachment bolts with washers that could rub against the radius of the hinge fitting spotface. The hinge has integral fail safe features, but loss of the entire four-bolt pattern constitutes complete loss of the load path. Failure of the attachment bolts could result in separation of a thrust reverser from the airplane during flight and consequent structural damage to the airplane. Relevant Service Information We have reviewed Boeing Special Attention Service Bulletins 757-54-0049 and 757-54-0050, both dated July 16, 2007. The service information describes procedures for doing a detailed inspection of the aft hinge fittings and the eight attachment bolts of the thrust reversers for signs of damage (includes, but is not limited to, cracked or broken hinge fittings or contact damage to the base metal), and related investigative and corrective actions if necessary. The compliance time for the initial inspection is within 3,000 flight cycles after the date on the service bulletin. The related investigative and corrective actions for the number 1 and number 2 engines include the following: • For airplanes on which any aft hinge fitting is cracked or broken: Accomplish the preventive modification specified in Part III of the Accomplishment Instructions and install a new fitting. • For airplanes on which any contact damage to the base metal is found that is less than .005 inch deep: Accomplish the preventive modification specified in Part III of the Accomplishment Instructions before further flight; or reapply the surface finish as specified in Part II of the Accomplishment Instructions (standard operating procedures manual 20-60-02), and accomplish the preventive modification within 3,000 flight cycles after the surface finish is applied. • For airplanes on which any contact damage to the base metal is found that is equal to or more than .005 inches deep: Accomplish the preventive modification as specified in Part III of the Accomplishment Instructions. • For airplanes on which any damage is found that is outside the limits specified in the service information, the service bulletins recommend contacting Boeing for repair instructions. • For airplanes on which any attachment bolt is damaged: Accomplish the preventive modification specified in Part III of the Accomplishment Instructions, or remove the damaged bolt and accomplish a high frequency eddy current inspection of the bolt hole for cracking. If no crack is found in the bolt hole, replace the bolt with a new or serviceable bolt before further flight and accomplish the preventive modification within 3,000 flight cycles after the bolt is replaced. If any crack is found, accomplish the preventive modification. For airplanes on which no attachment bolt is found damaged, repeat the detailed inspection at intervals not to exceed 3,000 flight cycles. Accomplishing the preventive modification at any time would eliminate the need for the repetitive inspections. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. Concurrent Service Information Service Bulletin 757-54-0049 recommends prior or concurrent accomplishment of Boeing Service Bulletin 757-54-0015, Revision 3, dated September 19, 1996. Service Bulletin 757-54-0015 describes procedures for replacing a certain older hinge fitting and attachment on airplanes after line number 241. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the AD and the Service Information.” Difference Between the AD and the Service Information Although Boeing Special Attention Service Bulletins 757-54-0049 and 757-54-0050 specify that you may contact the manufacturer for repair instructions, this proposed AD requires you to repair in one of the following ways: • Using a method that we approve; or • Using data that meet the certification basis of the airplane that have been approved by an Authorized Representative for the Boeing Delegation Option Authorization Organization who has been authorized by the FAA to make those findings. Costs of Compliance There are about 606 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 295 airplanes of U.S. registry. The proposed inspections would take about 2 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $47,200, or $160 per airplane, per inspection cycle. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-0225; Directorate Identifier 2007-NM-210-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by January 10, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Boeing Model 757-200, -200CB, -200PF, and -300 series airplanes, certificated in any category; equipped with Rolls Royce RB211-535E engines. Unsafe Condition
(d)This AD results from reports of several incidents of bolt failure at the aft hinge fittings of the thrust reversers due to, among other things, high operational loads. We are issuing this AD to prevent failure of the attachment bolts and consequent separation of a thrust reverser from the airplane during flight, which could result in structural damage to the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Repetitive Inspections/Investigative and Corrective Actions
(f)At the time specified in paragraph 1.E. “Compliance” of Boeing Special Attention Service Bulletins 757-54-0049 or 757-54-0050, both dated July 16, 2007, as applicable, except as provided by paragraph
(g)of this AD: Do a detailed inspection for signs of damage of the aft hinge fittings and attachment bolts of the thrust reversers by doing all the actions, including all applicable related investigative and corrective actions, as specified in the Accomplishment Instructions of the applicable service bulletin. Do all applicable related investigative and corrective actions at the time specified in paragraph 1.E., “Compliance” of the applicable service bulletin. If any damage is found and the service bulletins specify to contact Boeing for appropriate action: Before further flight, repair using a method approved in accordance with the procedures specified in paragraph
(j)of this AD.
(g)Where Boeing Special Attention Service Bulletins 757-54-0049 and 757-54-0050, both dated July 16, 2007, specify compliance times relative to the date on the service bulletin, this AD requires compliance within the specified compliance time after the effective date of this AD. Concurrent Service Information
(h)Prior to or concurrently with accomplishing the actions specified in Boeing Special Attention Service Bulletin 757-54-0049, dated July 16, 2007, accomplish the replacement specified in Boeing Service Bulletin 757-54-0015, Revision 3, dated September 19, 1996.
(i)Actions accomplished before the effective date of this AD in accordance with Boeing Service Bulletin 757-54-0015, dated February 16, 1989; Revision 1, dated December 20, 1990; or Revision 2, dated April 21, 1994; are considered acceptable for compliance with the corresponding actions specified in paragraph
(h)of this AD. Alternative Methods of Compliance (AMOCs) (j)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(3)An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane. Issued in Renton, Washington, on November 13, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-22924 Filed 11-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0230; Directorate Identifier 2007-NM-043-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Model A330-200, A330-300, A340-200, and A340-300 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive
(AD)that applies to all Airbus Model A330-200, A330-300, A340-200, and A340-300 series airplanes. The existing AD currently requires an accelerated schedule of repetitive testing of the elevator servo control loops, and corrective actions if necessary. This proposed AD would retain the existing requirements, reduce the applicability of the existing AD, and add terminating actions. This proposed AD results from reports of failed elevator servo controls due to broken guides. We are proposing this AD to prevent failure of the elevator servo controls during certain phases of takeoff, which could result in an unannounced loss of elevator control and consequent reduced controllability of the airplane. DATES: We must receive comments on this proposed AD by December 26, 2007. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Tim Backman, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2797; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0230; Directorate Identifier 2007-NM-043-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion On October 31, 2005, we issued AD 2005-23-10, amendment 39-14368 (70 FR 69065, November 14, 2005), for all Airbus Model A330-200, A330-300, A340-200, and A340-300 series airplanes. That AD requires an accelerated schedule of repetitive testing of the elevator servo control loops, and corrective actions if necessary. That AD resulted from reports of failed elevator servo controls due to broken guides. We issued that AD to ensure proper functioning of the elevator servo controls. Failure of the elevator servo controls during certain phases of takeoff could result in an unannounced loss of elevator control and consequent reduced controllability of the airplane. Actions Since Existing AD Was Issued The preamble to AD 2005-23-10 explains that we consider the requirements “interim action” and were considering further rulemaking. We now have determined that further rulemaking is indeed necessary, and this proposed AD follows from that determination. Relevant Service Information Airbus has issued Revision 02 of Airbus Service Bulletins A330-27-3138 (for Model A330-200 and -300 series airplanes) and A340-27-4137 (for Model A340-200 and -300 series airplanes); both dated May 30, 2006. These service bulletins supersede, respectively, Revision 01 of Airbus All Operator Telexes
(AOT)A330-27A3138 and A340-27A4137, both dated October 3, 2005. The AOTs are referenced in AD 2005-23-10 as the appropriate source of service information for accomplishing the required testing of the elevator servo control loops, and corrective actions if necessary. The procedures specified in Revision 02 of the service bulletins are identical to those in Revision 01 of the AOTs. No additional work is necessary for airplanes on which the actions specified in Revision 01 of the applicable AOT have been done. Airbus also has issued the following service bulletins: Service Bulletins Airbus service bulletins— Describe procedures for— And refer to— A330-27-3136, Revision 01, dated July 19, 2006 (for Model A330-200 and -300 series airplanes); and A340-27-4135, dated January 12, 2006 (for Model A340-200 and -300 series airplanes) Modification of four elevator servo controls by installing a new plug-guide assembly Goodrich Actuation Systems Service Bulletin SC4800-27-18, Revision 1, dated May 19, 2006, as an additional source of service information for accomplishing the modification. A330-27-3134, Revision 01, dated May 12, 2006 (for Model A330-200 and -300 series airplanes); and A340-27-4132, dated October 13, 2005 (for Model A340-200 and -300 series airplanes) Modification of four elevator servo controls by replacing the o-ring of the solenoid valves with a new o-ring Goodrich Actuation Systems Service Bulletin SC4800-27-17, Revision 2, dated May 19, 2006, as an additional source of service information for accomplishing the modification. Accomplishing the modification specified in the service bulletins eliminates the need for the repetitive inspection requirements of AD 2005-23-10 and is intended to adequately address the unsafe condition. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, mandated the service information and issued airworthiness directive 2007-0008, dated January 9, 2007, to ensure the continued airworthiness of these airplanes in the European Union. FAA's Determination and Requirements of the Proposed AD These airplanes are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. As described in FAA Order 8100.14A, “Interim Procedures for Working with the European Community on Airworthiness Certification and Continued Airworthiness,” dated August 12, 2005, the EASA has kept the FAA informed of the situation described above. We have examined the EASA's findings, evaluated all pertinent information, and determined that AD action is necessary for airplanes of this type design that are certificated for operation in the United States. This proposed AD would supersede AD 2005-23-10 and would retain the requirements of the existing AD. This proposed AD also would require accomplishing the actions specified in service information described previously. Accomplishing the modification specified in the service bulletins described previously eliminates the need for the retained requirements of 2005-23-10. This proposed AD also would remove airplanes from the applicability of the existing AD. Costs of Compliance The following table provides the estimated costs for U.S. operators of the affected Model A330-200 and A330-300 series airplanes to comply with this proposed AD. Estimated Costs Action Work hour(s) Average labor rate per hour Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Inspection (required by AD 2005-23-10) 1 $80 None $80, per inspection cycle 18 $1,440, per inspection cycle. Modifications (new proposed actions) 28 $80 The manufacturer states that it will supply required parts to the operators at no cost $2,240 18 $40,320. Currently, there are no affected Model A340-200 and A340-300 series airplanes on the U.S. Register. However, if an affected airplane is imported and placed on the U.S. Register in the future, the proposed modification would take about 10 work hours, at an average labor rate of $80 per work hour. The manufacturer states that it would supply required parts to the operators at no cost. Based on these figures, we estimate the cost of this proposed AD for Model A340-200 and A340-300 series airplanes to be $800 per airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by removing amendment 39-14368 (70 FR 69065, November 14, 2005) and adding the following new airworthiness directive (AD): **Airbus:** Docket No. FAA-2007-0230; Directorate Identifier 2007-NM-043-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by December 26, 2007. Affected ADs
(b)This AD supersedes AD 2005-23-10. Applicability
(c)This AD applies to the airplanes identified in Table 1 of this AD, certificated in any category. Table 1.—Applicability Airbus model— Excluding those airplanes on which any of the following— Has been installed— A330-200, A330-300, A340-200, and A340-300 series airplanes Airbus modification 54833 In production. Airbus Service Bulletin A330-27-3136, Revision 01, dated July 19, 2006 In service. Airbus Service Bulletin A340-27-4135, dated January 12, 2006 In service. Unsafe Condition
(d)This AD results from reports of failed elevator servo controls due to broken guides. We are proposing this AD to prevent failure of the elevator servo controls during certain phases of takeoff, which could result in an unannounced loss of elevator control and consequent reduced controllability of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Requirements of AD 2005-23-10 Service Information
(f)The term “AOT,” as used in paragraphs
(g)through
(i)of this AD, means section 4.2. “Description” of the following service information, as applicable:
(1)For Model A330-200 and -300 series airplanes: Airbus All Operators Telex A330-27A3138, Revision 01, dated October 3, 2005; and
(2)For Model A340-200 and -300 series airplanes: Airbus All Operators Telex A340-27A4137, Revision 01, dated October 3, 2005. Initial and Repetitive Elevator Servo-Loop Tests
(g)Within 200 flight hours after November 29, 2005 (the effective date of AD 2005-23-10): Test the elevator servo-loops, in accordance with the AOT, except as provided by paragraph
(j)of this AD. If the test of the elevator servo-loops passes, repeat the test at intervals not to exceed 140 flight hours or 8 days, whichever occurs first. Failed Tests
(h)If any test of the elevator servo-loops required by paragraph
(g)of this AD fails: Before further flight, troubleshoot the cause of the test failure, and do the applicable corrective actions; in accordance with the AOT, except as provided by paragraph
(j)of this AD. Thereafter, repeat the test at the times specified in paragraph
(g)of this AD. Reporting Requirement
(i)Following each test required by paragraph
(g)of this AD, submit a report of the findings of only failed elevator servo-loop tests to Airbus Customer Services, Engineering and Technical Support, Attention: Mr. J. Laurent, SEE53, fax +33/(0)5.61.93.44.25; at the applicable time specified in paragraph (i)(1) or (i)(2) of this AD. The report must include the description of the failure experienced during the test, the identified cause of the failure, and the number of flight hours and flight cycles on the airplane. Under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements contained in this AD and has assigned OMB Control Number 2120-0056.
(1)If the test was done after November 29, 2005: Submit the report within 10 days after the test.
(2)If the test was done prior to November 29, 2005: Submit the report within 10 days after November 29, 2005. New Requirements of This AD New Service Information for Testing
(j)As of the effective date of this AD, do the actions required by paragraphs
(g)and
(h)of this AD in accordance with the Accomplishment Instructions of the following service bulletins, as applicable.
(1)For Model A330-200 and -300 series airplanes: Airbus Service Bulletin A330-27-3138, Revision 02, dated May 30, 2006; and
(2)For Model A340-200 and -300 series airplanes: Airbus Service Bulletin A340-27-4137, Revision 02, dated May 30, 2006. Terminating Actions
(k)Within 17 months after the effective date of this AD, modify the four elevator servo controls in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-27-3136, Revision 01, dated July 19, 2006 (for Model A330-200 and -300 series airplanes); or Airbus Service Bulletin A340-27-4135, dated January 12, 2006 (for Model A340-200 and -300 series airplanes); as applicable. Note 1: Airbus Service Bulletins A330-27-3136 and A340-27-4135 refer to Goodrich Actuation Systems Service Bulletin SC4800-27-18, Revision 1, dated May 19, 2006, as an additional source of service information for accomplishing the modification required by paragraph
(k)of this AD.
(l)Modifications done before the effective date of this AD in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-27-3136, dated January 12, 2006, are acceptable for compliance with the modification required by paragraph
(k)of this AD.
(m)Concurrently with the modification required by paragraph
(k)of this AD, modify the four elevator servo controls in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-27-3134, Revision 01, dated May 12, 2006 (for Model A330-200 and -300 series airplanes); or Airbus Service Bulletin A340-27-4132, dated October 13, 2005 (for Model A340-200 and -300 series airplanes); as applicable. Note 2: Airbus Service Bulletins A330-27-3134 and A340-27-4132 refer to Goodrich Actuation Systems Service Bulletin SC4800-27-17, Revision 2, dated May 19, 2006, as an additional source of service information for accomplishing the modification required by paragraph
(m)of this AD.
(n)Modifications done before the effective date of this AD in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-27-3134, dated October 13, 2005, are acceptable for compliance with the modification required by paragraph
(m)of this AD.
(o)Accomplishment of the modifications required by paragraphs
(k)and
(m)of this AD constitutes terminating action for the requirements of paragraphs
(f)through
(i)of this AD. Parts Installation
(p)As of the effective date of this AD, no person may install, on any airplane, an elevator servo control, unless it has been modified in accordance with paragraphs
(k)and
(m)of this AD. Alternative Methods of Compliance (AMOCs) (q)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Related Information
(r)EASA airworthiness directive 2007-0008, dated January 9, 2007, also addresses the subject of this AD. Issued in Renton, Washington, on November 13, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-22925 Filed 11-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0228; Directorate Identifier 2007-NM-107-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 737-200 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Boeing Model 737-200 series airplanes. This proposed AD would require repetitive inspections to detect cracking of the support fittings of the Krueger flap actuators, and corrective actions if necessary. This proposed AD also would require eventual replacement of any existing aluminum support fitting on each wing with a steel fitting, and modification of the aft attachment of the actuator. Doing these actions would terminate the repetitive inspection requirements. This proposed AD results from reports of cracking due to fatigue and stress corrosion of the support fittings of the Krueger flap actuator. We are proposing this AD to prevent cracking of the support fittings, which could result in fracturing of the actuator attach lugs, separation of the actuator from the support fitting, severing of the hydraulic lines, resultant loss of hydraulic fluids, and consequent reduced controllability of the airplane. DATES: We must receive comments on this proposed AD by January 10, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6440; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0228; Directorate Identifier 2007-NM-107-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We have received reports of cracks in the support fitting of the Krueger flap actuator mounted on the front spar of eight affected airplanes. On one airplane, the lugs on the No. 1 Krueger flap actuator support fitting severed completely, the actuator separated from the front spar, and the hydraulic lines were severed. On another airplane, both actuator attach lugs of a No. 1 flap support fitting were also completely severed. The cracking is attributed to fatigue and stress corrosion, and it is suspected that high clamp-up stresses may be contributing to cracks in the actuator attach lugs. Cracking of the support fittings, if not corrected, could result in fracturing of the actuator attach lugs, separation of the actuator from the support fitting, severing of the hydraulic lines, resultant loss of hydraulic fluids, and consequent reduced controllability of the airplane. Other Relevant Rulemaking On July 31, 2000, we issued AD 2000-15-18, amendment 39-11851 (65 FR 48371, August 8, 2000). That AD applies to certain Boeing Model 737-100 and -200 series airplanes, line numbers 001 through 813 inclusive. That AD requires inspections to detect cracking of the support fittings of the Krueger flap actuator; and, if necessary, replacement of existing fittings with new steel fittings and modification of the aft attachment of the actuator. That AD also requires eventual replacement of any existing aluminum Krueger flap actuator support fitting on each wing with a steel fitting, which terminates the repetitive inspection requirements. That AD resulted from reports of cracking due to fatigue and stress corrosion of the support fittings of the Krueger flap actuator. The actions in that AD are intended to prevent such cracking, which could result in fracturing of the actuator attach lugs, separation of the actuator from the support fitting, severing of the hydraulic lines, and resultant loss of hydraulic fluids. These conditions, if not corrected, could result in possible failure of one or more hydraulic systems, and consequent reduced controllability of the airplane. Since we issued AD 2000-15-18, we have determined that the same unsafe condition addressed in that AD exists on certain additional Model 737-200 series airplanes. We were advised that Model 737-200 series airplanes, line numbers 814 through 826 inclusive, are also subject to the same unsafe condition addressed in AD 2000-15-18. Relevant Service Information We have reviewed Boeing Special Attention Service Bulletin 737-57-1129, Revision 3, dated March 19, 2007. The service bulletin describes procedures for repetitive high frequency eddy current
(HFEC)inspections to detect cracking of the support fittings of the Krueger flap actuators, and corrective actions if necessary. The corrective actions are replacement of existing fittings with new steel fittings and modification of the aft attachment of the actuator. This replacement and modification eliminates the need for the repetitive inspection requirements. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously. Costs of Compliance There are about 13 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. Estimated Costs Action Work hours Average labor rate per hour Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Inspection 5 $80 $0 $400, per inspection cycle 3 $1,200, per inspection cycle. Replacement 88 $80 $29,642 $36,682 3 $110,046. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-0228; Directorate Identifier 2007-NM-107-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by January 10, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Boeing Model 737-200 series airplanes, line numbers 814 through 826 inclusive, certificated in any category. Unsafe Condition
(d)This AD results from reports of cracking due to fatigue and stress corrosion of the support fittings of the Krueger flap actuator. We are issuing this AD to prevent cracking of the support fittings, which could result in fracturing of the actuator attach lugs, separation of the actuator from the support fitting, severing of the hydraulic lines, resultant loss of hydraulic fluids, and consequent reduced controllability of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Repetitive Inspections
(f)Within 12 months after the effective date of this AD, do a high frequency eddy current
(HFEC)inspection to detect cracking of the support fittings of the Krueger flap actuator on each wing, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-57-1129, Revision 3, dated March 19, 2007.
(1)If no cracking is detected, repeat the inspection thereafter at intervals not to exceed 3,000 flight hours until the terminating action required by paragraph
(g)of this AD is accomplished.
(2)If any cracking is detected, before further flight, do the replacement and modification specified in paragraph
(g)of this AD. Terminating Action
(g)Within 60 months after the effective date of this AD: Replace any existing Krueger flap actuator aluminum support fitting on each wing with a steel fitting, and modify the actuator aft attachment, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-57-1129, Revision 3, dated March 19, 2007. Doing this replacement and modification terminates the repetitive inspection requirements of paragraph
(f)of this AD. Parts Replacement
(h)As of the effective date of this AD, no person may install on any airplane any aluminum support fitting (actuator support assembly) identified in the “Existing Part Number” column of paragraph 2.C. of Boeing Special Attention Service Bulletin 737-57-1129, Revision 3, dated March 19, 2007. Actions Accomplished in Accordance With Previous Revisions of Service Bulletin
(i)Actions done before the effective date of this AD in accordance with the service bulletins listed in Table 1 of this AD, are acceptable for compliance with the corresponding requirements of this AD. Table 1.—Previous Revisions of Service Bulletins Boeing service bulletin Revision level Date 737-57-1129 1 October 30, 1981. 737-57-1129 2 May 28, 1998. Alternative Methods of Compliance (AMOCs) (j)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(3)An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD. Issued in Renton, Washington, on November 13, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-22926 Filed 11-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0224; Directorate Identifier 2007-NM-188-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 737-100, -200, -300, -400, and -500 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Boeing Model 737-100, -200, -300, -400, and -500 series airplanes. This proposed AD would require repetitive inspections for fatigue cracking in the longitudinal floor beam web, upper chord, and lower chord located at certain body stations, and repair if necessary. This proposed AD results from several reports of cracks in the center wing box longitudinal floor beams, upper chord, and lower chord. We are proposing this AD to detect and correct fatigue cracking of the upper and lower chords and web of the longitudinal floor beams, which could result in rapid loss of cabin pressure. DATES: We must receive comments on this proposed AD by January 10, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6440; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0224; Directorate Identifier 2007-NM-188-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We have received several reports of fatigue cracks in the center wing box longitudinal floor beams on certain Boeing Model 737-100, -200, -300, -400, and -500 series airplanes. The cracks were found in the longitudinal floor beam web, upper chord, and lower chord at left buttock line
(LBL)24.8, right buttock line
(RBL)24.8, LBL 45.5 and RBL 45.5, between Station
(STA)656 and STA 727B. The airplanes had accumulated between 17,000 and 70,000 total flight cycles. These fatigue cracks are attributed to cyclic pressurization loads, fuel loads, and passenger loads. Fatigue cracking of the upper and lower chords and web of the longitudinal floor beams, if not corrected, could result in rapid loss of cabin pressure. Related Rulemaking On December 30, 1998, we issued AD 98-11-04 R1, amendment 39-10984 (64 FR 987) applicable to Boeing Model 737-100 and -200 series airplanes. That AD requires revising the FAA-approved maintenance program to include inspections that will give no less than the required damage tolerance rating for each structural significant item
(SSI)if they are not effective for the SSI, and repair of cracked structure. Certain actions in this proposed AD are considered alternative methods of compliance (AMOCs) for paragraphs
(b)and
(c)of AD 98-11-04 R1. Relevant Service Information We have reviewed Boeing Service Bulletin 737-57-1296, dated June 13, 2007. The service bulletin describes procedures for the following: • Detailed inspections for any crack in the upper chord of the longitudinal floor beam at LBL 24.8 and RBL 24.8, between STA 656 and STA 685. • High frequency eddy current inspections for any crack in the lower chord of the longitudinal floor beam at LBL 24.8 and RBL 24.8, between STA 660 and STA 666. • Detailed inspections for any crack in the longitudinal floor beam web at LBL 24.8, RBL 24.8, LBL 45.5, and RBL 45.5, between STA 705 and STA 715. • Detailed inspections for any crack in the horizontal flange of the upper chord of the longitudinal floor beam at LBL 24.8, RBL 24.8, LBL 45.5, and RBL 45.5, at STA 727B. The compliance times specified are as follows: For Groups 1 and 2 airplanes: Before the accumulation of 20,000 total flight cycles, or within 6,000 flight cycles after the service bulletin date, whichever occurs later. Repeat the inspections thereafter at intervals not to exceed 6,000 flight cycles. For Group 3 airplanes: Before the accumulation of 20,000 total flight cycles, or within 7,000 flight cycles after the service bulletin date, whichever occurs later. Repeat the inspections thereafter at intervals not to exceed 7,000 flight cycles. If a crack is found, the service bulletin recommends contacting Boeing before further flight for repair instructions. If no crack is found, the procedures in the service bulletin specify repeating the inspections. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and Service Information.” Difference Between the Proposed AD and Service Information The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways: • Using a method that we approve; or • Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings. Costs of Compliance There are about 2,852 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 652 airplanes of U.S. registry. The proposed inspection would take approximately 13 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed inspection for U.S. operators is $678,080, or $1,040 per airplane, per inspection cycle. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-0224; Directorate Identifier 2007-NM-188-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by January 10, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Boeing Model 737-100, -200, -300, -400, and -500 series airplanes, certificated in any category; as identified in Boeing Service Bulletin 737-57-1296, dated June 13, 2007. Unsafe Condition
(d)This AD results from several reports of cracks in the center wing box longitudinal floor beams, upper chord, and lower chord. We are issuing this AD to detect and correct fatigue cracking of the upper and lower chords and web of the longitudinal floor beams, which could result in rapid loss of cabin pressure. 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. Repetitive Inspections
(f)Do the various inspections for fatigue cracks in the longitudinal floor beam web, upper chord, and lower chord, located at the applicable body stations specified in the Accomplishment Instructions of Boeing Service Bulletin 737-57-1296, dated June 13, 2007, by doing all the actions specified in the Accomplishment Instructions of the service bulletin, except as provided by paragraph
(g)of this AD. Do the inspections at the time specified in paragraph (f)(1) or (f)(2) of this AD, as applicable.
(1)For Groups 1 and 2 airplanes as identified in the service bulletin: Do the inspections at the applicable initial compliance time listed in paragraph 1.E., “Compliance,” of the service bulletin; except, where the service bulletin specifies a compliance time after the date on the service bulletin, this AD requires compliance within the specified compliance time after the effective date of this AD. Repeat the inspections thereafter at the intervals specified in paragraph 1.E., “Compliance,” of the service bulletin.
(2)For Group 3 airplanes as identified in the service bulletin: Do the inspections at the applicable initial compliance time listed in paragraph 1.E., “Compliance,” of the service bulletin; except, where the service bulletin specifies a compliance time after the date on the service bulletin, this AD requires compliance within the specified compliance time after the effective date of this AD. Repeat the inspections thereafter at the intervals specified in paragraph 1.E., “Compliance,” of the service bulletin.
(g)If any crack is found during any inspection required by this AD, and Boeing Service Bulletin 737-57-1296, dated June 13, 2007, specifies contacting Boeing for repair instructions: Before further flight, repair using a method approved in accordance with the procedures specified in paragraph
(h)of this AD. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Seattle ACO, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(3)An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane. Issued in Renton, Washington, on November 13, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-22928 Filed 11-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0227; Directorate Identifier 2007-NM-159-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 727 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for all Boeing Model 727 airplanes. This proposed AD would require repetitive inspections for cracking or corrosion of the threaded end of the lower segment of the main landing gear
(MLG)side strut, and corrective actions if necessary. This proposed AD also would require prior or concurrent inspection for cracking or corrosion of the threads and thread relief area of the lower segment, corrective action if necessary, and re-assembly using corrosion inhibiting compound. This proposed AD results from reports of the threads cracking on the MLG side strut lower segment. We are proposing this AD to prevent a fractured side strut, which could result in collapse of the MLG. DATES: We must receive comments on this proposed AD by January 10, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal* : Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax* : 202-493-2251. • *Mail* : U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery* : U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6577; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0227; Directorate Identifier 2007-NM-159-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We have received many reports of the threads cracking on the main landing gear
(MLG)side strut lower segment, on Boeing Model 727 airplanes. In one instance an operator reported hearing a loud noise during taxiing after landing. The subsequent inspection revealed the MLG side strut was broken at the threaded end of the lower segment, causing the side strut to become detached from the shock strut. This condition, if not corrected, could result in collapse of the MLG. Relevant Service Information We have reviewed Boeing Special Attention Service Bulletin 727-32-0338, Revision 4, dated April 7, 2007. The service bulletin describes procedures for repetitive detailed and magnetic particle inspections for cracking or corrosion of the threaded end of the lower segment of the MLG side strut. The service bulletin also describes procedures for corrective actions for corrosion or cracking. The corrective actions include replacing the part with a serviceable part, repairing the part as given in the Boeing Model 727 Overhaul Manual
(OHM)32-13-01, and doing a modification of the lower segment. There are five configurations for modification: • Option I Configuration—Blending out cracks and doing thread root radiusing. This modification applies only to airplanes with maximum taxi gross weight of 191,000 pounds and below. • Option II Configuration—Installing a new retainer nut, locknut, lock washer, and seals. This modification applies only to airplanes on which the segment is crack-free. • Option III Configuration—Removing 0.8-inch of the lower end of the lower segment, inserting a spacer, and replacing the retainer nut, locknut, lock washer, and seals. • Option IV Configuration—Similar to Option III, but also removing additional lubrication on the retainer nut; and applying corrosion inhibiting compound, rather than grease, to the threads at re-assembly. • Option V Configuration—Replacing the side strut lower segment with a larger-diameter spare (not production) part that has fatigue improvement on the threads. Boeing Special Attention Service Bulletin 727-32-0338, Revision 4, also recommends the prior or concurrent accomplishment of the actions specified in the table titled “Prior/Concurrent Service Bulletins.” The prior/concurrent service bulletins facilitate the overhaul and repair procedures specified in Boeing Special Attention Service Bulletin 727-32-0338, Revision 4. Prior/Concurrent Service Bulletins For— Boeing 727 service bulletin— Describes procedures for these prior or concurrent actions— All airplanes 727-32-0411, Revision 1, dated February 19, 2007 Inspecting for corrosion or cracking of the threads and thread relief area of the swivel clevis, and improving the corrosion protection of the swivel clevis fitting threads in commonly affected airplanes. Airplanes specified as Options III, IV and V configurations in Boeing Special Attention Service Bulletin 727-32-0338, Revision 4 32-79, Revision 1, dated February 27, 1967 Modifying the MLG side strut universal joint. 32-157, dated August 30, 1968 Replacing the MLG side strut swivel bushing, incorporating only Parts Kit 65-89855-1, and not installing the lube fitting in the lower segment. Airplanes specified as Option V configuration in Boeing Special Attention Service Bulletin 727-32-0338, Revision 4 727-32-268, Revision 2, dated February 20, 1981 Inspecting and modifying the MLG side strut. 727-57-163, dated September 17, 1982 Resolving the interference between the MLG gear beam and the MLG side strut. Boeing Special Attention Service Bulletin 727-32-0338, Revision 4, specifies that where any assembly, lubrication, or corrosion protection procedure in a prior/concurrent service bulletin differs from those in Boeing Special Attention Service Bulletin 727-32-0338, Revision 4, operators should use the procedures in Boeing Special Attention Service Bulletin 727-32-0338, Revision 4. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously. Costs of Compliance There are about 842 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 459 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The average labor rate is $80 per work hour. Estimated Costs Action Work hours Average labor rate per hour Cost per airplane Fleet cost Inspection 12 $80 $960, per inspection cycle $440,640, per inspection cycle. Prior/concurrent actions Up to 6 $80 Up to $480 Up to $220,320. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR Part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-0227; Directorate Identifier 2007-NM-159-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by January 10, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to all Model 727, 727C, 727-100, 727-100C, 727-200, and 727-200F series airplanes, certificated in any category. Unsafe Condition
(d)This AD results from reports of the threads cracking on the main landing gear
(MLG)side strut lower segment. We are issuing this AD to prevent a fractured side strut, which could result in collapse of the MLG. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Inspections and Corrective Actions
(f)At the latest applicable time in paragraph (f)(1), (f)(2), or (f)(3) of this AD: Do detailed and magnetic particle inspections for cracking or corrosion of the threaded end of the lower segment of the MLG side strut and do all applicable corrective actions as specified in the Accomplishment Instructions of Boeing Special Attention Service Bulletin 727-32-0338, Revision 4, dated April 7, 2007. Do all applicable corrective actions before further flight. Repeat the inspection thereafter at intervals not to exceed 120 months.
(1)Within 48 months after the last MLG overhaul.
(2)Within 6 months after the effective date of this AD.
(3)Within 120 months after the last MLG overhaul for airplanes on which the actions in Boeing Special Attention Service Bulletin 727-32-0338, Revision 4, dated April 7, 2007, have been accomplished before the effective date of this AD. Prior/Concurrent Requirements
(g)Prior to or concurrently with the actions required by paragraph
(f)of this AD: Do all applicable actions specified in the service bulletins listed in Table 1 of this AD. Where the lubrication and corrosion protection procedures in any service bulletin listed in Table 1 of this AD differ from those in Boeing Special Attention Service Bulletin 727-32-0338, Revision 4, dated April 7, 2007, use the procedures in Boeing Special Attention Service Bulletin 727-32-0338, Revision 4. Table 1.—Prior/Concurrent Requirements For— Boeing 727 service bulletin— Describes procedures for these prior or concurrent actions—
(1)All airplanes 727-32-0411, Revision 1, dated February 19, 2007 Inspecting for corrosion or cracking of the threads and thread relief area of the swivel clevis, and improving the corrosion protection of the swivel clevis fitting threads in commonly affected airplanes.
(2)Airplanes specified as Options III, IV and V configurations in Boeing Special Attention Service Bulletin 727-32-0338, Revision 4 32-79, Revision 1, dated February 27, 1967 Modifying the MLG side strut universal joint. 32-157, dated August 30, 1968 Replacing the MLG side strut swivel bushing, incorporating only Parts Kit 65-89855-1, and not installing the lube fitting in the lower segment.
(3)Airplanes specified as Option V configuration in Boeing Special Attention Service Bulletin 727-32-0338, Revision 4 727-32-268, Revision 2, dated February 20, 1981 Inspecting and modifying the MLG side strut. 727-57-163, dated September 17, 1982 Resolving the interference between the MLG gear beam and the MLG side strut. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(3)An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD. Issued in Renton, Washington, on November 13, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-22939 Filed 11-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 284 [Docket No. RM08-1-000] Promotion of a More Efficient Capacity Release Market November 15, 2007. AGENCY: Federal Energy Regulatory Commission, Department of Energy. ACTION: Notice of Proposed Rulemaking. SUMMARY: The Federal Energy Regulatory Commission is proposing revisions to its regulations governing interstate natural gas pipelines to reflect changes in the market for short-term transportation services on pipelines and to improve the efficiency of the Commission's capacity release mechanism. The Commission is proposing to permit market based pricing for short-term capacity releases and to facilitate asset management arrangements by relaxing the Commission's prohibition on tying and on its bidding requirements for certain capacity releases. DATES: Comments are due January 10, 2008. ADDRESSES: You may submit comments, identified by docket number by any of the following methods: *Agency Web site: http://ferc.gov.* Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. *Mail/Hand Delivery:* Commenters unable to file comments electronically must mail or hand deliver an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. *Instructions:* For detailed instructions on submitting comments and additional information on the rulemaking process, see the Comment Procedures section of this document. FOR FURTHER INFORMATION CONTACT: Robert McLean, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, *Robert.McLean@ferc.gov,*
(202)502-8156. David Maranville, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, *David.Maranville@ferc.gov,*
(202)502-6351. SUPPLEMENTARY INFORMATION: Notice of Proposed Rulemaking Table of Contents Paragraph numbers I. Background 2. A. The Capacity Release Program 2. B. Petitions and Industry Comments 15. II. Removal of Maximum Rate Ceiling for Short-Term Capacity Release 23. A. Policies Enhancing Competition 30. B. Data on Capacity Release Transactions 33. C. Available Pipeline Service Constrains Market Power Abuses 40. D. Monitoring 42. E. Requests to Expand Market-Based Rate Authority 43. 1. Removal of Price Ceiling for Long-Term Releases 43. 2. Removal of Price Ceiling for Pipeline Short-Term Transactions 46. III. Asset Management Arrangements 53. A. Background 53. B. Discussion 63. 1. Tying 75. 2. The Bidding Requirement 83. 3. Definition of AMAs 91. IV. State Mandated Retail Choice Programs 97. V. Shipper Must-Have-Title Requirement 106. VI. Regulatory Requirements 111. A. Information Collection Statement 111. B. Environmental Analysis 114. C. Regulatory Flexibility Act 115. D. Comment Procedures 117. E. Document Availability 121. 1. In this Notice of Proposed Rulemaking, the Commission proposes to revise its Part 284 regulations concerning the release of firm capacity by shippers on interstate natural gas pipelines. First, the Commission proposes to remove, on a permanent basis, the rate ceiling on capacity release transactions of one year or less. Second, the Commission proposes to modify its regulations to facilitate the use of asset management arrangements (AMAs), under which a capacity holder releases some or all of its pipeline capacity to an asset manager who agrees to supply the gas needs of the capacity holder. Specifically, the Commission proposes to exempt capacity releases made as part of AMAs from the prohibition on tying and from the bidding requirements of section 284.8. These proposals are designed to enhance competition in the secondary capacity release market and increase shipper options for how they obtain gas supplies. I. Background A. The Capacity Release Program 2. The Commission adopted its capacity release program as part of the restructuring of natural gas pipelines required by Order No. 636. 1 In Order No. 636, the Commission sought to foster two primary goals. The first goal was to ensure that all shippers have meaningful access to the pipeline transportation grid so that willing buyers and sellers can meet in a competitive, national market to transact the most efficient deals possible. The second goal was to ensure consumers have “access to an adequate supply of gas at a reasonable price.” 2 1 *Pipeline Service Obligations and Revisions to Regulations Governing Self-Implementing Transportation and Regulation of Natural Gas Pipelines After Partial Wellhead Decontrol* , Order No. 636, 57 FR 13,267 (April 16, 1992), FERC Stats. and Regs., Regulations Preambles January 1991-June 1996 ¶ 30,939 (April 8, 1992); *order on reh'g* , Order No. 636-A, 57 FR 36,128 (August 12, 1002), FERC Stats. and Regs., Regulations Preambles January 1991-June 1996 ¶ 30,950 (August 3, 1992); *order on reh'g* , Order No. 636-B, 57 FR 57,911 (Dec. 8, 1992), 61 FERC ¶ 61,272 (1992); *notice of denial of reh'g* , 62 FERC ¶ 61,007 (1993); *aff'd in part, vacated and remanded in part, United Dist. Companies* v. *FERC* , 88 F.3d 1105 (D.C. Cir. 1996); *order on remand* , Order No. 636-C, 78 FERC ¶ 61,186 (1997). 2 Order No. 636 at 30,393 (citations omitted). 3. To accomplish these goals, the Commission sought to maximize the availability of unbundled firm transportation service to all participants in the gas commodity market. The linchpin of Order No. 636 was the requirement that pipelines unbundle their transportation and storage services from their sales service, so that gas purchasers could obtain the same high quality firm transportation service whether they purchased from the pipeline or another gas seller. In order to create a transparent program for the reallocation of interstate pipeline capacity to complement the unbundled, open access environment created by Order No. 636, the Commission also adopted a comprehensive capacity release program to increase the availability of unbundled firm transportation capacity by permitting firm shippers to release their capacity to others when they were not using it. 3 3 In brief, under the Commission's capacity release program, a firm shipper (releasing shipper) sells its capacity by returning its capacity to the pipeline for reassignment to the buyer (replacement shipper). The pipeline contracts with, and receives payment from, the replacement shipper and then issues a credit to the releasing shipper. The replacement shipper may pay less than the pipeline's maximum tariff rate, but not more. 18 CFR 284.8(e) (2007). The results of all releases are posted by the pipeline on its Internet Web site and made available through standardized, downloadable files. 4. The Commission reasoned that the capacity release program would promote efficient load management by the pipeline and its customers and would, therefore, result in the efficient use of firm pipeline capacity throughout the year. It further concluded that, “because more buyers will be able to reach more sellers through firm transportation capacity, capacity reallocation comports with the goal of improving nondiscriminatory, open access transportation to maximize the benefits of the decontrol of natural gas at the wellhead and in the field.” 4 4 Order No. 636 at 30,418. 5. In Order No. 636, the Commission expressed concerns regarding its ability to ensure that firm shippers would reallocate their capacity in a non-discriminatory manner to those who placed the highest value on the capacity up to the maximum rate. The Commission noted that prior to Order No. 636, it authorized some pipelines to permit their shippers to “broker” their capacity to others. Under such capacity brokering, firm shippers were permitted to assign their capacity directly to a replacement shipper, without any requirement that the brokering shipper post the availability of its capacity or allocate it to the highest bidder. 5 However, in Order No. 636, the Commission found “there [were] too many potential assignors of capacity and too many different programs for the Commission to oversee capacity brokering.” 6 5 *See Algonquin Gas Transmission Corp.* , 59 FERC ¶ 61,032 (1992). 6 Order No. 636 at 30,416. 6. The Commission sought to ensure that the efficiencies of the secondary market were not frustrated by unduly discriminatory access to the market. 7 Therefore, the Commission replaced capacity brokering with the capacity release program designed to provide greater assurance that transfers of capacity from one shipper to another were transparent and not unduly discriminatory. This assurance took the form of several conditions that the Commission placed on the transfer of capacity under its new program. 7 Order No. 636-A at 30,554. 7. First, the Commission prohibited private transfers of capacity between shippers and, instead, required that all release transactions be conducted through the pipeline. Therefore, when a releasing shipper releases its capacity, the replacement shipper must enter into a contract directly with the pipeline, and the pipeline must post information regarding the contract, including any special conditions. 8 In order to enforce the prohibition on private transfers of capacity, the Commission required that a shipper must have title to any gas that it ships on the pipeline. 9 8 Order No. 636 emphasized: The main difference between capacity brokering as it now exists and the new capacity release program is that under capacity brokering, the brokering customer could enter into and execute its own deals without involving the pipeline. Under capacity releasing, all offers *must* be put on the pipeline's electronic bulletin board and contracting is done directly with the pipeline. Order No. 636 at 30, 420 (emphasis in original). 9 As the Commission subsequently explained in Order No. 637, “the capacity release rules were designed with [the shipper-must-have-title] policy as their foundation,” because, without this requirement, “capacity holders could simply transport gas over the pipeline for another entity.” *Regulation of Short-Term Natural Gas Transportation Services and Regulation of Interstate Natural Gas Transportation Services* , Order No. 637, FERC Stats. & Regs. ¶ 31,091 at 31,300, *clarified* , Order No. 637-A, FERC Stats. & Regs. ¶ 31,099, *reh'g denied* , Order No. 637-B, 92 FERC ¶ 61,062 (2000), *aff'd in part and remanded in part sub nom. Interstate Natural Gas Ass'n of America* v. *FERC* , 285 F.3d 18 (D.C. Cir. 2002), *order on remand* , 101 FERC ¶ 61,127 (2002), *order on reh'g* , 106 FERC ¶ 61,088 (2004), *aff'd sub nom. American Gas Ass'n* v. *FERC* , 428 F.3d 255 (D.C. Cir. 2005). *See* section V below for a further explanation of the shipper-must-have-title requirement. 8. Second, the Commission determined that the record of the proceeding that led to Order No. 636 did not reflect that the market for released capacity was competitive. The Commission reasoned that the extent of competition in the secondary market may not be sufficient to ensure that the rates for released capacity will be just and reasonable. Therefore, the Commission imposed a ceiling on the rate that the releasing shipper could charge for the released capacity. 10 This ceiling was derived from the Commission's estimate of the maximum rates necessary for the pipeline to recover its annual cost-of-service revenue requirement, which the Commission prorated over the period of each release. 11 10 Order No. 636 at 30,418; Order No. 636-A at 30,560. f 11 Order No. 637 at 31,270-71. 9. Third, the Commission required that capacity offered for release at less than the maximum rate must be posted for bidding, and the pipeline must allocate the capacity “to the person offering the highest rate (not over the maximum rate).” 12 The Commission permitted the releasing shipper to choose a pre-arranged replacement shipper who can retain the capacity by matching the highest bid rate. The bidding requirement, however, does not apply to releases of 31 days or less or to any release at the maximum rate. But all releases, whether or not subject to bidding, must be posted. 13 12 18 CFR §284.8(e)
(2007)provides in pertinent part that “[t]he pipeline must allocate released capacity to the person offering the highest rate (not over the maximum rate) and offering to meet any other terms or conditions of the release.” 13 18 CFR § 284.8(h)(1) provides that a release of capacity for less than 31 days, or for any term at the maximum rate, need not comply with certain notification and bidding requirements, but that such release may not exceed the maximum rate. Notice of the release “must be provided on the pipeline's electronic bulletin board as soon as possible, but not later than forty-eight hours, after the release transaction commences.” 10. Finally, the Commission prohibited tying the release of capacity to any extraneous conditions so that the releasing shippers could not attempt to add additional terms or conditions to the release of capacity. The Commission articulated the prohibition against the tying of capacity in Order No. 636-A, where it stated: The Commission reiterates that *all* terms and conditions for capacity release must be posted and non-discriminatory and must relate solely to the details of acquiring transportation on the interstate pipelines. Release of capacity cannot be tied to any other conditions. Moreover, the Commission will not tolerate deals undertaken to avoid the notice requirements of the regulations. Order No. 636-A at 30, 559 (emphasis in the original). 11. Subsequent to the Commission's adoption of its capacity release program in Order No. 636, the Commission conducted two experimental programs to provide more flexibility in the capacity release market. In 1996, the Commission sought to establish an experimental program inviting individual shipper and pipeline applications to remove price ceilings related to capacity release. 14 The Commission recognized that significant benefits could be realized through removal of the price ceiling in a competitive secondary market. Removal of the ceiling permits more efficient capacity utilization by permitting prices to rise to market clearing levels and by permitting those who place the highest value on the capacity to obtain it. 15 14 *Secondary Market Transactions on Interstate Natural Gas Pipelines, Proposed Experimental Pilot Program to Relax the Price Cap for Secondary Market Transactions* , 61 FR 41401 (Aug. 8, 1996), 76 FERC ¶ 61,120, *order on reh'g* , 77 FERC ¶ 61,183 (1996). 15 77 FERC ¶ 61,183
(1996)at 61,699. 12. In 2000, in Order No. 637, the Commission conducted a broader experiment in which the Commission removed the rate ceiling for short-term (less than one year) capacity release transactions for a two-year period ending September 30, 2002. In contrast to the experiment that it conducted in 1996, in the Order No. 637 experiment the Commission granted blanket authorization in order to permit all firm shippers on all open access pipelines to participate. The Commission stated that it undertook this experiment to improve shipper options and market efficiency during peak periods. The Commission reasoned that during peak periods, the maximum rate cap on capacity release transactions inhibits the creation of an effective transportation market by preventing capacity from going to those that value it the most and therefore the elimination of this rate ceiling would eliminate this inefficiency and enhance shipper options in the short-term marketplace. 16 16 Order No. 637 at 31,263. The Commission also explained why it was lifting the price cap on an experimental basis, instead of permanently, stating: While the removal of the price cap is justified based on the record in this rulemaking, the Commission recognizes that this is a significant regulatory change that should be subject to ongoing review by the Commission and the industry. No matter how good the data suggesting that a regulatory change should be made, there is no substitute for reviewing the actual results of a regulatory action. The two year waiver will provide an opportunity for such a review after sufficient information is obtained to validly assess the results. Due to the variation between years in winter temperatures, the waiver will provide the Commission and the industry with two winter's worth of data with which to examine the effects of this policy change and determine whether changes or modifications may be needed prior to the expiration of the waiver. Order No. 637 at 31,279. 13. Upon an examination of pricing data on basis differentials between points, 17 the Commission found that the price ceiling on capacity release transactions limited the capacity options of short-term shippers because firm capacity holders were able to avoid price ceilings on released capacity by substituting bundled sales transactions at market prices (where the market place value of transportation is an implicit component of the delivered price). As a consequence, the Commission determined that the price ceilings did not limit the prices paid by shippers in the short-term market as much as the ceilings limit transportation options for shippers. In short, the Commission found that the rate ceiling worked against the interests of short-term shippers, because with the rate ceilings in place, a shipper looking for short-term capacity on a peak day who was willing to offer a higher price in order to obtain it, could not legally do so; this reduced its options for procuring short-term transportation at the times that it needed it most. 18 Throughout this experiment, the Commission retained the rate ceiling for firm and interruptible capacity available from the pipeline as well as long-term capacity release transactions. 17 Among other things, the data showed that the value of pipeline capacity, as shown by basis differentials, was generally less than the pipelines' maximum interruptible transportation rates, except during the coldest days of the year, and capacity release prices also averaged somewhat less than pipelines' maximum interruptible rates. 18 Order No. 637 at 31,282. 14. On April 5, 2002, the United States Court of Appeals for the District of Columbia Circuit, in *Interstate Natural Gas Association of America* v. *FERC* , 19 upheld the Commission's experimental price ceiling program for short-term capacity release transactions as set forth in Order No. 637. 20 The court found that the Commission's “light handed” approach to the regulation of capacity release prices was, given the safeguards that the Commission had imposed, consistent with the criteria set forth in *Farmers Union Cent. Exch* . v. *FERC* . 21 The court found that the Commission made a substantial record for the proposition that market rates would not materially exceed the “zone of reasonableness” required by *Farmers Union* . The court also found that the Commission's inference of competition in the capacity release market was well founded, that the price spikes shown in the Commission's data were consistent with competition and reflected scarcity of supply rather than monopoly power, and that outside of such price spikes, the rates were well below the estimated regulated price. 22 19 285 F.3d 18 (D.C. Cir. 2002) ( *INGAA* ). 20 Specifically, the court found that: “[g]iven the substantial showing that in this context competition has every reasonable prospect of preventing seriously monopolistic pricing, together with the non-cost advantages cited by the Commission and the experimental nature of this particular “lighthanded” regulation, we find the Commission's decision neither a violation of the NGA, nor arbitrary or capricious.” *INGAA* at 35. 21 734 F.2d 1486 (D.C. Cir. 1984) ( *Farmers Union* ). 22 *Id* . at 33. B. Petitions and Industry Comments 15. In August 2006, Pacific Gas and Electric Co. (PG&E) and Southwest Gas Corp. (Southwest) filed a petition requesting the Commission to amend sections 284.8(e) and (h)(1) of its regulations to remove the maximum rate cap on capacity release transactions. 23 They stated that removing the price ceiling would improve the efficiency of the capacity market by giving releasing shippers a greater incentive to release their capacity during periods of constraint. They asserted that this would allow shippers who value the capacity the most to obtain it, provide more accurate price signals concerning the value of capacity, and provide greater potential cost mitigation to holders of long-term firm capacity. They also pointed out that the Commission now permits pipelines to negotiate rates with individual customers using basis differentials ( *i.e.* , the difference between natural gas commodity prices at two trading points, such as a supply basin and a city gate delivery point) and such negotiated rates may exceed the pipeline's recourse maximum rate. PG&E and Southwest assert that releasing shippers must have greater pricing flexibility in order to compete with such negotiated rate deals offered by the pipelines. 23 Docket No. RM06-21-000. PG&E subsequently clarified that it only seeks removal of the price cap for capacity releases of less than a year. 16. In October 2006, a group of large natural gas marketers 24 (Marketer Petitioners) requested clarification of the operation of the Commission's capacity release rules in the context of asset (or portfolio) management services. 25 An AMA is an agreement under which a capacity holder releases, on a pre-arranged basis, all or some of its pipeline capacity, along with associated gas purchase contracts, to an asset or portfolio manager. The asset manager uses the capacity to satisfy the gas supply needs of the releasing shipper, and, when the capacity is not needed to serve the releasing shipper, the asset manager uses it to make gas sales or re-releases the capacity to third parties. 24 Coral Energy Resources, LP; ConocoPhillips Co.; Chevron USA, Inc.; Constellation Energy Commodities Group, Inc.; Tenaska Marketing Ventures; Merrill Lynch Commodities, Inc.; Nexen Marketing USA, Inc.; and UBS Energy LLC. 25 The Marketer Petitioners originally filed their petition in Docket Nos. RM91-11-009 and RM98-10-013. However, the Commission has re-docketed the petition in Docket No. RM07-4-000. 17. The Marketer Petitioners state that Order No. 636 adopted the capacity release program as a means for shippers to transfer unneeded capacity to other entities who desired it. However, the Marketer Petitioners state, today many local distribution companies
(LDCs)and others desire to release their capacity to a replacement shipper (asset manager) with greater market expertise, who will continue to use the capacity to provide gas supplies to the releasing shipper and will be better able to maximize the value of the released capacity when it is not needed to serve the releasing shipper. The Marketer Petitioners state that the Commission's current capacity release rules may interfere with marketers providing efficient asset management services. They also assert that they are not seeking to remove the capacity release rate cap, but acknowledge that if the Commission took such action, it would eliminate some of their problems. 18. On January 3, 2007, the Commission issued a request for comments on the current operation of the Commission's capacity release program and whether changes in any of its capacity release policies would improve the efficiency of the natural gas market. 26 The Commission's request for comments was in part in response to the petitions discussed above. In addition to the issues raised by the petitions, the Commission also included in its request for comments a series of questions asking whether the Commission should lift the price ceiling, remove its capacity release bidding requirements, modify its prohibition on tying arrangements, and/or remove the shipper-must-have-title requirement. 26 *Pacific Gas & Electric Co.* , 118 FERC ¶ 61,005 (2007). 19. In response to the price ceiling issues, commenting LDCs and pipelines both advocate lifting the ceiling, subject to different conditions. The LDCs favor lifting the ceiling only if it would still apply to the pipeline's direct sales of capacity because, among other things, the pipelines have negotiated rate authority that is not available to releasing shippers. 27 The pipelines advocate the removal of the cap only if the Commission removes the cap from the entire capacity marketplace; otherwise, they argue, it will create a bifurcated market and an uneven playing field. 27 Under the negotiated rate program, a pipeline may charge rates different from those set forth in its open access tariff, as long as the shipper has recourse to taking service at the maximum tariff rate. *See, Alternatives to Traditional Cost-of-Service Ratemaking for Natural Gas Pipelines* , 74 FERC ¶ 61,076, *reh'g denied* , 75 FERC ¶ 61,024 (1996), *petitions for review denied sub nom., Burlington Resources Oil & Gas Co.* v. *FERC* , 172 F.3d 918 (D.C. Cir. 1998). *See also Natural Gas Pipelines Negotiated Rate Policies and Practices; Modification of Negotiated Rate Policy* , 104 FERC ¶ 61,134 (2003), *order on reh'g and clarification* , 114 FERC ¶ 61,042, dismissing reh'g and denying clarification, 114 FERC ¶ 61,304 (2006). 20. Producers and industrial customers generally oppose lifting the price ceiling on a permanent basis, arguing that the Commission must first develop new data to support such action and that it cannot rely on the results of the Order No. 637 experiment that terminated five years ago. Certain producers, however, would countenance a new experiment conducted by the Commission to gather new data related to the lifting of the price ceiling. Additionally, certain marketers and the American Public Gas Association
(APGA)argue that the Commission cannot remove the ceiling unless there is a finding of lack of market power. 21. In response to the request for comments on whether the Commission should consider adjusting the capacity release regulations to foster AMAs, numerous commenters responded that AMAs are beneficial to the market place and that the Commission should do something to facilitate their use. A vast majority of the commenters assert that AMAs provide substantial benefits, including more load responsive use of gas supply, greater liquidity, increased use of transportation capacity, cost effective procurement vehicles for LDCs and other end users, and the enhancement of competition. They state that AMAs also relieve LDCs from management of their daily gas supply and capacity needs. Others comment that AMAs benefit all parties involved: The releasing shipper reduces its costs through use of its capacity entitlements to facilitate third party sales; the third parties benefit from receiving a bundled product at an acceptable price; and the asset manager receives whatever profits are not passed on to the releasing shipper. 22. In particular, the Marketer Petitioners and other commenters request that the Commission clarify that the different payments made between parties in an AMA do not constitute prohibited above maximum rate transactions or below maximum rate transactions that thus require posting and bidding. They also request that the Commission revisit its prohibition on tying to allow the packaging of gas supply contracts and pipeline or storage capacity, or multiple segments of capacity, as part of an AMA. Certain commenters also suggest changes to the Commission's notice and bidding requirements for capacity releases. A number of LDCs and marketers request that the bidding requirement be eliminated altogether or that the regulations be revised to eliminate bidding for capacity releases made to implement an AMA. II. Removal of Maximum Rate Ceiling for Short-Term Capacity Release 23. Based upon its review of the petitions, comments and available data, the Commission proposes to lift the price ceiling for short-term capacity release transactions of one year or less. The Commission's capacity release program has created a successful secondary market for capacity. 28 Commenters from disparate segments of the natural gas industry agree that the capacity release program has been beneficial to the industry in creating a competitive secondary market for natural gas transportation. 29 28 As the Commission observed in 2005, the “capacity release program together with the Commission's policies on segmentation, and flexible point rights, has been successful in creating a robust secondary market where pipelines must compete on price.” *Policy for Selective Discounting by Natural Gas Pipelines* , 111 FERC ¶ 61,309 at P 39-41) (2005), *order on reh'g* , 113 FERC ¶ 61,173 (2005). 29 *See e.g.* , PG&E and Southwest Gas Petition at 10 (“There is reason to believe that the secondary market is more competitive today than it was six years ago.”); Market Petitioners at 3 (“The Commission's capacity release program has proven to be a critical initiative in opening U.S. natural gas markets to competition.”); AGA Comments at 3 (“The Commission's regulations have permitted the development of an open and active secondary market for pipeline capacity that has provided significant benefits to natural gas consumers.”); *INGAA* Comments at 12 (“The current market for short-term transportation capacity is large and highly competitive.”); and NGSA Comments at 2 (“The basic structure of the Commission's policies is still providing the benefits intended of transparent, nondiscriminatory, efficient allocation of capacity.”). 24. As the comments point out, shippers and potential shippers are looking for greater flexibility in the use of capacity. They seek to better integrate capacity with the underlying gas transactions, and are looking for more flexible methods of pricing capacity to better reflect the value of that capacity as revealed by the market price of gas at different trading points. Pipelines, for example, have been using their negotiated rate authority to sell their own capacity based on market-derived basis differentials reflective of the difference in gas prices between two points. The Commission recently clarified that pipelines may use such basis differential pricing as a part of negotiated rate transactions even when those prices exceed maximum tariff rates. 30 Under the Commission's regulations, releasing shippers also may enter into capacity release transactions based on basis differentials, but such releases cannot exceed the maximum rate. 31 In their comments, releasing shippers request the ability to release at above the maximum rate so that they may offer potential buyers rates competitive with pipeline negotiated rate transactions. 32 30 *Natural Gas Pipelines Negotiated Rate Policies and Practices; Modification of Negotiated Rate Policy* , 104 FERC ¶ 61,134 (2003), *order on reh'g and clarification* , 114 FERC ¶ 61,042, *dismissing reh'g and denying clarification* , 114 FERC ¶ 61,304 (2006). 31 *See Standards for Business Practices for Interstate Natural Gas Pipelines and for Public Utilities* , Order No. 698, 72 FR 38757 (July 16, 2007), FERC Stats. & Regs. ¶ 31,251 (June 25, 2007). 32 *See, e.g.* , PG&E and Southwest Gas Petition at 10-11. 25. As the Commission recognized in Order No. 637, 33 the traditional cost-of-service price ceilings in pipeline tariffs, which are based on average yearly rates, are not well suited to the short-term capacity release market. 34 Removal of the price ceiling will enable releasing shippers to offer competitively-priced alternatives to the pipelines' negotiated rate offerings. Removal of the ceiling also permits more efficient utilization of capacity by permitting prices to rise to market clearing levels, thereby permitting those who place the highest value on the capacity to obtain it. Removal of the price ceiling also will provide potential customers with additional opportunities to acquire capacity. The price ceiling reduces the firm capacity holders' incentive to release capacity during times of scarcity, because they cannot obtain the market value of the capacity. 33 Order No. 637 at 31,271-75. 34 While the Commission offered pipelines the opportunity to propose other types of rate designs, such as seasonal and term-differentiated rates, only a very few pipelines have sought to make such rate design changes, although virtually all pipelines have taken advantage of negotiated rate authority. 26. Further, the elimination of the price ceiling for short-term capacity releases will provide more accurate price signals concerning the market value of pipeline capacity. More accurate price signals will promote the efficient construction of new capacity by highlighting the location, frequency, and severity of transportation constraints. Correct capacity pricing information will also provide transparent market values that will better enable pipelines and their lenders to calculate the potential profitability and associated risk of additional construction designed to alleviate transportation constraints. 27. Moreover, removing the price ceiling on short-term capacity releases should not harm, and may benefit, the “primary intended beneficiaries of the NGA—the ‘captive' shippers.” 35 Those shippers typically have long-term firm contracts with the pipeline, and therefore will “continue to receive whatever benefits the rate ceilings generally provide,” while also “reaping the benefits of [the] new rule, in the form of higher payments for their releases of surplus capacity.” 36 35 *INGAA* at 33. 36 *Id.* 28. As the court stated in *INGAA* , the Commission may depart from cost of service ratemaking upon: A showing that * * * the goals and purposes of the statute will be accomplished ‘through the proposed changes.' To satisfy that standard, we demanded that the resulting rates be expected to fall within a ‘zone of reasonableness, where [they] are neither less than compensatory nor excessive.' [citation omitted]. While the expected rates' proximity to cost was a starting point for this inquiry into reasonableness, [citation omitted], we were quite explicit that ‘non-cost factors may legitimate a departure from a rigid cost-based approach,' [citation omitted]. Finally, we said that FERC must retain some general oversight over the system, to see if competition in fact drives rates into the zone of reasonableness ‘or to check rates if it does not.' 37 37 *Id* . at 31. 29. Many of the changes effected in Order Nos. 636 and 637 have enhanced competition between releasing shippers as well as between releasing shippers and the pipeline. As discussed below, the data obtained by the Commission both during the Order No. 637 experiment and more recently confirms the finding made in Order No. 637 that short-term release prices are reflective of market prices as revealed by basis differentials, rather than reflecting the exercise of market power. Moreover, shippers purchasing capacity will be adequately protected because the pipeline's firm and interruptible services will provide just and reasonable recourse rates limiting the ability of releasing shippers to exercise market power. Finally, the reporting requirements in Order No. 637 and the Commission's implementation of the Energy Policy Act of 2005, specifically with respect to market manipulation, provide the Commission with enhanced ability to monitor the market and detect and deter abuses. A. Policies Enhancing Competition 30. In Order No. 636 and, as expanded in Order No. 637, the Commission instituted a number of policy revisions designed to enhance competition and improve efficiency across the pipeline grid. These revisions provide shippers with enhanced market mechanisms that will help ensure a more competitive market and mitigate the potential for the exercise of market power. 31. The Commission required pipelines to permit releasing shippers to use flexible point rights and to fully segment their pipeline capacity. Flexible point rights enable shippers to use any points within their capacity path on a secondary basis, which enables shippers to compete effectively on release transactions with other shippers. Segmentation further enhances the ability to compete because it enables the releasing shipper to retain the portion of the pipeline capacity it needs while releasing the unneeded portion. Effective segmentation will make more capacity available and enhance competition. As the Commission explained in Order No. 637: The combination of flexible point rights and segmentation increases the alternatives available to shippers looking for capacity. In the example, 38 a shipper in Atlanta looking for capacity has multiple choices. It can purchase available capacity from the pipeline. It can obtain capacity from a shipper with firm delivery rights at Atlanta or from any shipper with delivery point rights downstream of Atlanta. The ability to segment capacity enhances options further. The shipper in New York does not have to forgo deliveries of gas to New York in order to release capacity to the shipper seeking to deliver gas in Atlanta. The New York shipper can both sell capacity to the shipper in Atlanta and retain the right to inject gas downstream of Atlanta to serve its New York market. 39 38 In the example used in Order No. 636, a shipper holding firm capacity from a primary receipt point in the Gulf of Mexico to primary delivery points in New York could release that capacity to a replacement shipper moving gas from the Gulf to Atlanta while the New York releasing shipper could inject gas downstream of Atlanta and use the remainder of the capacity to deliver the gas to New York. 39 Order No. 637 at 31,300. 32. In addition to enhancing competition through expansion of flexible point rights and segmentation, the Commission in Order No. 637 also required pipelines to provide shippers with scheduling equal to that provided by the pipeline, so that replacement shippers can submit a nomination at the first available opportunity after consummation of the capacity release transaction. The change makes capacity release more competitive with pipeline services and increases competition between capacity releasers by enabling replacement shippers to schedule the use of capacity obtained through release transactions quickly rather than having to wait until the next day. B. Data on Capacity Release Transactions 33. The data accumulated by the Commission during the Order No. 637 experiment, as well as review of more recent data, show that capacity release prices reflect competitive conditions in the industry. On May 30, 2002, the Commission issued a notice of staff paper presenting data on capacity release transactions during the experimental period when the capacity release ceiling price was waived. 40 The staff paper provided analysis of capacity release transactions on 34 pipelines during the 22-month period from March 2000 to December 2001. 41 40 On May 30, 2002, a Staff Paper was posted on the Commission's *Web site* presenting, and analyzing data on capacity release transactions relating to the experimental period when the rate ceiling on short-term released capacity was waived. 41 Many of these release transactions would have occurred prior to completion of the pipeline's Order No. 637 compliance proceedings and the implementation of the changes to flexible point rights, segmentation and scheduling described above. 34. In brief, the data gathered during the 33-month period show that without the price ceiling, prices exceeded the maximum rate only during short time periods and appear to be reflective of competitive conditions in the industry. The following table shows the distribution of above ceiling price releases among the pipelines studied. Table I.—Above Cap Releases by Pipeline [Releases awarded between March 26, 2000 and December 31, 2001] Pipeline Releases above max rate (Number of transactions) % of total releases Releases quantity above max rate (MMBtu/day) % of total release quantity Algonquin 1 0.1 18,453 0.2 ANR Pipeline 1 0.1 30,000 0.2 CIG 19 6.5 109,984 4.4 Dominion
(CNGT)21 1.0 65,789 0.7 Columbia Gas 101 4.4 374,727 2.7 Columbia Gulf East Tennessee El Paso 135 13.3 631,683 12.5 Florida Gas 25 1.7 43,526 1.4 Great Lakes 3 1.3 15,000 0.6 Iroquois Kern River 2 3.9 55,000 2.5 KMI (KNEnergy) 3 1.0 1,409 0.0 Gulf South
(Koch)Midwestern 1 0.6 50,000 2.3 Mississippi River Mojave Pipeline Co 1 2.6 40,000 4.7 Natural Gas Pipeline Co 16 3.2 270,489 2.3 Reliant (Noram) Northern Border Northern Natural 12 1.6 23,273 0.5 Northwest Pipeline 24 1.8 139,850 4.1 Paiute Pipeline Panhandle Eastern 1 0.4 1,000 0.1 Southern Natural 7 0.3 24,101 0.2 Tennessee Gas 11 0.4 36,421 0.2 TETCO 122 3.8 645,856 3.3 Texas Gas 6 0.5 103,237 1.0 Trailblazer 3 25.0 15,000 10.0 Transco 183 3.3 1,540,885 4.1 Transwestern 11 4.5 64,058 6.5 Trunkline Williams 4 0.4 16,500 0.3 Williston Basin Total 713 2.2 4,316,241 2.1 35. These data show that during periods without capacity constraints, prices remained at or below the maximum rate. The staff paper does identify 713 releases above the ceiling price, representing an average total capacity release contract volume of 4.3 billion cubic feet
(Bcf)per day. However, the staff paper reflects that these above-ceiling price releases represented only a small portion of the total releases on these pipelines, comprising approximately two percent of total transactions on the pipelines studied for the entire period, and two percent of gas volumes. Further, above ceiling releases accounted for no more than six or seven percent of transactions during any given month of the period. As one would expect, the percentages of releases occurring above the ceiling increased during peak periods. However, average release rates were higher by only one cent per MMBtu per day or five and one-half percent higher than they would have been with the price ceiling in place. Of the 34 pipelines in the study, 10 reported no releases above the ceiling price, and 20 pipelines reported fewer than 25 above-ceiling price releases. The data gathered during this 22-month period reflects the Commission's expectations and affirms the Commission's findings in the Order No. 637 proceeding. As the court stated in *INGAA* : The data represented in the graph [] do support the Commission's view that the capacity release market enjoys considerable competition. The brief spikes in moments of extreme exigency are completely consistent with competition, reflecting scarcity rather than monopoly. * * * [citation omitted] A surge in the price of candles during a power outage is no evidence of monopoly in the candle market. 42 42 *INGAA* at 32. 36. Several commenters argue that the data gathered by the Commission is too stale to support the instant proposal to remove the price ceiling on short-term capacity releases. However, these commenters fail to produce any evidence to support specific concerns existing today that did not exist during the experimental period. Moreover, the Commission has gathered additional current data and has replicated the evidence presented in Order No. 637. The current data shows that the conditions that existed at the time of Order No. 637 and during the past experimental period continue in today's marketplace. 37. Figure 1 illustrates the fluctuations in the market value of transportation service, as shown by the basis differentials between Louisiana and New York City. This graph compares the daily difference in gas prices between Louisiana and New York City to Transcontinental Gas Pipe Line Corporation's maximum interruptible transportation rate, including fuel retainage, during the 12 months ending July 31, 2007. This graph shows that for most of the year, the value of transportation service, as indicated by the basis differentials, is less than the maximum transportation rate. However, during brief, peak demand periods, the value of transportation service is measurably greater than the maximum transportation rate. For example, on February 5, 2007, the basis differential between Louisiana and New York City was in excess of $27.00 per MMBtu, while the maximum tariff rate plus the cost of fuel was approximately $1.08 per MMBtu. 43 43 In Order No. 637, the Commission presented similar data in figure 6 showing the implicit transportation value between South Louisiana and Chicago. Order No. 637 at 31,274. EP26NO07.004 38. Figures 2 and 3 below reflect that a similar pattern of transportation value is evident in other areas of the country. Focusing on fluctuations in the market value of transportation service as shown by basis differentials between Louisiana and Chicago and between the Permian Basin and the California border, respectively, these figures show that for most of the year, the value of transportation service is less than the maximum transportation rate of Natural Gas Pipeline Company of America and El Paso Natural Gas Company, respectively. However, similar to figure 1, these figures also reflect that during brief, peak-demand periods, the value of transportation service is measurably greater than the maximum transportation rate. EP26NO07.005 EP26NO07.006 39. The data in all three of the above figures reflect similar market conditions to the data that the Commission relied upon in lifting the price ceiling for short-term capacity releases in Order No. 637, with the market value of capacity generally below the pipeline's maximum rate except for relatively brief price spikes. 44 In affirming the Commission's actions, the court in *INGAA* found that the data presented by the Commission constituted a substantial basis for the conclusion that a considerable amount of competition existed in the capacity release market. Further, the *INGAA* court concluded that the price spikes reflected in the data were consistent with competition and that such spikes reflected scarcity rather than monopoly. 45 44 Order No. 637 at 31,273-75. 45 *INGAA* at 32. C. Available Pipeline Service Constrains Market Power Abuses 40. The Commission envisions that under the instant proposal the pipeline's open access transportation maximum tariff rates (recourse rates) will serve as additional protection against possible abuses of market power by releasing shippers. The Commission requires pipelines to sell all their available capacity to shippers willing to pay the pipeline's maximum recourse rate. 46 Under their negotiated rate authority, pipelines are free to negotiate individualized rates with particular shippers that may be above the maximum tariff rate, subject to several conditions including the availability of the maximum tariff rate as a recourse rate for potential firm shippers. 47 As the Commission explained in its negotiated rate policy statement, “[t]he availability of a recourse service would prevent pipelines from exercising market power by assuring that the customer can fall back to traditional cost-based service if the pipeline unilaterally demands excessive prices or withholds service.” 48 46 *Tennessee Gas Pipeline Co.,* 91 FERC ¶ 61,053 (2002), *reh'g denied* , 94 FERC ¶ 61,097 (2001), *petitions for review denied sub nom., Process Gas Consumers Group* v. *FERC,* 292 F.3d 831, 837 (D.C. Cir. 2002). 47 *See, Alternatives to Traditional Cost-of-Service Ratemaking for Natural Gas Pipelines* , 74 FERC ¶ 61,076, *reh'g denied* , 75 FERC ¶ 61,024 (1996), *petitions for review denied sub nom., Burlington Resources Oil & Gas Co.* v. *FERC* , 172 F.3d 918 (D.C. Cir. 1998). *See also Natural Gas Pipelines Negotiated Rate Policies and Practices; Modification of Negotiated Rate Policy* , 104 FERC ¶ 61,134 (2003), *order on reh'g and clarification* , 114 FERC ¶ 61,042, *dismissing reh'g and denying clarification* , 114 FERC ¶ 61,304 (2006). 48 *Alternatives to Traditional Cost-of-Service Ratemaking for Natural Gas Pipelines,* 74 FERC ¶ 61,076 at 61,240 (1996). 41. The court in *INGAA* recognized the value of the pipeline's recourse rate protecting against possible abuses of market power by releasing shippers stating that, [i]f holders of firm capacity do not use or sell all of their entitlement, the pipelines are required to sell the idle capacity as interruptible service to any taker at no more than the maximum rate—which is still applicable to the pipelines. 49 49 *INGAA* at 32. Removing the price ceiling for short-term capacity release transactions will enable releasing shippers to offer negotiated rate transactions similar to those offered by the pipelines. Moreover, the same pipeline open access service will protect against the possibility that a releasing shipper will attempt to exercise market power by withholding capacity. For example, should a releasing shipper attempt to charge a price above competitive levels, the potential purchaser could seek to negotiate a more acceptable rate with the pipeline. Even when the pipeline's firm service is not available, a cost based interruptible rate is always available as an alternative when a releasing shipper attempts to withhold capacity. D. Monitoring 42. Order No. 637 improved the Commission's and the industry's ability to monitor capacity release transactions by requiring daily posting of these transactions on pipeline Web sites. 50 This has increased the information available to buyers while at the same time making it easier for the Commission to identify situations in which shippers are abusing their market power. 51 Further, the Commission will entertain complaints and respond to specific allegations of market power on a case-by-case basis if necessary. Furthermore, the Commission will direct staff to monitor the capacity release program and, using all available information, issue a report on the general performance of the capacity release program, within six months after two years of experience under the new rules. 50 18 CFR 284.8 (2007). 51 Order No. 637 at 31,283; Order No. 637-A at 31,558. E. Requests to Expand Market-Based Rate Authority 1. Removal of Price Ceiling for Long-Term Releases 43. Several commenters request that the Commission remove the price ceiling on long-term capacity releases in addition to eliminating the price ceiling on short-term capacity releases. The Commission declines to make such an adjustment to its policies at this time for several reasons. As discussed above, by lifting the price ceiling for short-term capacity releases, the Commission seeks to provide releasing shippers the flexibility to price their capacity in a manner consistent with the short-term price variations in transportation capacity market values. This action will ameliorate restrictions on the efficient allocation of capacity during the short-term periods when demand drives the value of transportation capacity above the current maximum rate. 44. Limiting the removal of the release ceiling to short-term transactions will also serve as additional protection for potential replacement shippers. Such a limit will ensure that a replacement shipper cannot be locked into a transaction that is not protected by the maximum rate ceiling for more than one year. The expiration of such a short-term transaction would give the replacement shipper an opportunity to explore other options for satisfying its capacity needs. The replacement shipper could seek to negotiate a different price with its current releasing shipper or to obtain capacity from another releasing shipper or directly from the pipeline. 52 Any transaction in which the parties want to continue the release past one year would have to be re-posted for bidding to ensure that the capacity is allocated to the highest valued use. This bidding process could provide an opportunity for re-determining the current market value of the capacity. 52 Releasing and replacement shippers cannot simply roll over a short-term release transaction in order to extend the release beyond one year. The Commission's current regulations do not permit rollovers or extensions of capacity releases made at less than maximum rate or for less than 31 days without re-posting and bidding of that capacity. 18 CFR Section 284.8(h) (2007). 45. Finally, because any such release of a year or less would have to be re-posted for bidding upon its expiration, the second release would be a new release separate from the first release, and thus such a second release of a year or less would also not be subject to the price ceiling. The Commission, however, requests comment on whether there should be any limit on the ability of releasing shippers to make multiple, consecutive short-term releases not subject to the price ceiling. 2. Removal of Price Ceiling for Pipeline Short-Term Transactions 46. Pipelines request that the Commission remove the price ceiling for primary pipeline capacity whether firm or interruptible. In sum, they argue that because the transportation of gas on pipelines has become sufficiently competitive, and because released capacity competes directly with primary short-term firm, interruptible transportation and storage services provided by interstate pipelines, the Commission should lift the rate ceiling on the entire short-term capacity market, not just on capacity releases. Further, they assert that because short-term firm and interruptible services compete directly with capacity release, the same market liquidity considerations that warrant lifting the ceiling on short-term releases support lifting the price ceiling in the primary market. The pipelines assert that the Commission should treat all holders of capacity equally, whether they are pipelines or releasing shippers. 47. The pipelines also assert that removing the price ceiling only on short-term capacity releases would bifurcate the single marketplace for natural gas transportation services. They argue that if prices for some of the capacity in the marketplace remain subject to a price ceiling while the price ceiling is removed for other forms of capacity, then once the capped capacity has been fully utilized, prices for the uncapped capacity will be higher than they would have been without any price ceiling at all. They assert that in affirming the Commission's experiment in removing the price ceiling for short-term capacity releases, the court in *INGAA* recognized this economic cost and labeled it as a “cost of gradualism.” 53 53 *INGAA* at 36. 48. The Commission is not proposing to remove the price ceiling for primary pipeline capacity. Pipelines already have significant ability to use market based pricing. Unlike capacity release transactions, pipelines, as discussed above, currently can enter into negotiated rate transactions above the maximum rate. Pipelines also may seek market based rates by making a filing with the Commission establishing that they lack market power in the markets they serve. 54 In addition, pipelines have the ability to propose seasonal rates for their systems, and therefore, recover more of their annual revenue requirement in peak seasons. 55 54 *Alternatives to Traditional Cost-of-Service Ratemaking for Natural Gas Pipelines and Regulation of Negotiated Transportation Services of Natural Gas Pipelines,* 74 FERC ¶ 61,076 (1996). 55 *See* Order No. 637 at 31,574-31, 581. 49. Moreover, the Commission is concerned about removing rate ceilings for all pipeline transactions without the showings required above in order to protect against the possible exercise of market power. First, as discussed above, the price ceilings on pipeline capacity serve as an effective recourse rate for both pipeline negotiated rate transactions and capacity release transactions to prevent pipelines and releasing shippers from withholding capacity. 56 Second, pipeline capacity is not identical to release capacity, because ownership of the pipeline capacity is likely to be more concentrated than capacity held by shippers for release. 57 Third, the Commission has found that it needs to regulate primary pipeline capacity to ensure that pipelines do not withhold capacity in the long-term by not constructing additional facilities. Because pipelines are in the best position to expand their own systems, cost-of-service rate ceilings help to ensure that pipelines have appropriate incentives to construct new facilities when needed. As the Commission found, “the only way a pipeline [can] create scarcity to force shippers to accept longer term contracts would be to refuse to build additional capacity when demand requires it.” 58 As long as cost-of-service rate ceilings apply, however, “pipelines [will] have a greater incentive to build new capacity to serve all the demand for their service, than to withhold capacity, since the only way the pipeline could increase current revenues and profits would be to invest in additional facilities to serve the increased demand.” 59 Similarly, as long as pipeline short-term services are subject to a cost of service rate, the pipelines will not limit their construction of new capacity to meet demand in order to create scarcity that increases short-term prices. Indeed, releases at above the maximum rate will indicate that pipeline capacity is constrained and demonstrate that constructing additional capacity could be profitable. 56 In Order No. 890, the Commission retained price ceilings on transportation capacity for transmission owners to provide similar recourse rate protection. *Preventing Undue Discrimination and Preference in Transmission Service,* Order No. 890, 72 FR 12,266 (March 15, 2007), 12366, FERC Stats. & Regs. ¶ 31,241 at P 808-09 (2007). 57 As the *INGAA* court stated: In fact the Commission's distinction is not unreasonable. Despite the absence of Herfindahl-Hirschman indices for non pipeline capacity holders, there seems every reason to suppose that their ownership of such capacity (in any given market) is not so concentrated as that of the pipelines themselves—the concentration that prompted Congress to impose rate regulation in the first place. *INGAA* at 23-24, *citing, FPC* v. *Texaco,* 417 U.S. 380, 398 n.8 (1974). 58 Regulation of Short-Term Natural Gas Transportation Services, 101 FERC ¶ 61,127, at P 12 (2002), *aff'd, American Gas Ass'n* v. *FERC,* 428 F.3d 255 (D.C. Cir. 2005). *See also Tennessee Gas Pipeline Co.,* 91 FERC ¶ 61,053 (2000), *reh'g denied,* 94 FERC ¶ 61,097 (2001), *aff'd,* 292 F.3d 831 (D.C. Cir. 2002). 59 *Id.* 50. The pipelines also maintain that not removing the price ceiling for their capacity that competes with released capacity will bifurcate the market, resulting in possibly higher prices for the uncapped release market. They argue that where a portion of the supply of a good or service is subject to price controls, and demand exceeds (the price-controlled) supply at the fixed price, the market-clearing price in the uncontrolled segment will normally be higher than if no price controls were imposed on any of the supply. Purchasers placing a lower value on the good may nevertheless be able to purchase the price-controlled supply, thereby “using up” some of the aggregate supply that would otherwise be available to purchasers placing a higher value on the good. This alters the demand-supply ratio in the uncontrolled market, leading to a higher market clearing price in that market. 51. Because of the nature of the pipeline short-term capacity, we do not think that retaining the cost of service recourse rates for that capacity will create such pricing distortions. The premise of the pipelines' argument is that continued price controls on the pipeline's sales of short-term capacity will enable shippers placing a lower value on the capacity to “use up” some of the supply, thereby reducing the amount of capacity available for purchase by shippers placing a higher value on the capacity. This premise is incorrect. Short-term pipeline capacity is sold as interruptible transportation; therefore, firm capacity held by shippers will have scheduling priority over the pipeline's interruptible capacity. In essence, pipeline interruptible service is derived from existing shippers' decision not to use or release their firm capacity or from unsold pipeline capacity. Thus, even if a shipper placing a relatively low value on the capacity has a higher position on the pipeline's queue for price-controlled interruptible transportation, it is not guaranteed that it can acquire (or “use up”) that capacity, leading to the supposed higher market clearing price. A firm shipper could always release its unused firm capacity to a replacement shipper who places a higher value on that capacity, thereby displacing the lower-value interruptible shipper. 60 60 For example, assume the maximum rate is $1.00 and there are several shippers. One shipper is willing to pay up to $1.00 for capacity, while the other shippers are willing to pay much higher rates. Even if the shipper placing the lowest value on the capacity was the highest on the pipeline's interruptible queue, it would not be able to acquire capacity at the $1.00 rate, because the other shippers could acquire released capacity by bidding above the maximum rate, thereby preventing the allocation of any interruptible service. 52. Moreover, even in the context of firm short-term pipeline capacity, the scenario posited by the pipelines would not result in higher market clearing prices as long as arbitrage exists. Any shipper with a higher queue position that acquires the pipeline capacity at the lower capped rate would have an incentive to resell that capacity to another shipper who places a higher value on the capacity, thus ensuring that the market clearing price will reflect all relevant demand. 61 61 The pipelines rely on an example in Order No. 637-B that was cited by the court in *INGAA* for the proposition that capping one part of the market will result in overall higher prices. But that example was in a very different context, a situation in which a releasing shipper in a retail access state provided released capacity at a preferential rate to one set of marketers that were obligated to serve retail load, while selling at an uncapped rate to other marketers. In the first place, this situation did not involve interruptible capacity. Moreover, unlike the case with pipeline capacity, the favored marketer could not arbitrage its lower price because it was committed to serving retail load. III. Asset Management Arrangements A. Background 53. In general, AMAs are contractual relationships where a party agrees to manage gas supply and delivery arrangements, including transportation and storage capacity, for another party. Typically a shipper holding firm transportation and/or storage capacity on a pipeline or multiple pipelines temporarily releases all or a portion of that capacity along with associated gas production and gas purchase agreements to an asset manager (commonly a marketer). The asset manager uses that capacity to serve the gas supply requirements of the releasing shipper, and, when the capacity is not needed for that purpose, uses the capacity to make releases or bundled sales to third parties. 54. While AMAs may be fashioned in a myriad of ways, there are several common components of these arrangements. First, the releasing shipper generally enters into a pre-arranged capacity release to an asset manager ostensibly at the maximum rate in order to avoid the bidding requirement. Second, the releasing shipper makes payments to the asset manager for the gas supply service performed by the asset manager for the releasing shipper. These payments may include the releasing shipper paying the asset manager:
(1)The full cost of the released capacity ( *e.g.* , maximum rate) on the theory that the asset manager is using the released capacity to transport the releasing shipper's gas supplies,
(2)a management fee for transportation-related tasks ( *e.g.* nominations, scheduling, storage injections, etc.) associated with the asset manager's obligation to provide gas supplies to the releasing shipper, and
(3)the asset manager's cost of purchasing gas supplies for the releasing shipper. Third, the asset manager generally shares with the releasing shipper the value it is able to obtain from the releasing shipper's capacity and supply contracts when those assets are not needed to supply the releasing shipper's gas needs. The asset manager obtains such value either by re-releasing the capacity or by using it to make bundled sales to third parties. The asset manager may share that value by:
(1)Paying a fixed “optimization” fee to the releasing shipper,
(2)sharing profits pursuant to an agreed-upon formula, or
(3)making its gas sales to the releasing shipper at a lower price. 55. In many instances the asset manager is chosen through a request for proposal
(RFP)process. The RFP describes the details and terms and conditions of the proposed deal and seeks bids from service providers willing to provide the requested services. The methodology for choosing a winning bidder under an RFP often reflects many different factors, including price, creditworthiness, experience, reliability, and flexibility, and it is clear that price is not always the determining factor. Some RFP procedures are state mandated, and thus, in those situations, the LDC must get approval from the state for the final agreement. 56. There are several ways in which the AMAs described above implicate the Commission's current regulations. The first relates to the Commission's prohibition against the “tying” of release capacity to any condition. As discussed above, the Commission instituted the prohibition against the tying of capacity in response to concerns that releasing shippers would attempt to add terms and conditions that would “tie the release of capacity to other compensation paid to the releasing shipper.” 62 A critical component of many AMAs is that the releasing shipper wants to be able to require the replacement shipper (asset manager) to satisfy the supply needs of the releasing shipper and take assignment of the releasing shipper's gas supply agreements as a condition of obtaining the released capacity. 62 Order No. 636-A at 30,559. 57. AMAs also have implications for the rate cap and bidding regulations. As noted, in an AMA, the releasing shipper typically enters into a prearranged deal to release all of its pipeline capacity at the maximum rate to the marketer. It is reasonable to surmise that the main reason for the maximum release rate is so the release will qualify for the exemption from bidding of all maximum rate prearranged capacity releases. 63 By avoiding the requirement to post the release for bidding, the releasing shipper can ensure that the capacity will go to the asset manager whom the releasing shipper has determined will provide the most effective asset management services. 63 18 CFR 284.8 (c)-(e). The Commission stated in Order No. 636-A that releasing shippers may include in their offers to release capacity reasonable and non-discriminatory terms and conditions to accommodate individual release situations, including provisions for evaluating bids. All such terms and conditions applicable to the release must be posted on the pipeline's electronic bulletin board and must be objectively stated, applicable to all potential bidders, and non-discriminatory. For example, the terms and conditions could not favor one set of buyers, such as end users of an LDC, or grant price preferences or credits to certain buyers. The pipeline's tariff also must require that all terms and conditions included in offers to release capacity be objectively stated, applicable to all potential bidders, and non-discriminatory. Order No. 636-A at 30,557. 58. As described above, however, the releasing shipper may agree to rebate some or all of the demand charge to the marketer so that the marketer's actual cost of obtaining the capacity is something less than the maximum rate. 64 The Commission has held that such rebates render the release to be at less than the maximum rate, thereby requiring that the prearranged release be posted for bidding. 65 64 Typically, the releasing shipper first releases its upstream assets, including pipeline capacity, storage, and gas supply, to the asset manager at cost. During the remaining term of the deal the releasing shipper purchases delivered gas at the agreed upon rate, which is usually the transportation and storage costs plus the market price of gas, plus fees and less whatever sharing of efficiency gains the asset manager is able to achieve. Sometimes fees and shared efficiency gains are reflected in some agreed upon reduction in the price of delivered gas. (The details are subject to negotiation and vary tremendously.) Because the mechanics of capacity releases often require the releasing shipper to release pipeline capacity at the maximum rate, rather than a discounted rate that the releasing shipper may actually pay to the pipeline, some other consideration must be worked into the transaction to balance the difference between the discounted rate and the maximum rate at which the release is set. 65 In *Louis Dreyfus Energy Services, L.P.,* 114 FERC ¶ 61,246 (2006), the Commission stated that: [t]he Commission has held that any consideration paid by the releasing shipper to a prearranged replacement shipper must be taken into account in determining whether the prearranged release is at the maximum rate. For instance, where the replacement shipper agrees to pay the pipeline the maximum rate for the released capacity, but the releasing shipper agrees to make a payment to the replacement shipper, the release must be treated as a release at less than the maximum rate to which the posting and bidding requirements of sections 284.8(c) through
(e)apply. *Id.* at P 15, *citing, Pacific Gas Transmission Co. and Southern California Edison Co.,* 82 FERC ¶ 61,227 (1998). 59. Moreover, as described above, some AMAs may require the asset manager (replacement shipper) to pay fees to the releasing shipper. The Commission has ruled that if the prearranged release is at the maximum rate, such additional payments violate the maximum rate ceiling on capacity releases. 66 66 *See Consumers Energy Co.,* 82 FERC ¶ 61,284, *order approving,* 84 FERC ¶ 61,240 (1998). *See also* Order No. 636-A at 30,561, where the Commission stated that capacity cannot be “resold at a rate including the pipeline marketing fee. The marketing fee is not part of the cost of transportation being released and the replacement shipper should not pay more than the maximum transportation rate for the capacity it is acquiring.” 60. Many commenters consider the applications of the Commission's policies and regulations described above as obstacles to fashioning AMAs. They request clarification of, or revisions to, the current policies and regulations to allow releasing shippers to release a package of transportation or storage capacity and gas supply contracts to a willing party who will sell the gas to the releasing shipper and take assignment of the gas purchase contracts without running afoul of the prohibition against tying. Some commenters also request that the Commission clarify that packaging gas supply and pipeline capacity, or multiple segments of capacity, as part of an asset management arrangement, would not violate the Commission's prohibition against tying. Others suggest that the tying prohibition should be eliminated altogether or that bundling of pipeline capacity and gas commodity should be allowed as long as there is a legitimate business purpose. 61. A large number of commenters advocate elimination of the bidding requirement discussed above, particularly in the AMA context. These parties argue that there is no need for posting and bidding of capacity release transactions and state that it is unduly burdensome, makes it difficult to respond quickly to market opportunities to release, and no longer makes sense in terms of the arrangements being made in today's AMAs. Others contend that the bidding requirement is redundant in instances where states require that asset managers be selected in an RFP process, which results in a chosen asset manager and one or more pre-arranged capacity release transactions. They argue that a further bidding requirement compromises the integrity and efficiency of the RFP process at the state level. Commenters also argue that there should be no bidding in the AMA context because those transactions are not suited to a single auction methodology. 62. Below, we discuss the Commission's proposal to revise the Commission's capacity release policies to give releasing shippers greater flexibility to negotiate and implement efficient AMAs. The proposal has two main parts:
(1)Modifications to the current prohibition against tying releases to other conditions; and,
(2)modifications to current bidding requirements. B. Discussion 63. The Commission proposes revisions to its prohibition on tying of release capacity and to section 284.8 of its regulations in order to facilitate the use of AMAs. Specifically, as discussed below, the Commission proposes two revisions to its capacity release policy and regulations to facilitate the use of AMAs. First, the Commission proposes to exempt AMAs from the prohibition against tying in order to permit a releasing shipper to require that the replacement shipper agree to supply the releasing shipper's gas requirements and to require the replacement shipper to take assignment of the releasing shipper's various gas supply arrangements, in addition to the released capacity. Second, the Commission proposes to eliminate the current bidding requirement for AMAs only, such that all releases to an asset manager, made in order to implement an AMA between the releasing shipper and the asset manager, are exempt from bidding. This would exempt from bidding all such releases, including those of less than one year for which we are proposing to remove the price ceiling and those of a year or more that are at rates below the continuing maximum rate for long-term capacity releases. Both of the exemptions above would also be limited to pre-arranged releases. 64. Gas markets in general, and the secondary release market in particular, have undergone significant development and change since the inception of the Commission's capacity release program. The Commission adopted the capacity release program in Order No. 636 “so that shippers can reallocate unneeded firm capacity” to those who do need it. 67 The bidding requirement and the prohibition against tying the release to extraneous conditions were all part of the Commission's fundamental goal of ensuring that such unneeded capacity would be reallocated to the person who values it the most. The Commission found that such “capacity reallocation will promote efficient load management by the pipeline and its customers and, therefore, efficient use of pipeline capacity on a firm basis throughout the year.” 68 67 Order No. 636 at 30,418. 68 *Id.* 65. Thus, the Commission developed its capacity release policies and regulations based on the assumption that shippers would release their capacity only when they were not using the capacity to serve their own needs. For example, the Commission envisioned that LDCs with long-term contracts for firm transportation service up to the peak needs of their retail customers would, during off-peak periods, release that portion of capacity not needed to serve the lower off-peak demand of its retail customers. However, this basic assumption underlying the capacity release program does not hold true in the context of AMAs, a relatively recent development in the capacity release market that the Commission had not anticipated. 66. In the AMA context, the releasing shipper is not releasing unneeded capacity, but capacity that is needed to serve its own supply function and will be so used during the term of the release. Releasing shippers in the AMA context are releasing capacity for the primary purpose of transferring the capacity to entities that they perceive have greater skill and expertise both in purchasing low cost gas supplies, and in maximizing the value of the capacity when it is not needed to meet the releasing shipper's gas supply needs. In short, AMAs entail the releasing shipper transferring its capacity to another entity which will perform the functions the Commission expected releasing shippers would do for themselves—purchase their own gas supplies and release capacity or make bundled sales when the releasing shipper does not need the capacity to satisfy its own needs. The goal of the changes proposed by the Commission herein is to make the capacity release program more efficient by bringing it in line with the realities of today's secondary gas markets. 67. The Commission finds that AMAs provide significant benefits to many participants in the natural gas and electric marketplaces and to the secondary natural gas market itself. The American Gas Association (AGA), for example, notes that AMAs are an important mechanism used by LDCs to enhance their participation in the secondary market, and states that the growth and development of AMAs may represent the largest change since the Commission's market review in the Order No. 637 proceeding. 69 AMAs allow LDCs to increase the utilization of facilities and lower gas costs. They also provide the needed flexibility to customize arrangements to meet unique customer needs. 70 One important benefit of AMAs is that they allow for the maximization of the value of capacity though the synergy of interstate capacity and natural gas as a commodity. As expressed by AGA: 69 *See* Comments of AGA at 21. 70 *See e.g.* , Comments of New Jersey Natural Gas Company at 9. [AMAs] are widely utilized and provide considerable benefits, *i.e.* lower gas supply costs generated from offsets to pipeline capacity costs and gas supply arrangements more carefully tailored to the specific requirements of the market. These benefits are generated by assembling innovative arrangements in which the unbundled components—capacity, gas supply and other services—are combined in a manner such that the total value created by the arrangement exceeds the value of the individual parts. 71 71 AGA Comments at 14. 68. AMAs are also beneficial because they provide a mechanism for capacity holders to use third party experts to manage their gas supply arrangements, an opportunity the LDCs did not have prior to Order No. 636. The time, expense and expertise involved with managing gas supply arrangements is considerable and thus many capacity holders, and LDCs in particular, have come to rely on more sophisticated marketers to take on their requirements. 72 This results in benefits to the LDCs by allowing an entity with more expertise to manage their gas supply. The ability of LDCs to use AMAs as a means of relieving the burdens of administering their capacity or supply needs on a daily basis also works to the benefit of the entire market because that burden may at times result in LDCs not releasing unused capacity. 73 72 *See, e.g.* , Comments of BG Energy Merchants, LLC at 3-4; APGA Comments at 2-3; Comments of BG Energy Merchants, LLC at 8; Comments of the Marketer Petitioners at 11; and Comments of FPL Energy LLC at 10. 73 *See* Comments of Marketer Petitioners at 11. 69. AMAs also provide LDCs and their customers a mechanism for offsetting their upstream transportation costs. AMAs often allow an LDC to reduce reservation costs that it normally passes on to its customers. They also foster market efficiency by allowing the releasing shipper to reduce its costs to the extent that its capacity is used to facilitate a third party sale that also benefits that third party (who gets a bundled product at a price acceptable to it). 70. LDCs are not the only entities that benefit from AMAs. Many other large gas purchasers, including electric generators and industrial users may desire to enter into such arrangements. 74 For example, AMAs increase the ability of wholesale electric generators to provide customer benefits through superior management of fuel supply risk, allow generators to focus their attention on the electric market, and eliminate administrative burdens relating to multiple suppliers, overheads, capital requirements and the risks associated with marketing excess gas and pipeline imbalances. 75 74 As noted by New Jersey Natural Gas Company (NJNG), “in addition to LDCs, there are many other types of large natural gas purchasers, such as electric generation facilities and large gas process industrial users, who face the same challenges with managing and optimizing their natural gas portfolios. These customers, whose core business lies outside the natural gas industry—are also likely consumers of third party portfolio management services.” NJNG Comments at 9, n. 9. 75 EPSA Comments at 4-5. 71. More importantly, AMAs provide broad benefits to the marketplace in general. They bring diversity to the mix of capacity holders and customers that are served through the capacity release program, thus enhancing liquidity and diversity for natural gas products and services. AMAs result in an overall increase in the use of interstate pipeline capacity, as well as facilitating the use of capacity by different types of customers in addition to LDCs. 76 AMAs benefit the natural gas market by creating efficiencies as a result of more load responsive gas supply, and an increased utilization of transportation capacity. 76 With regard to the advantages of diversity among shippers, the EPSA provides as an example the situation where an LDC looking to shed underutilized summer capacity may not have the capability to identify and contract with an electric generator that needs summer gas, whereas an asset manager would likely be much better equipped to handling the logistics and risks associated with such an off system sale by the LDC. 72. AMAs further bring benefits to consumers, mostly through reductions in consumer costs. AMAs provide in general for lower gas supply costs, resulting in ultimate savings for end use customers. The overall market benefits described above also inure to consumers. These benefits have been recognized by state commissions and the National Regulatory Research Institute. 77 77 *See* Comments of BG Energy Merchants, LLC at 8-9. 73. The Interstate Natural Gas Association of America ( *INGAA* ) agrees with the Marketer Petitioners and others that the Commission “should adapt its regulations to facilitate efficient and innovative marketing of capacity that have developed since Order No. 636,” provided the Commission remains guided by the “principle of full transparency of the terms of such capacity release arrangements.” 78 78 *INGAA* Comments at 3. 74. Based on this industry-wide support, the Commission believes that AMAs are in the public interest because they are beneficial to numerous market participants and the market in general. Accordingly, the Commission is proposing changes to its policies and regulations to facilitate the utilization and implementation of AMAs. 1. Tying 75. As noted above, in Order No. 636-A, the Commission established a prohibition against the tying of capacity release to conditions unrelated to acquiring transportation capacity, where it stated that: [t]he Commission reiterates that *all* terms and conditions for capacity release must be posted and non-discriminatory and must relate solely to the details of acquiring transportation on the interstate pipelines. Release of capacity cannot be tied to any other conditions. Moreover, the Commission will not tolerate deals undertaken to avoid the notice requirements of the regulations. Order No. 636-A at 30, 559. 76. The Commission established the prohibition against tying in response to commenters' concerns that releasing shippers would attempt to add terms and conditions that would “tie the release of capacity to other compensation paid to the releasing shipper.” The examples of illicit tying given by the commenters included an LDC requiring a potential replacement shipper to pay a certain price for local gas transportation service or a producer conditioning the release of capacity on the purchase of the producer's gas. 79 Since then, the Commission has granted several waivers of the prohibition against tying, 80 but only where an entity sought the waiver to exit the natural gas transportation business. 81 79 Order No. 636-A at 30,559. 80 *Tennessee Gas Pipeline Co.,* 113 FERC ¶ 61,106 (2005); *Northwest Pipeline Corp. and Duke Energy Trading and Marketing,* 109 FERC ¶ 61,044 (2004). 81 *See Louis Dreyfus Energy Services, L.P.,* 114 FERC ¶ 61,246 at 61,780 (2006), denying a waiver request. 77. Some commenting parties claim that the Commission's recent orders waiving certain of its capacity release requirements in specific situations have increased uncertainty regarding the use of pre-arranged capacity release transactions to implement portfolio management services. They state that the language in these orders suggests that combining gas supply and pipeline capacity, or packaging multiple segments of capacity together, violates the prohibition against tying, absent a prior waiver of the Commission's capacity release rules. 78. The Commission recognizes that the broad language in Order No. 636-A setting forth the prohibition against tying, as well as the Commission's subsequent rulings in individual cases, have raised a concern that the types of transactions proponents of AMAs want to implement may run afoul of the current policy. For example, capacity releases made for the purpose of implementing an AMA generally include a condition that the asset manager taking the release will supply the gas requirements of the releasing shipper. The release may also require the asset manager to take assignment of the releasing shipper's gas supply contracts. However, such conditions could be considered to go beyond “the details of acquiring transportation on the interstate pipelines,” because these conditions relate to the purchase and sale of the gas commodity. 79. The Commission thus proposes a partial exemption of AMAs from the prohibition against tying in order to permit a releasing shipper in a pre-arranged release to require that the replacement shipper
(1)agree to supply the releasing shipper's gas requirements and
(2)take assignment of the releasing shipper's gas supply contracts, as well as released transportation capacity on one or more pipelines 82 and storage capacity with the gas currently in storage. This exemption would allow firm shippers to pre-arrange releases of capacity to an asset manager (replacement shipper) along with upstream assets and gas purchase agreements in a bundled transaction where the capacity being released will be used to meet that party's gas supply requirements. In addition, the proposed exemption would be limited to releases to an asset manager as part of establishing an AMA. Thus, the asset manager would be subject to the policy against tying when it makes subsequent re-releases to third parties during the term of the AMA. For purposes of this exemption and the proposed exemption from bidding discussed in the next section, a release transaction made in the context of implementing an AMA will be any pre-arranged capacity release that includes a condition that the releasing shipper may, on any day, call upon the replacement shipper to deliver a volume of gas equal to the daily contract demand of the released capacity. This proposed definition is discussed further below. 82 Commission policy already permits a releasing shipper to require a replacement shipper to take a release of aggregated capacity contracts on one or more pipelines, at least in some circumstances. *See* Order No. 636-A at 30,558 and n. 144. 80. As discussed above, AMAs provide recognizable benefits to market participants and the marketplace overall in terms of more load-responsive use of gas supply, greater liquidity, increased utilization of transportation capacity and the overall efficiencies these arrangements bring to the marketplace. However, AMAs require that the releasing shipper be able to release both its capacity and its natural gas supply arrangements in a single package. The very purpose of the transaction is frustrated if the releasing shipper cannot combine the supply and capacity components of the deal. This tying is meant to ensure that the released capacity will continue to be used to support the releasing shipper's acquisition of needed gas supplies. Based on the fact that AMAs provide benefits to the market, and that tying of capacity and supply is necessary to implement beneficial AMAs, it seems reasonable to allow the tying conditions discussed above in the AMA context in order to foster and facilitate the use and implementation of such arrangements. The partial exemption of AMAs proposed here will foster maximization of the interstate pipeline grid and enhance competition. 81. While the Commission is proposing changes to its prohibition against tying in order to facilitate AMAs, the Commission is not adopting the proposals of some commenters that the restriction against tying be eliminated altogether. 83 The Commission's primary goal in establishing the capacity release program was to ensure that transfers of interstate pipeline capacity from one shipper to another are made in a not unduly discriminatory or preferential manner to the person placing the highest value on the pipeline capacity. If a shipper ties a release of unneeded capacity to matters that are unrelated to the details of acquiring that transportation capacity, the capacity may not go to the person who values it the most. The comments on this issue have not persuaded the Commission that, outside the AMA context, release conditions unrelated to the details of acquiring transportation service provide significant benefits to the natural gas market as a whole similar to those provided by AMAs. Therefore, when a shipper releases excess capacity that it does not need for the purpose for which it was originally acquired, the Commission's original concerns underlying the prohibition against tying still apply. The Commission continues to believe that such excess capacity should be allocated to the shipper who values it the most, regardless of whether the releasing shipper has some private business reason why it might prefer the replacement shipper to use its unneeded capacity in some particular manner. Thus, based on the distinguishing and mitigating factors of AMAs as related to the reasons underlying the prohibition against tying, the Commission is only proposing to modify its prohibition against tying with respect to pre-arranged releases to implement AMAs, and not all capacity releases. 83 *See e.g.* , Comments of Nstar at 7 (LDCs should be allowed to link capacity to whatever it wants to make an “effective” package); Comments of Direct Energy Services, LLC at 6 (Commission should permit market participants to offer whatever bundled transactions they perceive to be in their best interests). 82. However, the Commission requests comment on whether it should clarify its prohibition concerning tying in one additional circumstance, which is not related to the AMA context. Some commenters assert that the Commission should facilitate the release of storage capacity by permitting a releasing shipper to
(1)require a replacement shipper to take assignment of any gas that remains in the released storage capacity at the time the release takes effect and/or
(2)require a replacement shipper to return the storage capacity to the releasing shipper at the end of the release with a specified amount of gas in storage. 84 For example, some LDC commenters point out that they rely on having a certain level of gas in storage by the end of the off-peak summer injection season in order to be able to serve their customers during the peak winter season. 85 Therefore, while they may desire to release storage capacity at times during the off-peak summer period, gas must be injected into the storage capacity at a rate that will permit the LDC to have its required amount of gas in storage by the end of the injection period. If an LDC could require the replacement shipper to return the storage capacity with the required amount of gas in storage at the end of the release, it would be able to release more storage capacity than it can currently. The Commission requests comment on whether it should clarify its prohibition on tying to allow a releasing shipper to include conditions in a storage release concerning the sale and/or repurchase of gas in storage inventory. 84 *See e.g.* Comments of AGA at 24. 85 *Id. See also* Comments of Keyspan at 36. 2. The Bidding Requirement 83. The Commission's current regulations require capacity release transactions to be posted for competitive bidding, unless the transactions are at the maximum rate or are for 31 days or less. 86 The Commission's principal goal in requiring release transactions to be posted for bidding was to ensure that interstate transportation capacity would be allocated to those placing the highest value on obtaining that capacity and to prevent discriminatory allocation of interstate capacity at prices below the market price. The regulations also allow the releasing shipper to enter into a “pre-arranged” release with a designated replacement shipper before any posting for bidding. 87 Prearranged releases are subject to the same bidding requirements as other releases; however, the prearranged replacement shipper will receive the capacity if it matches the highest bid submitted by any other bidder. 88 In Order 636-A, the Commission rejected requests for a general exception to the bidding process for all pre-arranged deals. 89 86 18 CFR § 284.8(h). 87 18 CFR § 284.8(b). 88 18 CFR § 284.8(e). 89 Order No. 636-A at 30, 555. 84. As noted, the Commission has received a number of comments suggesting that it eliminate the requirement for competitive bidding for capacity releases, especially in the AMA context. LDCs in particular comment that bidding is unduly burdensome and often results in time consuming procedures that have little practical benefit. They maintain that bidding adds uncertainty to the process because it creates a risk for the replacement shipper that it will be unable to acquire capacity at the price it expected, and thus bidding can prevent parties from negotiating mutually beneficial transactions. Others comment that the delay caused by bidding makes it difficult to respond to market opportunities to release, and thus bidding no longer makes sense in today's marketplace. Some claim that given the development of the natural gas market and the natural economic incentive to release at the highest price, the competitive bidding requirement is no longer necessary to achieve allocative efficiency. 85. Commenters assert that the inefficiencies of the bidding process pose substantial obstacles to successful releases to implement AMAs. Bidding and matching often prevent timely closing of AMA transactions involving aggregation of capacity and supply or aggregation of capacity on multiple pipelines. This can result in preventing willing buyers and sellers attempting to reach agreements that are in their respective best interests from consummating deals. Commenters also note that AMAs usually involve complex contractual structures with a variety of valued pieces. These deals are often negotiated at arms' length, and thus, requiring that they be made subject to bidding creates a risk that one aspect of the deal could be lost thus dooming the entire transaction. Because AMAs often involve extensive negotiations that lead to pre-arranged deals, the releasing party wants to be sure that the replacement shipper with whom it struck the deal is the one to get it, on the terms discussed during negotiations. Again, a bidding requirement puts that goal at risk. 86. Proponents of eliminating bidding for AMAs also point out that when an entity wishes to use a asset manager in the interest of efficient use of gas supply and pipeline capacity assets, it is often required by state regulation to select the asset manager though a competitive RFP process. This process allows entities that are interested in managing the assets to submit a bid to do so, subject to the terms and conditions of the RFP. This process results in a chosen asset manager for one or more pre-arranged capacity releases. The commenters state that, if this same pre-arranged deal is subject to a further bidding process under the Commission's regulations, then that second process is redundant, and compromises the integrity and efficiency of the state mandated competitive process that has already been completed. 87. The Commission proposes to exempt pre-arranged releases to implement AMAs from the bidding requirements of section 284.8 of its regulations, such that pre-arranged releases made to asset managers in order to implement AMAs will not be subject to competitive bidding. 90 In light of its experience with capacity releases and the comments discussed above, the Commission has reconsidered the need for bidding in the AMA context. It appears that at least in the AMA context, the bidding requirement creates an unwarranted obstacle to the efficient management of pipeline capacity and supply assets. 90 For the purposes of this exemption the Commission will use the same definition as discussed in the tying section above, and explained more fully below, for identifying releases eligible for the exemption. 88. All capacity releases made to implement AMAs are pre-arranged because it is important that a releasing shipper be able to use the asset manager of its choice to effectuate the components of the agreement. Unlike a normal capacity release where the releasing shipper is often shedding excess capacity and has no intention of an ongoing relationship with the replacement shipper, in the AMA context the identity of the replacement shipper is often critical because it will manage the releasing shipper's portfolio for some time into the future. During the process of choosing an asset manager (often an RFP process), the releasing shipper considers a number of factors, including experience in managing capacity and gas sales, experience with a particular pipeline or area of the country, flexibility, creditworthiness and price. Because the asset manager will manage the releasing shipper's gas supply operations on an ongoing basis, it is critical that the releasing shipper be able to release the capacity to its chosen asset manager. Requiring releases made in order to implement an AMA to be posted for bidding would thus interfere with the negotiation of beneficial AMAs, by potentially preventing the releasing shipper from releasing the capacity to its chosen asset manager. The Commission concludes that the benefits of facilitating AMAs outweigh any disadvantages in exempting such releases from bidding. 89. While the Commission is proposing to exempt AMAs from the capacity release bidding requirements, AMAs will remain subject to all existing posting and reporting requirements. Pipelines will still be obligated to provide notice of the release pursuant to 18 CFR 284.8(d). The details of the release transaction must also be posted on the pipeline's Internet Web site under 18 CFR 284.13(b), including any special terms and conditions applicable to the capacity release transaction. Moreover, the pipeline's index of customers must include the name of any agent or asset manager managing a shipper's transportation service and whether that agent or asset manager is an affiliate of the releasing shipper. 91 Therefore, the Commission's goals of disclosure and transparency will still be met. 91 18 CFR 284.13(c)(2)(viii) and 284.13(c)(2)(ix). 90. The Commission is not proposing at this time to modify its existing bidding requirements with respect to capacity releases made outside the AMA context (including releases the asset manager makes to third parties). As discussed, the Commission originally adopted the bidding requirements in order to ensure that releases are made in a non-discriminatory manner to the person placing the highest value on the capacity. The comments received by the Commission show broad support from all segments of the industry for modifying the bidding requirements in order to facilitate AMAs, which most commenters believe provide significant benefits to the natural gas market. However, the comments do not reflect a similar level of support for removing the bidding requirements altogether. In addition, there has been no showing that non-AMA prearranged releases provide benefits of the type we have found justify exempting AMA releases from bidding. Moreover, in the typical non-AMA pre-arranged release, price is the primary factor, and therefore the releasing shipper should generally be indifferent as to the identity of the replacement shipper so long as it receives the highest possible price for its release. Therefore, the Commission does not presently have information showing that, outside the AMA context, the existing bidding requirements hinder beneficial developments in the market or no longer serve their original purpose. 3. Definition of AMAs 91. In light of the proposed exemptions for AMAs discussed above, the Commission proposes to define a capacity release that is made as part of an AMA, and thus would qualify for the exemptions, to be: Any pre-arranged release that contains a condition that the releasing shipper may, on any day, call upon the replacement shipper to deliver to the releasing shipper a volume of gas equal to the daily contract demand of the released transportation capacity. 92 If the capacity release is a release of storage capacity, the asset manager's delivery obligation need only equal the daily contract demand under the release for storage withdrawals. 92 It is the Commission's intention that with regard to an AMA involving several separate releases to the asset manager, the delivery obligation would be applied separately to each release, not on cumulative basis to the whole AMA. For example if an LDC has capacity of 100,000 Dth on both upstream Pipeline A and downstream Pipeline B, the asset manager could comply with the proposed delivery condition by shipping the same 100,000 Dth over both Pipeline A and Pipeline B. 92. In developing a definition of AMA releases, the Commission seeks to balance two concerns. First, because the Commission is proposing that the exemptions from bidding and the prohibition against tying apply only in the context of AMAs, the Commission seeks a definition of the eligible releases that is limited to those releases that are made as part of a *bona fide* AMA. On the other hand, because the purpose of the proposed exemption is to facilitate AMAs, the Commission wants to avoid a definition that is so narrow it would limit the types of AMAs which shippers and asset managers may negotiate and thus discourage efficient and innovative arrangements. 93. The proposed definition focuses on what the Commission understands to be the fundamental purpose of AMAs: That the asset manager will use the released capacity to deliver gas supplies to the releasing shipper. The Commission believes that the requirement that the replacement shipper contractually commit itself to deliver to the releasing shipper, on any day, gas supplies equal to the daily contract demand of the released capacity should achieve the goal of exempting only AMA transactions from bidding and the prohibition against tying. Further, because all AMAs are done as pre-arranged deals, the proposed definition requires that the release be pre-arranged. The Commission requests comment on whether other conditions should be imposed on the eligible releases in order to ensure that the proposed exemptions are limited to AMAs. 94. The Commission also believes that the proposed definition is sufficiently flexible that it should not interfere with the development of efficient and beneficial AMAs. The Commission recognizes that a shipper may desire to enter into an AMA for the purpose of obtaining only a portion of its required gas supplies. Or it may desire to enter into multiple AMAs with different asset managers. The proposed definition does not prevent such arrangements, since it contains no requirement that the releasing shipper obtain any particular percentage of its gas supplies pursuant to a particular AMA. The only requirement is that the asset manager commits itself to providing gas supplies up to the contract demand of the released contract. In addition, while the Commission expects that the released capacity will be used by the asset manager to ship gas supplies to the releasing shipper, the proposed definition does not require that the asset manager make all its deliveries to the releasing shipper over the released capacity. 95. The Commission also is not proposing to limit the types of entities that can use AMAs and take advantage of the exemptions from bidding and the prohibition against tying, provided the criteria stated above are met. The Commission recognizes that electric generators and industrial end-users may make use of AMAs, and thus the exemption is not limited to LDCs utilizing AMAs. 96. Finally, the Marketer Petitioners, in their original request for clarification, suggested that gas sellers may desire to use AMAs. However, as proposed, the definition of AMA does not include such arrangements, unless the replacement shipper has an obligation to re-sell to the releasing shipper equivalent quantities of natural gas. The Commission requests comments on whether it should expand the definition of AMAs eligible for the partial exemptions from the prohibition on tying and bidding to include gas marketing AMAs. Commenters should also address the question of how the Commission would distinguish a gas marketing AMA eligible for such an exemption from other release transactions. IV. State Mandated Retail Choice Programs 97. Section 284.8(h)(1) of the Commission's current capacity release regulations exempt prearranged releases of more than 31 days from bidding only if they are at the “maximum tariff rate applicable to the release.” States with retail open access gas programs (in which customers can buy gas from marketers rather than LDCs) have relied on this “safe harbor” exemption from bidding in structuring their programs. Specifically, a key component of most such programs is a provision for the LDC to make periodic releases, at the maximum rate, of its interstate pipeline capacity to the marketers participating in the program. The marketers then use the released capacity to transport the gas supplies that they sell to their retail customers. The exemption from bidding ensures that the LDC's capacity is transferred only to the marketers participating in the state retail unbundling program and is not obtained by non-participating third parties. 98. However, the Commission's proposal to lift the price ceiling for releases of one year or less would have the effect of eliminating the bidding exemption for releases with terms of between 31 days and one year. That is because there would no longer be a maximum tariff rate applicable to such releases. Moreover, in this NOPR, the Commission is proposing an additional exemption from bidding only for releases made in the context of an AMA, and releases made as part of a retail unbundling program would not qualify for that exemption as it is currently proposed. As a result, absent some additional modification of the regulations concerning bidding, LDCs would have to post for bidding all releases of between 31 days and one year that are made as part of a state retail unbundling program. This would mean that the marketers participating in the program could only obtain the capacity if they matched any third party bid for the capacity. 99. In Order Nos. 637-A and 637-B, 93 the Commission denied the request by LDCs for a blanket exemption from bidding of all capacity releases made as part of state retail unbundling program. The Commission explained that, with the price ceiling removed, posting and bidding was necessary to protect against undue discrimination and ensure that the capacity is properly allocated to the shipper placing the greatest value on the capacity. The Commission nevertheless sought to accommodate the state retail access programs by providing that, if an LDC considered an exemption from bidding essential to further a state retail unbundling program, the LDC, together with its state regulatory agency, could request a waiver of the bidding regulation to allow the LDC to consummate pre-arranged capacity release deals at the maximum rate. However, the Commission stated that, if the LDC made such a request, it had to be prepared to have all its capacity release transactions, including those not made as part of the state retail unbundling program, subject to the maximum rate. 93 Order No. 637-A at 31,569; Order No. 637-B, 92 FERC at 61,163. 100. On appeal of Order No. 637, the court in *INGAA* affirmed the Commission's refusal to grant a blanket waiver of the bidding requirement for releases made as part of a state retail unbundling program. The court stated that, absent a showing that the retail unbundling programs are structured as largely to moot the Commission's concern about discrimination, the Commission's caution in granting a blanket waiver was reasonable. However, the court remanded the issue of the reasonableness of the condition that an LDC seeking a waiver must agree to subject all its releases to the maximum rate. The court stated that the requirement of state regulatory endorsement of the requested waiver seemed to give the Commission an avenue to verify the discrimination risk. The Commission did not address this issue in its order on remand, because the price ceiling had been re-imposed by the time of the remand order, thus rendering the issue moot. 101. Several commenters in the instant proceeding again assert that, if the Commission removes the price ceiling on capacity release, the Commission should exempt all capacity releases to retail choice providers, that is, releases that are part of a state approved unbundling program, from the Commission's bidding requirements. AGA and several individual member LDCs, for example, contend that the Commission recognized the value of retail choice programs to the development of a competitive natural gas market by providing a waiver procedure for such releases in Order No. 637-A. AGA argues that the Commission should now take the next step to allow an LDC to release capacity to a retail choice provider at the rate paid by the LDC without bidding and without the need to seek a waiver from the Commission, particularly if the Commission removes the price ceiling on capacity release. 94 It reasons that releases to retail choice providers are not releases of excess capacity but of capacity needed to better serve their core markets or to comply with state requirements. The capacity is still being used for the purpose it was purchased and the intention is to allow the LDC's retail customers to obtain the benefit of the LDCs firm pipeline entitlements and rates. AGA and other LDC commenters assert that requiring the LDCs to seek a waiver, as the Commission did in Order No. 637, adds a cumbersome layer of regulation. 94 *See* AGA Comments at 47. 102. Because the state programs generally allow choice providers to step into the shoes of the LDC, commenters suggest that there is little chance for undue discrimination or exercise of market power. Moreover, in order for retail customers to benefit from the discounted or negotiated rates that the LDC may have been able to obtain from the pipeline, the LDC needs to be able to release it to the retail choice provider at that rate. According to the AGA, if a shipper obtained capacity in the primary market under conditions that do not support the pipeline's maximum rate, the Commission's goal of maximizing allocative efficiency is hampered by requiring LDCs to sell at maximum rate to retail choice providers. 103. The Commission proposes to address the issue of bidding on releases of a year or less by LDCs participating in a state retail unbundling program in a manner consistent with its actions in Order No. 637, that is, the Commission will permit such LDCs to request a waiver of the bidding regulation to allow the LDC to consummate short-term pre-arranged capacity release deals necessary to implement retail access at the maximum rate without bidding. Allowing this limited waiver of the bidding requirement for capacity releases made as part of a state unbundling program would enable retail access programs to continue to operate with the same exemption from bidding which they now have. Adopting the more cautious approach of case-by-case waivers, rather than granting a blanket waiver, is reasonable in light of the court's finding that even with state unbundling programs the potential for discrimination still exists. 104. As part of this proposal, however, the Commission will not require that an LDC seeking such a waiver agree to subject all of its short-term capacity releases to the applicable maximum rate. Any of an LDC's capacity releases that are outside of its state-approved retail choice program (and not made as part of an AMA as discussed in the previous section) will remain subject to bidding, which should provide adequate protection against discrimination. Further, it is reasonable to allow different treatment of releases made to an approved retail choice provider, because the capacity released for that purpose will continue to be used to serve the LDC's customers for whom the capacity was originally contracted to serve. The Commission's proposal here would also remedy the court's concern in *INGAA* with the requirement that LDCs seeking waivers agree to subject all of their releases to the maximum rate. 105. While the Commission is not proposing a blanket exemption from bidding for releases made by LDCs under state retail choice programs, the Commission requests comment on whether such releases should be treated as similar to releases made as part of an AMA and thus accorded the same full exemption from bidding. As with releases in the AMA context, LDC releases in the retail unbundling context are not releases of excess capacity to the open market but of capacity needed to serve the original customers for whom the LDC purchased the capacity. In the state unbundling context, the LDC must release and allocate capacity to a marketer that an end use customer may choose as its supplier. Thus, the capacity may be treated as still being used for the purpose it was purchased and as it was originally intended. However, the Commission seeks comment on whether such releases should be exempt from the bidding requirement. Should the Commission find that such releases provide similar benefits to the market as releases which are made as part of establishing an AMA? Do such releases entail a greater potential for undue discrimination than releases made as part of establishing an AMA? V. Shipper-Must-Have-Title Requirement 106. The Commission will retain its shipper-must-have-title requirement. While the shipper-must-have-title requirement had its original roots in individual pipeline proceedings to implement Order No. 436 non-discriminatory open-access transportation, it has become the foundation for the Commission's capacity release program. 95 The purpose of the shipper-must-have-title requirement is to require that all transfers of capacity from one shipper to another take place through the capacity release program. Without the shipper-must-have-title requirement, “capacity holders could simply transport gas over the pipeline for another entity,” 96 without complying with any of the requirements of the capacity release program. Thus, the capacity holder could charge the other entity any rate it desired for this service, and the capacity holder would not need to post the arrangement with the other entity for bidding to permit others to obtain the service at a higher rate. 95 As the Commission explained in Order No. 637-A, “the capacity release rules were designed with [the shipper-must-have-title] policy as their foundation,” because without this requirement “capacity holders could simply transport gas over the pipeline for another entity.” Order No. 637 at 31,300. 96 Order No. 637 at 31,300. 107. By contrast, under the shipper-must-have-title requirement, an assignment of capacity from one shipper to another may only be accomplished through the capacity release program. As discussed above, under the capacity release program, any release must comply with any applicable price ceiling and bidding requirements. In addition, the replacement shipper must contract with the pipeline, and section 284.8(d) of the Commission's regulations requires the pipeline to post information regarding the replacement shipper's contract, including any special terms and conditions. This provides transparency in the secondary market by enabling the Commission and all interested parties to monitor the capacity release market. 108. The shipper-must-have-title requirement remains an important transparency tool given the proposals discussed above and the Commission's decision to maintain the price ceiling for long-term capacity releases and to require bidding for capacity releases outside the context of AMAs. If the Commission were to eliminate the shipper-must-have-title requirement, shippers could easily evade the continuing requirements of the capacity release program in the manner discussed above. In essence, participation in the capacity release program would become voluntary and shippers desiring to make long-term releases at more than the maximum rate or to make prearranged non-maximum rate deals without bidding could simply make private arrangements outside of the capacity release program. 109. The shipper-must-have-title requirement ensures transparency in the capacity market. Because replacement shippers must in all instances enter into contracts with the pipeline, the Commission can ensure transparency by requiring the pipelines to report the essential terms of the replacement shippers' contracts. Without the rule, the Commission would have to develop separate reporting requirements for shippers who make private arrangements to ship gas for other entities. It is more efficient for the Commission and the marketplace to monitor and enforce the reporting requirements on the one hundred or so interstate pipelines rather than to enforce them on thousands of shippers. 110. Finally, in the Commission's opinion, the shipper-must-have-title requirement does not cause undue administrative burdens. Through the Commission's adoption of the North American Energy Standards Board's (NAESB) standards, all pipelines must provide a title transfer tracking service at no charge as part of their nomination process, so that any title transfers required by the shipper-must-have-title requirement are easily accomplished. 97 97 In this context the shipper-must-have-title requirement accomplishes on the gas side much the same purpose as “e-tagging” title transfers on the electric side. VI. Regulatory Requirements A. Information Collection Statement 111. Office of Management and Budget
(OMB)regulations require OMB to approve certain information collection requirements imposed by agency rule. 98 Comments are solicited on the Commission's need for this information, whether the information will have practical utility, the accuracy of provided burden estimates, ways to enhance the quality, utility and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. 98 5 CFR 1320.11. *Title:* FERC-549B, Gas Pipeline Rates: Capacity Information. *Action:* Proposed Information Collection. *OMB Control No.:* 1902-0169B. 112. The applicant shall not be penalized for failure to respond to this collection of information unless the collection of information displays a valid OMB control number. *Respondents:* Business or other for profit. *Frequency of Responses:* On occasion. *Necessity of Information:* The proposed rule would permit market based pricing for short-term capacity releases and facilitate AMAs by relaxing the Commission's prohibition on tying and its bidding requirements for certain capacity releases. As noted earlier in the NOPR, elimination of the price ceiling for short-term capacity releases will provide more accurate price signals concerning the market value of pipeline capacity. Further, implementation of AMAs will make the capacity release program more efficient as releasing shippers can transfer their capacity to entities with greater expertise both in purchasing low cost gas supplies, and in maximizing the value of the capacity when it is not needed to meet the releasing shipper's gas supply needs. Such arrangements free up the time, expense and expertise involved with managing gas supply arrangements and serve as a means of relieving the burdens of administering their capacity or supply needs. 113. Although the Commission is taking the steps to enhance competition in the secondary capacity release market and increase shipper options, it is not modifying its existing reporting requirements in section 284.13 of its regulations. The current burden estimates for FERC-549B will be unaffected by this rule and for that reason, the Commission will send a copy of this proposed rule to OMB for informational purposes only. B. Environmental Analysis 114. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 99 The Commission has categorically excluded certain actions from these requirements as not having a significant effect on the human environment. 100 The actions proposed to be taken here fall within categorical exclusions in the Commission's regulations for rules that are corrective, clarifying or procedural, for information gathering, analysis, and dissemination, and for sales, exchange, and transportation of natural gas that requires no construction of facilities. 101 Therefore an environmental review is unnecessary and has not been prepared in this rulemaking. 99 Order No. 486, Regulations Implementing the National Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs., Regulation Preambles 1986-1990 ¶ 30,783 (1987). 100 18 CFR 380.4 (2007). 101 *See* 18 CFR 380.4(a)(2)(ii), 380.4(a)(5) and 380.4(a)(27) (2007). C. Regulatory Flexibility Act 115. The Regulatory Flexibility Act of 1980
(RFA)102 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The Commission is not required to make such an analysis if proposed regulations would not have such an effect. 103 Under the industry standards used for purposes of the RFA, a natural gas pipeline company qualifies as “a small entity” if it has annual revenues of $6.5 million or less. Most companies regulated by the Commission do not fall within the RFA's definition of a small entity. 104 102 5 U.S.C. 601-612. 103 5 U.S.C. 605(b)(2000). 104 5 U.S.C. 601(3), *citing* to Section 3 of the Small Business Act, 15 U.S.C. 623 (2000). Section 3 defines a “small-business concern” as a business which is independently owned and operated and which is not dominant in its field of operation. 116. The procedural modifications proposed herein should have no significant negative impact on those entities, be they large or small, subject to the Commission's regulatory jurisdiction under the NGA. As previously noted in the NOPR, removal of the price ceiling will enable releasing shippers to offer competitively-priced alternatives to the pipelines' negotiated rate offerings. A small entity that participates in the market will no longer be constrained by a ceiling price for its unused capacity. Further, removal of the ceiling also permits more efficient utilization of capacity by permitting prices to rise to market clearing levels, allowing those entities that place the highest value on the capacity to obtain it. Accordingly, the Commission certifies that this notice's proposed regulations, if promulgated, will not have a significant economic impact on a substantial number of small entities. D. Comment Procedures 117. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due 45 days from publication in the **Federal Register** . Comments must refer to Docket No. RM08-1-000, and must include the commenter's name, the organization they represent, if applicable, and their address in their comments. 118. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at *http://www.ferc.gov.* The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing. 119. Commenters that are not able to file comments electronically must send an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. 120. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters. E. Document Availability 121. In addition to publishing the full text of this document in the **Federal Register** , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( *http://www.ferc.gov* ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426. 122. From FERC's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 123. User assistance is available for eLibrary and the FERC's Web site during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or e-mail at *ferconlinesupport@ferc.gov,* or the Public Reference Room at
(202)502-8371, TTY (202)502-8659. E-mail the Public Reference Room at *public.referenceroom@ferc.gov* . List of Subjects in 18 CFR Part 284 Incorporation by reference, Natural gas, Reporting and recordkeeping requirements. By direction of the Commission. Nathaniel J. Davis, Sr., Deputy Secretary. In consideration of the foregoing, the Commission proposes to amend part 284, Chapter I, Title 18, *Code of Federal Regulations,* to read as follows: PART 284—CERTAIN SALES AND TRANSPORTATION OF NATURAL GAS UNDER THE NATURAL GAS POLICY ACT OF 1978 AND RELATED AUTHORITIES 1. The authority citation for part 284 continues to read as follows: Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352; 43 U.S.C. 1331-1356. 2. Amend § 284.8 as follows: a. In paragraph (e), remove the words “(not over the maximum rate)”. b. Remove paragraph (i). c. Add two sentences to the end of paragraph
(b)and revise paragraph
(h)to read as follows. § 284.8 Release of firm capacity on interstate pipelines.
(b)* * * The rate charged the replacement shipper for a release of capacity for more than one year may not exceed the applicable maximum rate. No rate limitation applies to the release of capacity for a period of one year or less. (h)(1) A release of capacity by a firm shipper to a replacement shipper for any period of 31 days or less, a release of capacity for more than one year at the maximum tariff rate, or a release to an asset manager as defined in paragraph (h)(3) of this section need not comply with the notification and bidding requirements of paragraphs
(c)through
(e)of this section. Notice of a firm release under this paragraph must be provided on the pipeline's electronic bulletin board as soon as possible, but not later than forty-eight hours, after the release transaction commences.
(2)When a release of capacity for 31 days or less is exempt from bidding requirements under paragraph (h)(1) of this section, a firm shipper may not roll-over, extend, or in any way continue the release without complying with the requirements of paragraphs
(c)through
(e)of this section, and may not re-release to the same replacement shipper under this paragraph at less than the maximum tariff rate until 28 days after the first release period has ended.
(3)A release to an asset manager exempt from bidding requirements under paragraph (h)(1) of this section is any prearranged capacity release that contains a condition that the releasing shipper may, on any day, call upon the replacement shipper to deliver to the releasing shipper a volume of gas equal to the daily contract demand of the released transportation capacity or the daily contract demand for storage withdrawals. [FR Doc. E7-22952 Filed 11-23-07; 8:45 am] BILLING CODE 6717-01-P 72 226 Monday, November 26, 2007 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request November 20, 2007. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8958. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Food and Nutrition Service *Title:* Annual Report of State Revenue Matching. *OMB Control Number:* 0584-0075. *Summary Of Collection:* The National School Lunch Program is mandated by the National School Lunch Act, 42 U.S.C. 1751 and the Child Nutrition Act of 1966, 42 U.S.C. 1771. The Food and Nutrition Service
(FNS)administer the National School Lunch Program. Under the program, States are required to match 30 percent (or a lesser percent based on per capital income) of the Federal funds made available for the School Lunch Program. Annually, the State agencies are required to report to FNS on FNS-13, Annual Report of State Revenue Matching, the total funds used in order to receive Federal reimbursement for meals served to eligible participants. *Need and Use of the Information:* The information collected allows FNS to monitor State compliance with the revenue matching requirement. Without the information, States may receive Federal funds, which are not warranted. Monitoring the matching of State funds is essential to preventing fraud, waste, and abuse in the National School Lunch Program. *Description of Respondents:* State, Local, or Tribal Government. *Number of Respondents:* 57. *Frequency of Responses:* Reporting: Annually. *Total Burden Hours:* 4,560. Ruth Brown, Departmental Information Collection Clearance Officer. [FR Doc. E7-22940 Filed 11-23-07; 8:45 am] BILLING CODE 3410-30-P DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request November 20, 2007. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8681. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Grain Inspection, Packers & Stockyards Administration *Title:* Regulations and Related Reporting and Recordkeeping Requirements—Packers and Stockyards Programs. *OMB Control Number:* 0580-0015. *Summary of Collection:* The Grain Inspection, Packers and Stockyards Administration (GIPSA) administers the provisions of the Packers and Stockyards Act of 1921 (7 U.S.C. 181-229.) and the regulations under the Act. The Act is designed to protect the financial interests of livestock and poultry producers engaged in commerce of livestock and live poultry sold for slaughter. It also protects members of the livestock and poultry marketing, processing, and merchandising industries from unfair competitive practices. GIPSA will collect information using several forms. *Need and Use of the Information:* GIPSA will collect information to monitor and examine financial, competitive and trade practices in the livestock, meatpacking, and poultry industries. Also, the information will help assure that the regulated entities do not engage in unfair, unjustly discriminatory, or deceptive trade practices or anti-competitive behavior. *Description of Respondents:* Business or other for-profit. *Number of Respondents:* 21,414. *Frequency of Responses:* Recordkeeping; third party disclosure; reporting: On occasion; semi-annually; annually. *Total Burden Hours:* 304,655. Grain Inspection, Packers & Stockyards Administration *Title:* “Clear Title”—Protection for Purchasers of Farm Products. *OMB Control Number:* 0580-0016. *Summary of Collection:* Grain Inspection, Packers and Stockyards Administration (GIPSA) have the responsibility for the Clear Title Program (Section 1324 of the Food Security Act of 1985. Clear Title Program was enacted to facilitate interstate commerce in farm products and protect purchasers of farm products by enabling States to establish central filing systems. The Clear Title Program purpose is to remove burden on and obstruction to interstate commerce in farm products such as double payment for the products, once at the time of purchase and again when the seller fails to repay the lender. The Food Security Act of 1985 permits the states to establish “central filing systems'. These central filing systems notify buyers of farm products of any mortgages or liens on the products. There are 19 states that currently have certified central filing systems. *Need and Use of the Information:* A state submits information one time to GIPSA when applying for certification. GIPSA reviews the information submitted by the states to certify that those central filing systems meet the criteria set forth in section 1324 of the Food Security Act of 1985. *Description of Respondents:* Business or other for-profit. *Number of Respondents:* 1. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 80. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E7-22941 Filed 11-23-07; 8:45 am] BILLING CODE 3410-KD-P COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the Pennsylvania Advisory Committee Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights and the Federal Advisory Committee Act, that both an orientation meeting and planning meeting of the Pennsylvania Advisory Committee to the U.S. Commission on Civil Rights will convene at 11:30 a.m. and adjourn at 2 p.m. on Wednesday, December 19, 2007, in the conference room at the Law Offices of Buchanan Ingersoll & Rooney, 17 North Second Street, 15th Floor, Harrisburg, Pennsylvania 17101-1503. The purpose of the orientation meeting is to inform members about the rules and procedures applicable to members of the SAC, including federal ethics laws and rules of conduct, and to the operations of SAC meetings. The purpose of the planning meeting is to review civil rights issues in the State and plan future projects. Members of the public are entitled to submit written comments. The comments must be received in the Eastern Regional Office by January 4, 2008. The address is 624 Ninth Street, NW., Washington, DC 20425. Persons wishing to e-mail their comments, or who desire additional information should contact Alfreda Greene, Secretary, 202-376-7533, TTY 202-376-8116, or by e-mail: *agreene@usccr.gov* . Hearing impaired persons who will attend the meeting and require the service of a sign language interpreter should contact the Regional Office at least
(10)working days before the scheduled date of the meeting. Records generated from these meetings may be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's Web site, *http://www.usccr.gov* , or to contact the Eastern Regional Office at the above e-mail or street address. The meetings will be conducted pursuant to the provisions of the rules and regulations of the Commission and the Federal Advisory Committee Act. Dated in Washington, DC, November 20, 2007. Ivy L. Davis, Acting Chief, Regional Programs Coordination Unit. [FR Doc. E7-22949 Filed 11-23-07; 8:45 am] BILLING CODE 6335-01-P DEPARTMENT OF COMMERCE International Trade Administration Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (the Department) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with October anniversary dates. In accordance with the Department's regulations, we are initiating those administrative reviews. The Department also received a request to revoke one antidumping duty order in part. DATES: *Effective Date:* November 26, 2007. FOR FURTHER INFORMATION CONTACT: Sheila E. Forbes, Office of AD/CVD Operations, Customs Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, *telephone:*
(202)482-4697. SUPPLEMENTARY INFORMATION: Background The Department has received timely requests, in accordance with 19 CFR 351.213(b)(2007), for administrative reviews of various antidumping and countervailing duty orders and findings with October anniversary dates. The Department also received a timely request to revoke in part the antidumping duty order on Carbon and Certain Alloy Steel Wire Rod from Canada. Initiation of Reviews In accordance with section 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than October 31, 2008. Period to be reviewed Antidumping Duty Proceedings *Canada:* Carbon and Certain Alloy Steel Wire Rod, A-122-840 10/1/06-9/30/07 Ivaco Rolling Mills 2004 L.P. (formerly Ivaco Rolling Mills L.P.) Sivaco Ontario, a division of Sivaco Wire Group 2004 L.P. (formerly Ivaco, Inc.) Mittal Canada Inc. (formerly Ispat Sidbec Inc.). *The People's Republic of China:* Certain Helical Spring Lock Washers 1 A-570-822 10/1/06-9/30/07 Hangzhou Spring Washer, Co., Ltd. T *he People's Republic of China:* Polyvinyl Alcohol 2 A-570-879 10/1/06-9/30/07 Sinopec Sichuan Vinylon Works *Trinidad and Tobago:* Carbon and Certain Alloy Steel Wire Rod A-274-804 10/1/06-9/30/07 Mittal Steel Point Lisas Limited Countervailing Duty Proceedings None. Suspension Agreements None. 1 If the above-named company does not qualify for a separate rate, all other exporters of Certain Helical Spring Lock Washers from the People's Republic of China who have not qualified for a separate rate are deemed to be covered by this review as part of the single PRC entity of which the named exporter is a part. 2 If the above-named company does not qualify for a separate rate, all other exporters of Polyvinyl Alcohol from the People's Republic of China who have not qualified for a separate rate are deemed to be covered by this review as part of the single PRC entity of which the named exporter is a part. During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under section 351.211 or a determination under section 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine, consistent with *FAG Italia* v. *United States,* 291 F.3d 806 (Fed Cir. 2002), as appropriate, whether antidumping duties have been absorbed by an exporter or producer subject to the review if the subject merchandise is sold in the United States through an importer that is affiliated with such exporter or producer. The request must include the name(s) of the exporter or producer for which the inquiry is requested. Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305. These initiations and this notice are in accordance with section 751(a) of the Tariff Act of 1930, as amended (19 U.S.C. 1675(a)), and 19 CFR 351.221(c)(1)(i). Dated: November 14, 2007. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E7-22970 Filed 11-23-07; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE International Trade Administration A-475-703 Notice of Final Results of Antidumping Duty Administrative Review: Granular Polytetrafluoroethylene Resin From Italy AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: November 26, 2007. SUMMARY: The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on granular polytetrafluoroethylene
(PTFE)resin from Italy, covering the period August 1, 2005, through July 31, 2006. The review covers one producer/exporter of the subject merchandise, Solvay Solexis, Inc. and Solvay Solexis S.p.A. (collectively, Solvay Solexis). Based on our analysis of the comments received, we have made no changes in the margin calculation for these final results. FOR FURTHER INFORMATION CONTACT: Salim Bhabhrawala, at
(202)482-1784; AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14 th Street & Constitution Avenue, NW, Washington, DC 20230. SUPPLEMENTARY INFORMATION: Background On September 29, 2006, the Department published the notice of initiation of this antidumping duty administrative review, covering the period August 1, 2005, through July 31, 2006 (the period of review, or POR). *See Initiation of Antidumping and Countervailing Duty Administrative Reviews* , 71 FR 57465 (September 29, 2006). On July 20, 2007, the Department published the preliminary results of its administrative review of the antidumping duty order on Granular PTFE Resin from Italy. *See Notice of Preliminary Results of Antidumping Duty Administrative Review: Granular Polytetrafluoroethylene Resin From Italy* , 72 FR 39790 (July 20, 2007) ( *Preliminary Results* ). We invited parties to comment on the *Preliminary Results* . On September 5, 2007, we received a case brief from Solvay Solexis. On September 11, 2007, we received a rebuttal brief from the petitioner. 1 1 The petitioner is E.I. DuPont de Nemours & Company (DuPont). Scope of the Review The product covered by this order is granular PTFE resin, filled or unfilled. This order also covers PTFE wet raw polymer exported from Italy to the United States. *See Granular Polytetrafluoroethylene Resin From Italy; Final Affirmative Determination of Circumvention of Antidumping Duty Order* , 58 FR 26100 (April 30, 1993). This order excludes PTFE dispersions in water and fine powders. During the period covered by this review, such merchandise was classified under item number 3904.61.00 of the Harmonized Tariff Schedule of the United States (HTSUS). We are providing this HTSUS number for convenience and Customs and Border Protection
(CBP)purposes only. The written description of the scope remains dispositive. Analysis of Comments Received All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the “Issues and Decision Memorandum” ( *Decision Memorandum* ) from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David M. Spooner, Assistant Secretary for Import Administration, dated November 15, 2007, which is hereby adopted by this notice. Attached to this notice, as an appendix, is a list of the issues which parties have raised and to which we have responded in the *Decision Memorandum* . Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this memorandum, which is on file in the Central Records Unit (CRU), Room B-099 of the main Department building. In addition, a complete version of the *Decision Memorandum* can be accessed directly on the Import Administration website at *ia.ita.doc.gov\frn* . The paper copy and the electronic version of the *Decision Memorandum* are identical in content. Because the margin calculation for Solvay Solexis has not changed from the preliminary results, the preliminary calculations placed on the record of this administrative review are adopted as the final margin calculations. Final Results of Review As a result of our review, we determine that the following weighted-average margin exists for the period of August 1, 2005, through July 31, 2006: Producer Weighted-Average Margin (Percentage) Solvay Solexis, Inc. and Solvay Solexis S.p.A (collectively, Solvay Solexis) 35.35 Assessment Rates The Department shall determine, and the CBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated importer-specific assessment rates by dividing the dumping margin found on the subject merchandise examined by the entered value of such merchandise. Where the importer-specific assessment rate is above *de minimis* , we will instruct CBP to assess antidumping duties on that importer's entries of subject merchandise. The Department intends to issue appropriate instructions to CBP 15 days after the publication of these final results of review. The Department clarified its “automatic assessment” regulation on May 6, 2003. *See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties* , 68 FR 23954 (May 6, 2003). This clarification will apply to entries of subject merchandise during the period of review produced by the respondent for which it did not know its merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, *see Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties* , 68 FR 23954 (May 6, 2003). Cash Deposit Requirements Furthermore, the following deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of these final results of administrative review, as provided by section 751(a) of the Tariff Act of 1930, as amended (the Act):
(1)for the exporter/manufacturer covered by this review, the cash deposit rate will be the rate listed above;
(2)for merchandise exported by producers or exporters not covered in this review but covered in a previous segment of this proceeding, the cash deposit rate will continue to be the company-specific rate published in the most recent final results in which that producer or exporter participated;
(3)if the exporter is not a firm covered in this review or in any previous segment of this proceeding, but the producer is, the cash deposit rate will be that established for the producer of the merchandise in these final results of review or in the most recent final results in which that producer participated; and
(4)if neither the exporter nor the producer is a firm covered in this review or in any previous segment of this proceeding, the cash deposit rate will be 46.46 percent, the “all-others” rate established in the less-than-fair-value investigation. *See Final Determination of Sales at Less Than Fair Value: Granular Polytetrafluoroethylene Resin From Italy* , 53 FR 26096 (July 11, 1988). These deposit requirements shall remain in effect until further notice. Notification to Importers This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred, and in the subsequent assessment of double antidumping duties. Notification to Interested Parties This notice is also the reminder to parties subject to administrative protective order
(APO)of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation. We are issuing and publishing these results and notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: November 15, 2007. David M. Spooner, Assistant Secretary for Import Administration. Appendix *Comment 1:* Calculation of Solvay Solexis' General and Administrative (G&A) Expense Ratio *Comment 2:* Offsets for Non-Dumped Sales [FR Doc. E7-22968 Filed 11-23-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XD97 Endangered Species; File No. 10022 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; receipt of application. SUMMARY: Notice is hereby given that Raymond Carthy, Department of Wildlife Ecology and Conservation, University of Florida, P.O. Box 110485, Gainesville, Florida 23611-0450, has applied in due form for a permit to take loggerhead ( *Caretta caretta* ), green ( *Chelonia mydas* ), and Kemp's ridley ( *Lepidochelys kempii* ) sea turtles for purposes of scientific research. DATES: Written, telefaxed, or e-mail comments must be received on or before December 26, 2007. ADDRESSES: The application and related documents are available for review upon written request or by appointment in the following offices: Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; and Southeast Region, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; phone (727)824-5312; fax (727)824-5309. Written comments or requests for a public hearing on this application should be mailed to the Chief, Permits, Conservation and Education Division, F/PR1, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910. Those individuals requesting a hearing should set forth the specific reasons why a hearing on this particular request would be appropriate. Comments may also be submitted by facsimile at (301)427-2521, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period. Comments may also be submitted by e-mail. The mailbox address for providing e-mail comments is *NMFS.Pr1Comments@noaa.gov* . Include in the subject line of the e-mail comment the following document identifier: File No. 10022. FOR FURTHER INFORMATION CONTACT: Patrick Opay or Amy Hapeman, (301)713-2289. SUPPLEMENTARY INFORMATION: The subject permit is requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 *et seq.* ) and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR 222-226). The purpose of the proposed research is to determine the significance of Florida's northwest coastal bays to sea turtle development. The applicant would assess sea turtle population abundance and composition, determine size classes, evaluate growth, identify seasonal movements, define overwintering behaviors, investigate developmental migration, and further assess affects of cold-stunning events on sea turtles in the area. The applicant requests authorization to conduct research off the northwest coast of Florida for 5 years. Researchers would capture up to 40 loggerhead, 600 green, and 110 Kemp's ridley sea turtles using strike-net, set-net, or hand capture techniques. Animals would be weighed, measured, photographed, skin biopsied, flipper and Passive Integrated Transponder tagged, and released. Dated: November 16, 2007. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-22953 Filed 11-23-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [Docket No. 071018607-7707-02] NOAA Cooperative Institutes (CIs):
(1)Alaska and Related Arctic Regions Environmental Research and
(2)Earth System Modeling for Climate Applications AGENCY: Office of Oceanic and Atmospheric Research, National Oceanic and Atmospheric Administration (NOAA), Department of Commerce. ACTION: Notice; Correction. SUMMARY: On October 24, 2007, the Office of Oceanic and Atmospheric Research
(OAR)published a notice of availability of funds to establish two new NOAA cooperative institutes (CIs):
(1)Alaska and Related Arctic Regions Environmental Research and
(2)Earth System Modeling for Climate Applications (72, FR 60317). That notice contained a typographical error in the discussion under the heading “Earth System Modeling for Climate Applications CI.” This notice corrects the error. FOR FURTHER INFORMATION CONTACT: Dr. John Cortinas, 1315 East West Highway, Room 11326, Silver Spring, Maryland 20910; telephone 301-734-1090. Facsimile:
(301)713-3515; e-mail: *John.Cortinas@noaa.gov.* SUPPLEMENTARY INFORMATION: Correction The sixth sentence of the section entitled, “Earth System Modeling for Climate Applications CI” contained a typographical error. The sentence, “The proposed Alaska CI should possess outstanding capabilities to provide research under three themes:
(1)Earth system modeling and analysis,
(2)data assimilation, and
(3)earth system modeling applications” is corrected to read, “The proposed Earth System Modeling CI should possess outstanding capabilities to provide research under three themes:
(1)Earth system modeling and analysis,
(2)data assimilation, and
(3)earth system modeling applications.” All other requirements and information listed in the original notice remain the same. *Classification:* Pre-Award Notification Requirements for Grants and Cooperative Agreements. The Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements contained in the **Federal Register** notice of December 30, 2004 (69 FR 78389) are applicable to this solicitation. Limitation of Liability Funding for years 2-5 of the Cooperative Institute is contingent upon the availability of appropriated funds. In no event will NOAA or the Department of Commerce be responsible for application preparation costs if these programs fail to receive funding or are cancelled because of other agency priorities. Publication of this announcement does not oblige NOAA to award any specific project or to obligate any available funds. Paperwork Reduction Act This notification involves collection of information requirements subject to the Paperwork Reduction Act. The use of Standard Forms 424, 424A, 424B, and SF-LLL and CD-346 has been approved by the Office of Management and Budget
(OMB)respectively under control numbers 0348-0043, 0348-0044, 0348-0040, and 0348-0046 and 0605-0001. Notwithstanding any other provision of law, no person is required for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB Control Number. Executive Order 12866 It has been determined that this notice is not significant for purposes of Executive Order 12866. Executive Order 13132 (Federalism) It has been determined that this notice does not contain policies with Federalism implications as that term is defined in Executive Order 13132. Administrative Procedure Act/Regulatory Flexibility Act Prior notice and an opportunity for public comment are not required by the Administrative Procedure Act or any other law for rules concerning public property, grants, benefits, and contracts (5 U.S.C. 553(a)(2)). Because notice and opportunity for comments are not required pursuant to U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) are inapplicable. Therefore, a regulatory flexibility analysis is not required and none has been prepared. Dated: November 14, 2007. Mark E. Brown, Chief Financial Officer, Oceanic and Atmospheric Research, National Oceanic and Atomspheric Administration. [FR Doc. 07-5828 Filed 11-23-07; 8:45 am]
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CFR
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  • 21 CFR 558
  • 21 CFR 20
  • 5 USC 801-808
  • 33 CFR 165
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 107-295
  • 7 CFR 786
  • Pub. L. 110-28
  • 40 CFR 1502.4
  • 7 CFR 799
  • 7 CFR 3015
  • 5 CFR 1320.8(d)(1)
  • 7 CFR 718
  • 7 CFR 12
  • 7 CFR 795.17
  • 7 CFR 707
  • 7 CFR 792
  • 7 CFR 1404
  • 14 CFR 39
  • 18 CFR 284
  • 88 F.3d 1105
  • 285 F.3d 18
  • 428 F.3d 255
  • 734 F.2d 1486
  • 172 F.3d 918
  • 292 F.3d 831
  • 417 U.S. 380
  • 5 CFR 1320.11
  • 15 USC 623
  • 15 USC 717-717w
  • 42 USC 7101-7352
  • 43 USC 1331-1356
  • Pub. L. 104-13
  • 7 USC 181-229
  • 291 F.3d 806
  • 50 CFR 222
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Final rule
C.F.R.§ 558.261
C.F.R.§ 514.11
U.S.C.§ 360ccc–2
U.S.C.§ 804
U.S.C.§ 360b
U.S.C.§ 553
Fed. Reg.Notices
U.S.C.§ 605
Fed. Reg.Proposed Rules
F. App'x88 F.3d 1105
F. App'x285 F.3d 18
F. App'x428 F.3d 255
Cites 79 · showing 12Cited by 0 across 0 sources
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