Rules and Regulations. Final rule

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BILLING CODE 3410-02-P FEDERAL RESERVE SYSTEM 12 CFR Part 201 [Regulation A; Docket No. R-1304] Extensions of Credit by Federal Reserve Banks AGENCY: Board of Governors of the Federal Reserve System. ACTION: Final rule. SUMMARY: The Board of Governors of the Federal Reserve System (Board) is amending its Regulation A, effective December 12, 2007, to allow the Board to authorize a temporary Term Auction Facility

(TAF)under section 10B of the Federal Reserve Act. A TAF is a credit facility that allows a depository institution to obtain an advance from its local Federal Reserve Bank at an interest rate that is determined as the result of an auction. A TAF is expected to permit depository institutions to obtain credit on a secured basis from the Federal Reserve at rates that meet the market demand for credit of relatively short terms. The Board is also announcing the immediate authorization of a TAF, subject to the terms and conditions specified herein. DATES: The amendments to part 201 (Regulation A) are effective December 12, 2007. FOR FURTHER INFORMATION CONTACT: Scott G. Alvarez, General Counsel (202/452-3583); Heatherun Sophia Allison, Senior Counsel (202/452-3565); for users of Telecommunication Devices for the Deaf

(TDD)only, contact 202/263-4869. SUPPLEMENTARY INFORMATION: Section 10B of the Federal Reserve Act (12 U.S.C. 347b(a)) authorizes any Federal Reserve Bank, under rules and regulations prescribed by the Board, to make advances to depository institutions that have maturities of not more than four months and that are secured to the satisfaction of the Federal Reserve Bank. Under this authority, the Board has determined to amend Regulation A, effective immediately, to authorize a TAF, subject to such further terms and conditions as the Board may specify from time to time in connection with the TAF. The interest rate at which credit is extended under a TAF will be determined through an auction procedure. A TAF is expected to permit depository institutions to obtain credit on a secured basis from the Federal Reserve at rates that meet the market demand for credit of relatively short terms. *Final Rule.* The final rule provides that advances under a TAF will be made only to depository institutions that are in generally sound financial condition, are expected to remain in that condition during the term of the advance and are eligible to receive advances under section 10B of the Federal Reserve Act. The final rule also provides that credit extended under a TAF will be granted at the rate based on the auction. The final rule further provides that the terms and conditions applicable to a TAF will be specified by the Board from time to time in connection with the TAF. Those terms and conditions may include but are not limited to requirements governing the condition of participants, size and duration of the facility, minimum and maximum bid amounts, term of advance, use of proceeds, and schedule of auction dates. All institutions that seek credit under the TAF agree to be bound by the terms and conditions of the TAF as set out in the documents issued by the Board governing the TAF. The Board may appoint one or more Reserve Banks or others to conduct the auction. The amendment to Regulation A authorizing the TAF is being adopted in response to current market conditions as discussed below and is intended to be a temporary change. Consequently, the final rule provides that the TAF will end on such date as set by the Board. In the event the Board determines to adopt these changes to Regulation A on a permanent basis, the Board expects to seek public comment on the changes. *Immediate Authorization of TAF.* The Board has determined immediately to authorize a TAF. Unless otherwise provided, the TAF will be subject to the following terms and conditions. The first auction will take place during the week of December 17, 2007, with a second auction occurring on or about December 20, 2007. Additional auctions will be held beginning in January 2008, until and unless otherwise determined by the Board. The amount available at each auction, a minimum bid amount, a maximum bid amount, and a minimum bid rate will be announced before each auction. The rate determined by the auction will be announced after completion of the auction, and will in general be the maximum bid rate that allows advances to be extended up to the maximum amount allocated for that week's auction. Bidding schedules will be announced in advance of each auction. The auction will be open to depository institutions that are in generally sound financial condition and are expected to remain so during the term of the advance. Unless otherwise provided, any eligible depository institution that wishes to participate in the TAF may submit to the Reserve Bank in whose district the institution is located (local Reserve Bank) no more than two bids containing the amount of advances it is seeking and its interest rate bids. The auction will be administered by an auction agent appointed by the Board. All advances to a depository institution made under the TAF will be made by its local Reserve Bank and must be secured to the satisfaction of the local Reserve Bank. Advances made under the TAF are expected to be for a term of at least 28 days, as set at the time of the auction. An advance awarded under the TAF is an “Advance,” as such term is defined in Operating Circular No. 10, as amended and supplemented from time to time (OC-10) and shall be governed by OC-10 (including, without limitation, provisions relating to interest, the addition or substitution of Collateral, repayment of Advances and remedies upon the occurrence of an Event of Default), except that no depository institution may elect to prepay an advance made under the TAF before the stated maturity date. Repayment of an advance prior to stated maturity, or change in the terms of the advance, may be required in the event that the depository institution does not remain in generally sound financial condition during the term of the loan, or as otherwise provided by the Reserve Bank or Board in the notices or other documentation regarding advances under the TAF. An advance under the TAF shall also be subject to the terms and conditions of the TAF as set from time to time by the Board. All advances under the TAF are extended at the discretion of the local Reserve Bank, and neither the TAF terms and conditions nor Regulation A afford any depository institution any legal right to bid in the TAF or to receive any advance from any Reserve Bank. Regulatory Flexibility Act Certification Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Board certifies that the new auction credit facility will not have a significantly adverse economic impact on a substantial number of small entities because the final rule does not impose any additional requirements on entities affected by the regulation. Administrative Procedure Act In accordance with the Administrative Procedure Act (APA), the Board has determined that prior notice and opportunity for public comment on this amendment to Regulation A is not required. First, notice and comment are not required for matters relating to public loans. 1 The TAF implements the System's lending authority. Second, the Board believes that good cause supports a finding in this case that delay in adopting the amendments to Regulation A would be impracticable, unnecessary and contrary to the public interest. 2 Short-term bank funding markets have been strained for some time and these pressures have intensified in recent weeks. These developments have occurred against the backdrop of considerable tightening in overall financial conditions. The current difficulties in bank funding markets could contribute to a further deterioration in financial market conditions and tightening of credit availability that, in turn, could adversely affect prospects for economic growth. In these circumstances, the Board believes that any delay in implementing a temporary Term Auction Facility to allow for a full public comment period could well prove contrary to the public interest. 1 5 U.S.C. 553(a)(2). 2 5 U.S.C. 553(b)(3)(B). List of Subjects in 12 CFR Part 201 Banks, Banking, Federal Reserve System, Reporting and recordkeeping. Authority and Issuance For the reasons set forth in the preamble, the Board is amending 12 CFR Chapter II to read as follows: PART 201—EXTENSIONS OF CREDIT BY FEDERAL RESERVE BANKS (REGULATION A) 1. The authority citation for part 201 continues to read as follows: Authority: 12 U.S.C. 248(i)-(j), 343 *et seq.* , 347a, 347b, 347c, 348 *et seq.* , 357, 374, 374a, and 461. 2. In § 201.4, a new paragraph

(e)is added to read as follows: § 201.4 Availability and terms of credit.

(e)*Term auction facility.*

(1)A Federal Reserve Bank may make an advance to a depository institution pursuant to an auction conducted under this paragraph and at the rate specified in § 201.51(e) if, in the judgment of the Reserve Bank, the depository institution is in generally sound financial condition and is expected to remain in that condition during the term of the advance. An auction under this paragraph shall be conducted subject to such conditions, including conditions regarding the participants, size and duration of the facility, minimum bid amount, maximum bid amount, term of advance, minimum bid rate, use of proceeds, and schedule of auction dates, as the Board may establish from time to time in connection with the term auction facility. The Board may appoint one or more Reserve Banks or others to conduct the auction.

(2)Authorization for the term auction facility established by § 201.4(e)(1) shall expire on such date as set by the Board. 3. In § 201.51, a new paragraph

(e)is added to read as follows: § 201.51 Interest rates applicable to credit extended by a Federal Reserve Bank.

(e)*Term auction facility.* The interest rate on advances to depository institutions made pursuant to an auction under § 201.4(e) is the rate at which all bids at that auction may be fulfilled, up to the maximum auction amount and subject to any minimum bid rate and other conditions as set by the Board. By order of the Board of Governors of the Federal Reserve System, December 12, 2007. Jennifer J. Johnson, Secretary of the Board. [FR Doc. E7-24315 Filed 12-14-07; 8:45 am] BILLING CODE 6210-02-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28432; Directorate Identifier 2007-CE-051-AD; Amendment 39-15303; AD 2007-26-01] RIN 2120-AA64 Airworthiness Directives; Thrush Aircraft, Inc. Model S2R Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive

(AD)for certain Thrush Aircraft, Inc. (Thrush) Model S2R series airplanes. This AD requires you to do repetitive visual inspections of the vertical and horizontal stabilizer attach fitting, attach fitting bolts, and the vertical fin aft spar for cracks or corrosion. This AD also requires immediate replacement of the vertical and horizontal stabilizer attach fittings and attach fitting bolts if cracked or corroded parts are found, and the inspection of the vertical fin aft spar with repair or replacement if cracks or corrosion are found. This AD requires the eventual replacement of the vertical and horizontal stabilizer attach fittings and attach fitting bolts if no corrosion or cracks are found as terminating action for the repetitive inspections. This AD results from reports of cracks in the empennage of Thrush S2R series airplanes. We are issuing this AD to detect and correct these cracks, which could cause the vertical stabilizer to lose structural integrity. This failure could lead to loss of control. DATES: This AD becomes effective on January 22, 2008. On January 22, 2008, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD. ADDRESSES: For service information identified in this AD, contact Thrush Aircraft, Inc., P.O. Box 3149, 300 Old Pretoria Road, Albany, Georgia 31706-3149; telephone: 229-883-1440; facsimile: 229-436-4856; or on the Internet at: *www.thrushaircraft.com* . To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at *http://www.regulations.gov.* The docket number is FAA-2007-28432; Directorate Identifier 2007-CE-051-AD. FOR FURTHER INFORMATION CONTACT ONE OF THE FOLLOWING: —Cindy Lorenzen, Aerospace Engineer, ACE-115A, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Blvd., Suite 450, Atlanta, Georgia 30349; *telephone:*

(770)703-6078; *fax:*

(770)703-6097; *e-mail: cindy.lorenzen@faa.gov;* or —Mike Cann, Aerospace Engineer, ACE-117A, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Blvd., Suite 450, Atlanta, Georgia 30349; *telephone:*

(770)703-6038; *facsimile:*

(770)703-6097; *e-mail: michael.cann@faa.gov.* SUPPLEMENTARY INFORMATION: Discussion On July 26, 2007, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain S2R series airplanes. This proposal was published in the **Federal Register** as a notice of proposed rulemaking

(NPRM)on July 26, 2007 (72 FR 41042). The NPRM proposed to require repetitive visual inspections of the vertical and horizontal stabilizer attach fitting, attach fitting bolts, and the vertical fin aft spar for corrosion or cracks. The NPRM also proposed to require immediate replacement of the vertical and horizontal stabilizer attach fittings and attach fitting bolts if cracked or corroded parts are found, and inspection of the vertical fin aft spar with repair or replacement if cracks or corrosion are found. This AD requires the eventual replacement of the vertical and horizontal stabilizer attach fittings and attach fitting bolts if no corrosion or cracks are found as terminating action for the repetitive inspections. Comments We provided the public the opportunity to participate in developing this AD. We received no comments on the proposal or on the determination of the cost to the public. Conclusion We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections: • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and • Do not add any additional burden upon the public than was already proposed in the NPRM. Costs of Compliance We estimate that this AD affects 910 airplanes in the U.S. registry. We estimate the following costs to do the inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 8 work-hours × $80 per hour = $640 Not applicable $640 $582,400 We estimate the following costs to do any necessary replacements of the vertical fin aft spar that would be required based on the results of the inspection. We have no way of determining the number of airplanes that may need this replacement: Labor cost Parts cost Total cost per airplane 12 work-hours × $80 per hour = $960 $3,800 $4,760 We estimate the following costs to replace the vertical and horizontal stabilizer attach fittings and attachment bolt: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 30 work-hours × $80 per hour = $2,400 $1,550 $3,950 $3,594,500 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this AD. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “Docket No. FAA-2007-28432; Directorate Identifier 2007-CE-051-AD” in your request. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. FAA amends § 39.13 by adding the following new AD: **2007-26-01 Thrush Aircraft, Inc.:** Amendment 39-15303; Docket No. FAA-2007-28432; Directorate Identifier 2007-CE-051-AD. Effective Date

(a)This AD becomes effective on January 22, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to the following airplane models and serial numbers that are certificated in any category and are equipped with metal empennage part numbers (P/N) 40220 or 95400 (applies to serial numbers with or without a “DC” suffix): Model Serial Nos.

(1)S2R 1416R through 5100R.

(2)S2R-R1340 R1340-001 through R1340-035.

(3)S2R-R1820 R1820-001 through R1820-036.

(4)S2R-T11 T11-001 through T11-005.

(5)S2R-T15 T15-001 through T15-044 and T27-001 through T27-044.

(6)S2R-T34 6000 through 6049, T34-001 through T34-279, T36-001 through T36-279, T41-001 through T41-279, and T42-001 through T42-279.

(7)S2RHG-T34 T34HG-101 through T34HG-107.

(8)S2R-T45 T45-001 through T45-015.

(9)S2R-T65 T65-001 through T65-018.

(10)S2RHG-T65 T65-001 through T65-018 and T65HG-011 through T65HG-019.

(11)S2R-G1 G1-101 through G1-115.

(12)S2R-G5 G5-101 through G5-105.

(13)S2R-G6 G6-101 through G6-155.

(14)S2R-G10 G10-101 through G10-168.

(15)S2R-T660 T660-101 through T660-120. Unsafe Condition

(d)This AD results from reports of cracks in the empennage of Thrush Aircraft, Inc., S2R series airplanes. We are issuing this AD to detect and correct these cracks, which could cause the vertical stabilizer to lose structural integrity. This condition could lead to loss of control. Compliance

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

(1)Perform a visual inspection of the vertical stabilizer attach fitting (P/N 40301-7), the horizontal stabilizer attach fitting (P/N 40303-1/-4/-7 or 95267-1), attachment bolt (P/N NAS1105-68), and the vertical fin aft spar (P/N 40261-24 or P/N 95253-1) for corrosion and cracks Within the next 50 hours time-in-service

(TIS)after January 22, 2008 (the effective date of this AD) and repetitively thereafter at intervals not to exceed 100 hours TIS Follow Thrush Aircraft, Inc. Service Bulletin No. SB-AG-45, Revision B, dated June 1, 2007.

(2)If corrosion or cracks are found in P/N 40301-7, 40303-1/-4/-7, 95267-1, NAS1105-68, 40261-24, or 95253-1 during any inspection required in paragraph (e)(1) of this AD:

(i)Replace the vertical stabilizer attach fitting with new P/N 95266-3; the horizontal stabilizer attach fitting with new P/N 95267-5; and the attachment bolt with NAS6207-68; and

(ii)If corrosion or cracks are found in the P/N 40261-24 or P/N 95253-1 vertical fin aft spar, repair in accordance with Thrush SB-AG-45, Revision B, or replace with a new P/N 40261-24 or new P/N 95253-1 Before further flight after any inspection where corrosion or cracks are found. This action terminates the repetitive inspections required in paragraph (e)(1) of this AD Follow Thrush Aircraft, Inc. Service Bulletin No. SB-AG-45, Revision B, dated June 1, 2007.

(3)If no corrosion or cracks are found in P/N 40301-7, 40303-1/-4/-7, 95267-1, NAS1105-68, 40261-24, or 95253-1 during any inspection required in paragraph (e)(1) of this AD:

(i)Replace the vertical stabilizer attach fitting with new P/N 95266-3; the horizontal stabilizer attach fitting with new P/N 95267-5; and the attachment bolt with NAS6207-68; and

(ii)Perform a visual inspection of the vertical fin aft spar (P/N 40261-24 or P/N 95253-1) for corrosion and cracks, and

(iii)If corrosion or cracks are found in the P/N 40261-24 or P/N 95253-1 vertical fin aft spar, repair in accordance with Thrush SB-AG-45, Revision B, or replace with a new P/N 40261-24 or new P/N 95253-1 Within the next 2,000 hours TIS after January 22, 2008 (the effective date of this AD) or within 2 years after January 22, 2008 (the effective date of this AD), whichever occurs first. This action terminates the repetitive inspections required in paragraph (e)(1) of this AD Follow Thrush Aircraft, Inc. Service Bulletin No. SB-AG-45, Revision B, dated June 1, 2007. Special Flight Permit

(f)Under 14 CFR part 39.23, we are limiting the special flight permits authorized for this AD to ferry aircraft to a maintenance facility for inspection by the following conditions:

(1)Hopper must be empty;

(2)Vne reduced to 126 m.p.h. (109 knots); and

(3)No flight into known turbulence. Alternative Methods of Compliance (AMOCs)

(g)The Manager, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Cindy Lorenzen, Aerospace Engineer, ACE-115A, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Blvd., Suite 450, Atlanta, GA 30349; *telephone:*

(770)703-6078; *facsimile:*

(770)703-6097; *e-mail: cindy.lorenzen@faa.gov;* or Mike Cann, Aerospace Engineer, ACE-117A, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Blvd., Suite 450, Atlanta, Georgia 30349; *telephone:*

(770)703-6038; *facsimile:*

(770)703-6097; *e-mail: michael.cann@faa.gov.* 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. Material Incorporated by Reference

(h)You must use Thrush Aircraft, Inc. Service Bulletin No. SB-AG-45, Revision B, dated June 1, 2007, to do the actions required by this AD, unless the AD specifies otherwise.

(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.

(2)For service information identified in this AD, contact Thrush Aircraft, Inc., P.O. Box 3149, 300 Old Pretoria Road, Albany, Georgia 31706-3149; *telephone:* 229-883-1440; *facsimile:* 229-436-4856; or on the Internet at: *http://www.thrushaircraft.com.*

(3)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . Issued in Kansas City, Missouri, on December 10, 2007. John R. Colomy, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24218 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2005-21470; Directorate Identifier 2003-NM-45-AD; Amendment 39-15302; AD 2007-25-20] RIN 2120-AA64 Airworthiness Directives; McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30 and DC-10-30F (KC-10A and KDC-10) Airplanes; Model DC-10-40 and DC-10-40F Airplanes; and Model MD-11 and MD-11F Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is adopting a new airworthiness directive

(AD)for certain McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30 and DC-10-30F (KC-10A and KDC-10) airplanes; Model DC-10-40 and DC-10-40F airplanes; and Model MD-11 and MD-11F airplanes. This AD requires, for certain airplanes, modifying the thrust reverser command wiring of the number 2 engine. For certain other airplanes, this AD requires modifying the thrust reverser system wiring from the flight compartment to engines 1, 2, and 3 thrust reversers. This AD also requires installing thrust reverser locking systems on certain airplanes. This AD results from a determination that the thrust reverser systems on these McDonnell Douglas airplanes do not adequately preclude unwanted deployment of a thrust reverser. We are issuing this AD to prevent an unwanted deployment of a thrust reverser during flight, which could result in reduced controllability of the airplane. DATES: This AD becomes effective January 22, 2008. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of January 22, 2008. On October 1, 2001 (66 FR 44950, August 27, 2001), the Director of the Federal Register approved the incorporation by reference of McDonnell Douglas Service Bulletin DC10-78-060, dated December 17, 1999. On April 25, 2001 (66 FR 15785, March 21, 2001), the Director of the Federal Register approved the incorporation by reference of McDonnell Douglas Alert Service Bulletin DC10-78A057, Revision 01, dated February 18, 1999. ADDRESSES: For Boeing and McDonnell Douglas service information identified in this AD, contact Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). For Rohr service information identified in this AD, contact Rohr, Inc., 850 Lagoon Drive, Chula Vista, California 91910-2098. 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 AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is the Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Philip C. Kush, Aerospace Engineer, Propulsion Branch, ANM-140L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone

(562)627-5263; fax

(562)627-5210. SUPPLEMENTARY INFORMATION: Discussion The FAA issued a supplemental notice of proposed rulemaking

(NPRM)to amend 14 CFR part 39 to include an AD that would apply to certain McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30 and DC-10-30F (KC-10A and KDC-10) airplanes; Model DC-10-40 and DC-10-40F airplanes; and Model MD-11 and MD-11F airplanes. That supplemental NPRM was published in the **Federal Register** on July 23, 2007 (72 FR 40090). That supplemental NPRM proposed to require, for certain airplanes, modifying the thrust reverser command wiring of the number 2 engine. For certain other airplanes, the supplemental NPRM proposed to require modifying the thrust reverser system wiring from the flight compartment to engines 1, 2, and 3 thrust reversers. The supplemental NPRM also proposed to require installing thrust reverser locking systems on certain airplanes. The supplemental NPRM also proposed to revise the original NPRM by revising, for certain airplanes, the requirements for the modification of the thrust reverser system wiring from the flight compartment to engines 1, 2, and 3 thrust reversers. Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comment received. Request for Notification of Service Bulletin/Rulemaking FedEx requests that we and/or Boeing notify operators of any service bulletin or rulemaking that will cover Model MD-11 and MD-11F airplanes that are not specified in Boeing Alert Service Bulletin MD11-78A007, Revision 4, dated February 22, 2007 (which is referred to as a source of service information for doing a modification specified in the supplemental NPRM). FedEx states that it has no comments on the proposed requirements of the supplemental NPRM. We acknowledge FedEx's request. We have been advised that when a service bulletin is released Boeing does notify the customers affected by the service bulletin. If service information is developed for other Model MD-11 and MD-11F airplanes and an unsafe condition is identified, we might consider further rulemaking. Interested persons can review the **Federal Register** to become aware of such rulemaking actions. Conclusion We have carefully reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD as proposed in the supplemental NPRM. Costs of Compliance There are about 612 airplanes of the affected designs in the worldwide fleet. This AD affects about 245 airplanes of U.S. registry. The following tables provide the estimated costs for U.S. operators to comply with this AD, for the applicable actions, at an average hourly labor rate of $80 per work hour. Cost for Wiring Modification/Thrust Reverser Locking System Installation Action Work hours Parts Cost per airplane Number of U.S.- registered airplanes Fleet cost Modify wiring (Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30 and DC-10-30F (KC-10A and KDC-10) airplanes) 34 $1,562 $4,282 40 $171,280. Modify wiring (Model DC-10-40 and DC-10-40F airplanes) 34 $5,238 $7,958 45 $358,110. Modify wiring (Model MD-11 and -11F airplanes) Between 124 and 192 Between $11,912 and $17,672 Between $21,832 and $33,032 160 Between $3,493,120 and $5,285,120. Install thrust reverser locking system (Model DC-10-40 and DC-10-40F airplanes) 218 Between $165,535 and $207,792 Between $182,975 and $225,232 45 Between $8,233,875 and $10,135,440. Cost of Concurrent Actions for Model MD-11 and MD-11F Airplanes Action Work hours Parts Cost per airplane Number of U.S.- registered airplanes Fleet cost Update program software, as applicable 2 None $160 Up to 160 Up to $25,600. Modify wing pylon harnesses, as applicable 100 $5,268 $13,268 Up to 160 Up to $2,122,880. Modify pylon thrust reverser harnesses and J-box, as applicable Between 82 and 192 Between $10,472 and $15,999 Between $17,032 and $31,359 Up to 160 Up to $5,017,440. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:

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

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

(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **2007-25-20 McDonnell Douglas:** Amendment 39-15302. Docket No. FAA-2005-21470; Directorate Identifier 2003-NM-45-AD. Effective Date

(a)This AD becomes effective January 22, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to airplanes, certificated in any category, as listed in Table 1 of this AD. Table 1.—Applicability McDonnell Douglas airplane— As identified in—

(1)Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30 and DC-10-30F (KC-10A and KDC-10) airplanes Boeing Service Bulletin DC10-78-066, Revision 01, dated November 30, 2001.

(2)Model DC-10-40 and DC-10-40F airplanes Boeing Service Bulletin DC10-78-067, dated October 30, 2002.

(3)Model MD-11 and MD-11F airplanes Boeing Alert Service Bulletin MD11-78A007, Revision 4, dated February 22, 2007. Unsafe Condition

(d)This AD was prompted by a determination that the thrust reverser systems on these McDonnell Douglas airplanes do not adequately preclude unwanted deployment of a thrust reverser. We are issuing this AD to prevent an unwanted deployment of a thrust reverser during flight, which could result in reduced controllability of the airplane. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Wiring Modification

(f)For Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30, and DC-10-30F (KC-10A and KDC-10) airplanes: Within 60 months after the effective date of this AD, modify the thrust reverser command wiring of the number 2 engine by doing all the actions specified in the Accomplishment Instructions of Boeing Service Bulletin DC10-78-066, Revision 01, dated November 30, 2001.

(g)For Model MD-11 and MD-11F airplanes: Within 60 months after the effective date of this AD, modify the thrust reverser system wiring from the flight compartment to engines 1, 2, and 3 thrust reversers by doing all the actions specified in the Accomplishment Instructions of Boeing Alert Service Bulletin MD11-78A007, Revision 4, dated February 22, 2007. Wiring Modification/Installation of Thrust Reverser Locking System

(h)For Model DC-10-40 and DC-10-40F airplanes: Within 60 months after the effective date of this AD, modify the thrust reverser command wiring of the number 2 engine by doing all the actions specified in the Accomplishment Instructions of Boeing Service Bulletin DC10-78-067, dated October 30, 2002, and install thrust reverser locking systems by doing all the applicable actions specified in the Accomplishment Instructions of McDonnell Douglas Service Bulletin DC10-78-064, dated June 24, 2003. Prior or Concurrent Actions

(i)For Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30, and DC-10-30F (KC-10A and KDC-10) airplanes: Prior to or concurrently with the actions required by paragraph

(f)of this AD, do the actions specified in Table 2 of this AD. Table 2.—Prior or Concurrent Actions for Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30, and DC-10-30F (KC-10A and KDC-10) Airplanes Do— Required by— In accordance with— Repetitive detailed visual inspections, functional checks, and torque checks of the thrust reverser systems, and applicable corrective actions Paragraphs

(c)and

(i)of AD 2001-05-10, amendment 39-12147 McDonnell Douglas Alert Service Bulletin DC10-78A057, Revision 01, dated February 18, 1999. A modification of the indication light system for the thrust reversers Paragraph

(a)of AD 2001-17-19, amendment 39-12410 McDonnell Douglas Service Bulletin DC10-78-060, dated December 17, 1999; or McDonnell Douglas Service Bulletin DC10-78-060, Revision 01, dated June 30, 2003.

(j)For Model MD-11 and MD-11F airplanes: Prior to or concurrently with the actions required by paragraph

(g)of this AD, do the actions specified in Table 3 of this AD. Table 3.—Prior or Concurrent Actions for Model MD-11 and MD-11F Airplanes Do— In accordance with— An update of the program software of display electronic units McDonnell Douglas Service Bulletin MD11-31-091, dated November 5, 1998. A modification of the wing pylon harnesses Rohr Service Bulletin MD-11 54-200, Revision 1, dated May 14, 2001. A modification of the pylon thrust reverser harnesses and J-box Rohr Service Bulletin MD-11 54-201, Revision 2, dated December 12, 2005. Actions Accomplished According to Previous Issues of Service Bulletins

(k)Actions accomplished before the effective date of this AD according to Boeing Service Bulletin DC10-78-066, dated March 6, 2001; Rohr Service Bulletin MD-11 54-201, dated November 30, 1999; or Rohr Service Bulletin MD-11 54-201, Revision 1, dated November 23, 2005; are considered acceptable for compliance with the applicable corresponding actions specified in this AD. Alternative Methods of Compliance (AMOCs) (l)(1) The Manager, Los Angeles 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. Material Incorporated by Reference

(m)You must use the service bulletins listed in Table 4 of this AD to perform the actions that are required by this AD, unless the AD specifies otherwise. Table 4.—All Material Incorporated by Reference Service Bulletin Revision level Date Boeing Alert Service Bulletin MD11-78A007 4 February 22, 2007. Boeing Service Bulletin DC10-78-066 01 November 30, 2001. Boeing Service Bulletin DC10-78-067 Original October 30, 2002. McDonnell Douglas Alert Service Bulletin DC10-78A057, including Attachment A 01 February 18, 1999. McDonnell Douglas Service Bulletin DC10-78-060 Original December 17, 1999. McDonnell Douglas Service Bulletin DC10-78-060 01 June 30, 2003. McDonnell Douglas Service Bulletin DC10-78-064 Original June 24, 2003. McDonnell Douglas Service Bulletin MD11-31-091 Original November 5, 1998. Rohr Service Bulletin MD-11 54-200 1 May 14, 2001. Rohr Service Bulletin MD-11 54-201 2 December 12, 2005.

(1)The Director of the Federal Register approved the incorporation by reference of the service bulletins listed in Table 5 of this AD in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Table 5.—New Material Incorporated by Reference Service Bulletin Revision level Date Boeing Alert Service Bulletin MD11-78A007 4 February 22, 2007. Boeing Service Bulletin DC10-78-066 01 November 30, 2001. Boeing Service Bulletin DC10-78-067 Original October 30, 2002. McDonnell Douglas Service Bulletin DC10-78-060 01 June 30, 2003. McDonnell Douglas Service Bulletin DC10-78-064 Original June 24, 2003. McDonnell Douglas Service Bulletin MD11-31-091 Original November 5, 1998. Rohr Service Bulletin MD-11 54-200 1 May 14, 2001. Rohr Service Bulletin MD-11 54-201 2 December 12, 2005.

(2)On October 1, 2001 (66 FR 44950, August 27, 2001), the Director of the Federal Register approved the incorporation by reference of McDonnell Douglas Service Bulletin DC10-78-060, dated December 17, 1999.

(3)On April 25, 2001 (66 FR 15785, March 21, 2001), the Director of the Federal Register approved the incorporation by reference of McDonnell Douglas Alert Service Bulletin DC10-78A057, Revision 01, including Attachment A, dated February 18, 1999.

(4)Contact Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024), for a copy of Boeing and McDonnell Douglas service information. Contact Rohr, Inc., 850 Lagoon Drive, Chula Vista, California 91910-2098, for a copy of Rohr service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Issued in Renton, Washington, on November 29, 2007. Stephen P. Boyd, Assistant Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-23934 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0336; Directorate Identifier 2007-NM-201-AD; Amendment 39-15308; AD 2007-26-06] RIN 2120-AA64 Airworthiness Directives; Boeing Model 747-200B, 747-300, and 747-400 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule; request for comments. SUMMARY: The FAA is adopting a new airworthiness directive

(AD)for certain Boeing Model 747-200B, 747-300, and 747-400 series airplanes. This AD requires an inspection to determine the manufacturer and manufacture date of the oxygen masks in the passenger service units of the outboard and center main deck, the flight attendant service units, flightcrew rest, upper and lower module of the door 5 overhead crew rest, lavatory modules, and miscellaneous ceiling panels, as applicable, and related investigative/corrective actions if necessary. This AD results from a report that several passenger masks with broken in-line flow indicators were found following a mask deployment. We are issuing this AD to prevent the in-line flow indicators of the passenger oxygen masks from fracturing and separating, which could inhibit oxygen flow to the masks and consequently result in exposure of the passengers and cabin attendants to hypoxia following a depressurization event. DATES: This AD becomes effective January 2, 2008. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of January 2, 2008. We must receive comments on this AD by February 15, 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 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: Susan Letcher, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)917-6474; fax

(425)917-6590. SUPPLEMENTARY INFORMATION: Discussion We have received a report indicating that several passenger masks with broken in-line flow indicators were found following a mask deployment on a Boeing Model 777-200 series airplane. Operators subsequently found several more broken in-line flow indicators after examining the oxygen mask assemblies on other Model 777 series airplanes and on Model 747-400 series airplanes. Investigation revealed that certain flow indicators are weaker and can fracture because of internal residual stresses caused by the flow indicator joint design and manufacturing processes. Fractures cause the in-line flow indicator to separate and consequently prevent oxygen flow to the mask during an emergency. This condition, if not corrected, could result in exposure of the passengers and cabin attendants to hypoxia following a depressurization event. The oxygen masks on certain Model 777 airplanes and Model 747-400 series airplanes have the same flow indicators as those installed on certain Model 747-200B and -300 series airplanes. Therefore, the Model 747-200B and -300 series airplanes are also subject to the identified unsafe condition. We are addressing the unsafe condition on the Model 777 airplanes in another rulemaking action. Relevant Service Information We have reviewed Boeing Service Bulletin 747-35-2119, dated November 30, 2006. The service bulletin describes procedures for doing a general visual inspection to determine the manufacturer and manufacture date of the oxygen masks in each of the oxygen boxes in the passenger service units of the outboard and center main deck, the flight attendant service units, flightcrew rest, upper and lower module of the door 5 overhead crew rest, lavatory modules, and miscellaneous ceiling panels, as applicable. The service bulletin also describes procedures for doing related investigative and corrective actions. The related investigative action includes doing a general visual inspection of each flow indicator to determine the color of the flow direction mark and the word “flow” on the flow indicator, if the identification

(ID)label shows that the manufacturer is B/E Aerospace and the manufacture date is from January 1, 2002, through March 1, 2006. The corrective action includes replacing the oxygen mask assembly with a new oxygen mask assembly having an improved flow indicator, if the flow direction mark and the word “flow” on the flow indicator of the existing oxygen mask are not green and the letter “W” is shown on the right side of the ID label. Boeing Service Bulletin 747-35-2119 refers to B/E Aerospace Service Bulletin 174080-35-01, dated February 6, 2006; and Revision 1, dated May 1, 2006; as additional sources of service information for replacing an oxygen mask assembly with a new oxygen mask assembly having an improved flow indicator. B/E Aerospace Service Bulletin 174080-35-01 describes procedures for modifying the oxygen mask assembly by replacing the flow indicator, part number (P/N) 118023-02, with an improved flow indicator, P/N 118023-12. B/E Aerospace Service Bulletin 174080-35-01 also specifies that, as an alternative to modifying the oxygen mask, operators may replace the oxygen mask with a new oxygen mask having the improved flow indicator. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of This AD The unsafe condition described previously is likely to exist or develop on other airplanes of the same type design that may be registered in the U.S. at some time in the future. Therefore, we are issuing this AD to prevent the in-line flow indicators of the passenger oxygen masks from fracturing and separating, which could inhibit oxygen flow to the masks and consequently result in exposure of the passengers and cabin attendants to hypoxia following a depressurization event. This AD requires accomplishing the actions specified in the service information described previously. Clarification Between the AD and Service Bulletin Although Boeing Service Bulletin 747-35-2119 specifies to replace the oxygen mask assembly with a new oxygen mask assembly having an improved flow indicator, the intent of the service bulletin is to replace it with either a new or modified oxygen mask assembly having an improved flow indicator. Therefore, this proposed AD would require replacing the oxygen mask assembly with a new or modified oxygen mask assembly having an improved flow indicator. Costs of Compliance None of the airplanes affected by this action are on the U.S. Register. All airplanes affected by this AD are currently operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, we consider this AD necessary to ensure that the unsafe condition is addressed if any affected airplane is imported and placed on the U.S. Register in the future. If an affected airplane is imported and placed on the U.S. Register in the future, the required actions would take about 141 work hours per airplane, assuming an average of 600 oxygen masks per airplane distributed in about 150 oxygen boxes, at an average labor rate of $80 per work hour. Required parts would cost about $6 per oxygen mask, or $3,600 per airplane. Based on these figures, the estimated cost of the AD would be up to $14,880 per airplane. FAA's Determination of the Effective Date No airplane affected by this AD is currently on the U.S. Register. Therefore, providing notice and opportunity for public comment is unnecessary before this AD is issued, and this AD may be made effective in less than 30 days after it is published in the **Federal Register** . Comments Invited This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0336; Directorate Identifier 2007-NM-201-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments. We will post all comments we receive, without change, to * http:// www.regulations.gov * , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **2007-26-06 Boeing:** Amendment 39-15308. Docket No. FAA-2007-0336; Directorate Identifier 2007-NM-201-AD. Effective Date

(a)This AD becomes effective January 2, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Boeing Model 747-200B, 747-300, and 747-400 series airplanes, certificated in any category; as identified in Boeing Service Bulletin 747-35-2119, dated November 30, 2006. Unsafe Condition

(d)This AD results from a report that several passenger masks with broken in-line flow indicators were found following a mask deployment. We are issuing this AD to prevent the in-line flow indicators of the passenger oxygen masks from fracturing and separating, which could inhibit oxygen flow to the masks and consequently result in exposure of the passengers and cabin attendants to hypoxia following a depressurization event. 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. Inspection and Related Investigative/Corrective Actions if Necessary

(f)Within 60 months after the effective date of this AD, do a general visual inspection to determine the manufacturer and manufacture date of the oxygen masks in each of the oxygen boxes in the passenger service units of the outboard and center main deck, the flight attendant service units, flightcrew rest, upper and lower module of the door 5 overhead crew rest, lavatory modules, and miscellaneous ceiling panels, as applicable, and do all the applicable related investigative and corrective actions, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Boeing Service Bulletin 747-35-2119, dated November 30, 2006; except where the service bulletin specifies replacing the oxygen mask assembly with a new oxygen mask assembly, replace it with a new or modified oxygen mask assembly having an improved flow indicator. The related investigative and corrective actions must be done before further flight. Note 1: The service bulletin refers to B/E Aerospace Service Bulletin 174080-35-01, dated February 6, 2006; and Revision 1, dated May 1, 2006; as additional sources of service information for modifying the oxygen mask assembly by replacing the flow indicator with an improved flow indicator. Alternative Methods of Compliance (AMOCs) (g)(1) The Manager, Seattle Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

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

(h)You must use Boeing Service Bulletin 747-35-2119, dated November 30, 2006, to perform the actions that are required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference of this document in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for a copy of this service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html.* Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24334 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28854; Directorate Identifier 2007-NM-109-AD; Amendment 39-15307; AD 2007-26-05] RIN 2120-AA64 Airworthiness Directives; Boeing Model 777-200, -200LR, -300, and -300ER Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is adopting a new airworthiness directive

(AD)for all Boeing Model 777-200, -200LR, -300, and -300ER series airplanes. This AD requires doing initial and repetitive inspections for cracking of the elevator actuator fittings, and replacing any cracked fitting with a new fitting. This AD results from a report that a cracked left elevator actuator fitting was found on a Model 777 airplane. We are issuing this AD to detect and correct a cracked actuator fitting, which could detach from the elevator and lead to an unrestrained elevator and an unacceptable flutter condition, which could result in loss of airplane control. DATES: This AD becomes effective January 22, 2008. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of January 22, 2008. ADDRESSES: 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 AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is the Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Gary Oltman, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)917-6443; fax

(425)917-6590. SUPPLEMENTARY INFORMATION: Discussion The FAA issued a notice of proposed rulemaking

(NPRM)to amend 14 CFR part 39 to include an AD that would apply to all Boeing Model 777-200, -200LR, -300, and -300ER series airplanes. That NPRM was published in the **Federal Register** on August 2, 2007 (72 FR 42326). That NPRM proposed to require doing initial and repetitive inspections for cracking of the elevator actuator fittings, and replacing any cracked fitting with a new fitting. Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comments received. Request To Revise Incorrect Wording Two commenters, Boeing and Continental Airlines, request that we revise an incorrect word in the NPRM. The commenters state that, under the Relevant Service Information section of the NPRM, the third bulleted item, which reads, in part, “before the accumulation of 10,000 total flight cycles or within 12 months after the date on the service bulletin, whichever occurs first,” should actually read “* * * whichever occurs later.” The commenters request that we make this change so the NPRM will conform to the actual compliance time specified by Boeing Alert Service Bulletin 777-55A0015, dated April 19, 2007, which is cited as the appropriate source of service information for accomplishing the proposed requirements of the NPRM. We partially agree with this request. We agree that the specified word “first” should be “later,” to conform to the service bulletin. However, the Relevant Service Information section of the NPRM is not carried forward in the final rule; therefore, it is not necessary to change the AD in this regard. Conclusion We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD as proposed. Costs of Compliance There are about 619 airplanes of the affected design in the worldwide fleet. This AD affects about 138 airplanes of U.S. registry. The required inspections take about 4 work hours per airplane, per inspection cycle, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the AD for U.S. operators is $44,160, 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 AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:

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

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

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **2007-26-05 Boeing:** Amendment 39-15307. Docket No. FAA-2007-28854; Directorate Identifier 2007-NM-109-AD. Effective Date

(a)This AD becomes effective January 22, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to all Boeing Model 777-200, -200LR, -300, and -300ER series airplanes, certificated in any category. Unsafe Condition

(d)This AD results from a report that a cracked left elevator actuator fitting was found on a Model 777 airplane. We are issuing this AD to detect and correct a cracked actuator fitting, which could detach from the elevator and lead to an unrestrained elevator and an unacceptable flutter condition, which could result in loss of airplane control. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Inspections

(f)At the applicable time specified in paragraph 1.E. “Compliance” of Boeing Alert Service Bulletin 777-55A0015, dated April 19, 2007, do an initial dye penetrant or high-frequency eddy current

(HFEC)inspection for cracking of the elevator actuator fittings, and, thereafter, do repetitive dye penetrant, HFEC, or detailed inspections at the applicable times specified in paragraph 1.E. “Compliance.” Before further flight, replace any fitting found to be cracked during any inspection required by this AD with a new fitting having the same part number, or an optional part number as identified in the service bulletin. Thereafter, do initial and repetitive inspections of the replacement fitting as described in paragraph 1.E. of the service bulletin. Do all inspections and actions described in this paragraph in accordance with the Accomplishment Instructions 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. Alternative Methods of Compliance (AMOCs) (g)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

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

(h)You must use Boeing Alert Service Bulletin 777-55A0015, dated April 19, 2007, to perform the actions that are required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference of this document in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for a copy of this service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html.* Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24338 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28990; Directorate Identifier 2007-NM-033-AD; Amendment 39-15304; AD 2007-26-02] RIN 2120-AA64 Airworthiness Directives; Boeing Model 757-200, -200CB, and -300 Series Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive

(AD)for certain Boeing Model 757-200, -200CB, and -300 series airplanes. This AD requires repetitive detailed inspections with a borescope for cracks of the intercostal tee clips; or repetitive detailed inspections for cracks of the intercostal tee clips and attachment fasteners at the number 3 and number 4 doorstops of the passenger door cutouts; and related investigative and corrective actions if necessary. This AD also provides an optional terminating action for the repetitive inspections. This AD results from reports of cracked intercostal tee clips at the number 3 and number 4 doorstops of the passenger door cutouts. We are issuing this AD to detect and correct cracking of the tee clips, which could result in additional stress on the adjacent tee clips, surrounding intercostals, edge frame, door structure and doorstops. This additional stress could cause further cracking or breaking of the tee clips, which could result in failure of the door to seal and consequent rapid decompression of the airplane. DATES: This AD is effective January 22, 2008. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of January 22, 2008. We must receive comments on this AD by January 22, 2008. ADDRESSES: 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 AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is the Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Jason Deutschman, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)917-6449; fax

(425)917-6590. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking

(NPRM)to amend 14 CFR part 39 to include an airworthiness directive

(AD)that would apply to certain Boeing Model 757-200, -200CB, and -300 series airplanes. That NPRM was published in the **Federal Register** on August 16, 2007 (72 FR 45961). That NPRM proposed to require repetitive inspections for cracks of the intercostal tee clips and attachment fasteners at the number 3 and number 4 doorstops of the passenger door cutouts, or repetitive inspections for cracks of the intercostal tee clips; and related investigative/corrective actions if necessary. That NPRM also provides an optional terminating action for the repetitive inspections. Comments We gave the public the opportunity to participate in developing this AD. We considered the comments received. Support for the NPRM Continental Airlines

(CAL)supports the NPRM and notes that it has an on-going customized passenger door maintenance program already in place to inspect the subject area on its airplanes at 4C and 8C heavy checks. CAL adds that it has found no cracks on its airplanes, but intends to incorporate the terminating action provided in the NPRM at the next 4C or 8C opportunity. Request To Include Access and Close-up Costs Boeing asks that the costs to gain and close access for the proposed detailed inspection be included to better reflect the cost difference between the two inspection options provided in the NPRM (detailed versus borescope). Boeing estimates 9.5 work hours to gain access by removing existing galleys, and Boeing estimates another 10 work hours to replace the galleys after inspection to close access. Boeing states that this adds a total of 19.5 hours of work at a cost of $1,560 per airplane based on an average labor rate of $80 per work hour. This adds up to an additional cost to the fleet of $505,440 over the $51,840 cost that is shown. This access cost is not incurred if the alternative borescope inspection method is used; however, if repairs are to be performed, either to address cracking or to terminate inspections, the access and close-out costs would be incurred in addition to parts costs in order to perform the required part replacements. Boeing adds that this would affect the supplementary information in the estimated Costs of Compliance paragraph. We acknowledge Boeing's concerns. However, because operators are given the option of doing the detailed inspection or the detailed inspection with a borescope (which takes longer), the cost depends on which inspection is done. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, or the costs of “on-condition” actions such as repairs (that is, actions needed to correct an unsafe condition). We have made no change to the AD in this regard. Clarification of Summary Language We revised the Summary section of this final rule to specify the repetitive inspection methods. Conclusion We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD as proposed. 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 AD requires 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 912 airplanes of the affected design in the worldwide fleet. This AD affects about 324 airplanes of U.S. registry. The detailed inspection, if accomplished, takes about 2 work hours per airplane, at an average work rate of $80 per work hour. Based on these figures, the estimated cost of the detailed inspections required by this AD is $51,840, or $160 per airplane, per inspection cycle. The borescope inspection, if accomplished, takes about 3 work hours per airplane, at an average work rate of $80 per work hour. Based on these figures, the estimated cost of the borescope inspections required by this AD is $77,760, or $240 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 This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:

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

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

(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **2007-26-02 Boeing:** Amendment 39-15304. Docket No. FAA-2007-28990; Directorate Identifier 2007-NM-033-AD. Effective Date

(a)This airworthiness directive

(AD)is effective January 22, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Boeing Model 757-200, -200CB, and -300 series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 757-53A0093, dated November 8, 2006. Unsafe Condition

(d)This AD results from reports of cracked intercostal tee clips at the number 3 and number 4 doorstops of the passenger door cutouts. We are issuing this AD to detect and correct cracking of the tee clips, which could result in additional stress on the adjacent tee clips, surrounding intercostals, edge frame, door structure and doorstops. This additional stress could cause further cracking or breaking of the tee clips, which could result in failure of the door to seal and consequent 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. Repetitive Inspections/Investigative and Corrective Actions

(f)Before the accumulation of 20,000 total flight cycles or within 3,000 flight cycles after the effective date of this AD, whichever is later: Do the applicable inspection specified in paragraph (f)(1) or (f)(2) of this AD by doing all the actions including all applicable related investigative (additional detailed inspections if necessary) and corrective actions; except as provided by paragraph

(g)of this AD; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0093, dated November 8, 2006. All related investigative and corrective actions must be done before further flight.

(1)Do a detailed inspection for cracks of the intercostal tee clips and attachment fasteners at the number 3 and number 4 doorstops of the passenger door cutouts. Repeat the inspection thereafter at intervals not to exceed 3,000 flight cycles until accomplishment of the terminating action specified in paragraph

(h)of this AD.

(2)Do a detailed inspection with a borescope for cracks of the intercostal tee clips. Repeat the inspection thereafter at intervals not to exceed 3,000 flight cycles until accomplishment of the terminating action specified in paragraph

(h)of this AD.

(g)If any cracked structure is found during any inspection required by this AD, and the Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0093, dated November 8, 2006, specify to contact Boeing for appropriate action: Before further flight, repair any cracked structure using a method approved in accordance with the procedures specified in paragraph (i)(2) of this AD. Optional Terminating Action

(h)Replacing both intercostal tee clips on the left and right sides with new tee clips in accordance with Part 3 of the Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0093, dated November 8, 2006, terminates the repetitive inspections required by this AD. 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)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.

(3)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

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

(j)You must use Boeing Alert Service Bulletin 757-53A0093, dated November 8, 2006, to do the actions required by this AD, unless the AD specifies otherwise.

(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.

(2)For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207.

(3)You may review copies of the service information incorporated by reference at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24337 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28942; Directorate Identifier 2007-NM-093-AD; Amendment 39-15306; AD 2007-26-04] RIN 2120-AA64 Airworthiness Directives; Boeing Model 737-100, -200, -200C, -300, -400, and -500 Series Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive

(AD)for certain Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This AD requires repetitive detailed and high-frequency eddy current inspections for cracking around the heads of the fasteners on the forward fastener row of certain areas of the station

(STA)259.5 circumferential butt splice, and repair if necessary. This AD also requires a preventive modification, which eliminates the need for the repetitive inspections. This AD results from a report that an operator found multiple cracks in the fuselage skin of a Model 737-200 airplane, at the forward fastener row of the STA 259.5 circumferential butt splice between stringers 19 and 24. We are issuing this AD to prevent cracking of the STA 259.5 circumferential butt splice, which could result in loss of structural integrity of the fuselage skin and possible loss of cabin pressure. DATES: This AD is effective January 22, 2008. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of January 22, 2008. ADDRESSES: 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 AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)917-6447; fax

(425)917-6590. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking

(NPRM)to amend 14 CFR part 39 to include an airworthiness directive

(AD)that would apply to certain Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. That NPRM was published in the **Federal Register** on August 16, 2007 (72 FR 45949). That NPRM proposed to require repetitive detailed and high-frequency eddy current inspections for cracking around the heads of the fasteners on the forward fastener row of certain areas of the station

(STA)259.5 circumferential butt splice, and repair if necessary. That NPRM also proposed to require a preventive modification, which would eliminate the need for the repetitive inspections. Comments We gave the public the opportunity to participate in developing this AD. We considered the comment received. Boeing supports the NPRM. Conclusion We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting the AD as proposed. Costs of Compliance There are about 2,150 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this AD, at an average labor rate of $80 per work hour. Required parts will be supplied by the operator. Estimated Costs Action Work hours Cost per airplane Number of U.S.-registered airplanes Fleet cost Inspection 5 $400, per inspection cycle 654 $261,600, per inspection cycle. Preventive modification 24 $1,920 654 $1,255,680. 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 This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:

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

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

(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **2007-26-04 Boeing:** Amendment 39-15306. Docket No. FAA-2007-28942; Directorate Identifier 2007-NM-093-AD. Effective Date

(a)This airworthiness directive

(AD)is effective January 22, 2008. Affected ADs

(b)Accomplishing repairs and modifications described in paragraphs

(f)and

(g)of this AD is considered acceptable for compliance with repair requirements of paragraphs

(f)and

(g)of AD 92-25-09, amendment 39-8424, for the areas of the station

(STA)259.5 circumferential butt splice only. Applicability

(c)This AD applies to Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category, as identified in Boeing Special Attention Service Bulletin 737-53-1267, dated November 28, 2006. Unsafe Condition

(d)This AD results from a report that an operator found multiple cracks in the fuselage skin of a Model 737-200 airplane, at the forward fastener row of the STA 259.5 circumferential butt splice between stringers 19 and 24. We are issuing this AD to prevent cracking of the STA 259.5 circumferential butt splice, which could result in loss of structural integrity of the fuselage skin and possible 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. Inspections

(f)At the applicable initial compliance time specified in paragraph 1.E. “Compliance” of Boeing Special Attention Service Bulletin 737-53-1267, dated November 28, 2006, except as provided by paragraph

(j)of this AD: Do detailed and high-frequency eddy current inspections for cracking around the heads of the fasteners on the forward fastener row of certain areas of the STA 259.5 circumferential butt splice, by doing all of the actions specified in Part 1 of the Accomplishment Instructions of the service bulletin, except as provided by paragraph

(i)of this AD. Repeat the inspections thereafter at the intervals specified in paragraph 1.E. of the service bulletin. Doing the preventive modification specified in paragraph

(h)of this AD terminates the repetitive inspection requirements of this paragraph. Repair

(g)If any crack is found during any inspection required by this AD, before further flight, repair in accordance with Part 1 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1267, dated November 28, 2006. Preventive Modification

(h)At the compliance time specified in paragraph 1.E. of Boeing Special Attention Service Bulletin 737-53-1267, dated November 28, 2006, except as provided by paragraph

(j)of this AD: Do the preventive modification in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1267, dated November 28, 2006. Doing the preventive modification terminates the repetitive inspections required by paragraph

(f)of this AD. Modification or Repair Done in Accordance With AD 92-25-09

(i)Inspections described in paragraph

(f)of this AD are not required for areas of the STA 259.5 circumferential butt splice that have been modified in accordance with the service information specified in Table 1 of this AD. (Boeing Service Bulletin 737-53-1076, Revision 2, dated February 8, 1990; and Revision 4, dated September 26, 1991; are cited as appropriate sources of service information for doing certain requirements of AD 92-25-09.) Table 1.—Service Information Boeing Service Bulletin— Revision level— Date— 737-53-1076 4 September 26, 1991. 737-53-1076 3 September 20, 1990. 737-53-1076 2 February 8, 1990. 737-53-1076 1 November 23, 1988. 737-53-1076 Original October 30, 1986. Compliance Times

(j)Where Boeing Special Attention Service Bulletin 737-53-1267, dated November 28, 2006, specifies compliance times relative to the release date of the service bulletin, this AD requires compliance at compliance times relative to the effective date of this AD. Alternative Methods of Compliance (AMOCs) (k)(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.

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

(l)You must use Boeing Special Attention Service Bulletin 737-53-1267, dated November 28, 2006, to do the actions required by this AD, unless the AD specifies otherwise.

(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.

(2)For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207.

(3)You may review copies of the service information incorporated by reference at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24335 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28924; Directorate Identifier 2007-NM-051-AD; Amendment 39-15305; AD 2007-26-03] RIN 2120-AA64 Airworthiness Directives; Boeing Model 747-200C and -200F Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is adopting a new airworthiness directive

(AD)for certain Boeing Model 747-200C and -200F series airplanes. This AD requires, among other actions, installing mounting brackets, support angles, and moisture curtains in the main equipment center. This AD results from reports of water contamination in the electrical/electronic units in the main equipment center. We are issuing this AD to prevent water contamination of the electrical/electronic units, which could cause the electrical/electronic units to malfunction, and as a consequence, could adversely affect the airplane's continued safe flight. DATES: This AD becomes effective January 22, 2008. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of January 22, 2008. ADDRESSES: 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 AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is the Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Marcia Smith, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)917-6484; fax

(425)917-6590. SUPPLEMENTARY INFORMATION: Discussion The FAA issued a notice of proposed rulemaking

(NPRM)to amend 14 CFR part 39 to include an AD that would apply to certain Boeing Model 747-200C and -200F series airplanes. That NPRM was published in the **Federal Register** on August 16, 2007 (72 FR 45954). That NPRM proposed to require, among other actions, installing mounting brackets, support angles, and moisture curtains in the main equipment center. Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comment received. Request To Refer to Earlier Revision of a Referenced Service Bulletin Boeing requests that paragraph

(g)of the NPRM be revised to include Boeing Alert Service Bulletin 747-38A2073, Revision 1, dated June 21, 1990; and Revision 2, dated April 26, 2001; as additional sources of service information for accomplishing the prior or concurrent requirements. Boeing states that this will align the NPRM with Boeing Alert Service Bulletin 747-38A2073, Revision 3, dated May 22, 2003 (referred to in the NPRM as an appropriate source of service information for accomplishing the prior or concurrent requirements). We partially agree. We agree with Boeing that accomplishing the actions specified in Revisions 1 and 2 of Boeing Alert Service Bulletin 747-38A2073 is acceptable for compliance with the corresponding actions required by paragraph

(g)of this AD. However, we do not agree that a change to the final rule is necessary. As mentioned in the Relevant Service Information section of the NPRM, AD 2001-24-30, amendment 39-12547 (66 FR 64104, December 12, 2001), requires installing drip shields in accordance with Boeing Alert Service Bulletin 747-38A-2073, Revision 2; or in accordance with Revision 1 or Original Release, dated November 30, 1989, if done before the effective date of that AD. In addition, paragraph

(h)of this AD states, “Installation of drip shields before the effective date of this AD in accordance with paragraph

(a)and Note 2 of AD 2001-24-30, amendment 39-12547, is acceptable for compliance with the corresponding actions in paragraph

(g)of this AD.” We have made no change to the final rule in this regard. Conclusion We have carefully reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD as proposed. Interim Action This is considered to be interim action. The manufacturer has advised that it currently is developing another modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, the FAA might consider additional rulemaking. Costs of Compliance There are about 79 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this AD. Estimated Costs Action Work hours Average labor rate per hour Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Installation 3 $80 $8,960 $9,200 25 $230,000 Prior or concurrent requirements of AD 2001-24-30 32 80 4,497 7,057 25 176,425 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:

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

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

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **2007-26-03 Boeing:** Amendment 39-15305. Docket No. FAA-2007-28924; Directorate Identifier 2007-NM-051-AD. Effective Date

(a)This AD becomes effective January 22, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Boeing Model 747-200C and -200F series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 747-25A3430, dated February 15, 2007. Unsafe Condition

(d)This AD results from reports of water contamination in the electrical/electronic units in the main equipment center. We are issuing this AD to prevent water contamination of the electrical/electronic units, which could cause the electrical/electronic units to malfunction, and as a consequence, could adversely affect the airplane's continued safe flight. 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. Installations

(f)Within 24 months after the effective date of this AD, install mounting brackets, support angles, and moisture curtains in the main equipment center, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-25A3430, dated February 15, 2007. Prior or Concurrent Requirements

(g)For airplanes identified as Group 1 and Group 3 airplanes in Boeing Alert Service Bulletin 747-25A3430, dated February 15, 2007: Prior to or concurrently with the requirements of paragraph

(f)of this AD, install drip shields (including a drip pan assembly, drain tubing, and attaching hardware) over the forward, outboard halves of the E1-1 and E3-1 shelves in the main equipment bay, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-38A2073, Revision 3, dated May 22, 2003.

(h)Installation of drip shields before the effective date of this AD in accordance with paragraph

(a)and Note 2 of AD 2001-24-30, amendment 39-12547, is acceptable for compliance with the corresponding actions specified in paragraph

(g)of this AD. Alternative Methods of Compliance (AMOCs) (i)(1) The Manager, Seattle Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

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

(j)You must use the service bulletins identified in Table 1 of this AD to perform the actions that are required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference of these documents in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for a copy of this service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Table 1.—Material Incorporated by Reference Service Bulletin Revision level Date Boeing Alert Service Bulletin 747-25A3430 Original February 15, 2007. Boeing Alert Service Bulletin 747-38A2073 3 May 22, 2003. Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24340 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF COMMERCE Bureau of Economic Analysis 15 CFR Part 806 [Docket No. 07 0301041-7802-03] RIN 0691-AA63 Direct Investment Surveys: BE-11, Annual Survey of U.S. Direct Investment Abroad AGENCY: Bureau of Economic Analysis, Commerce. ACTION: Final rule. SUMMARY: This final rule amends regulations concerning the reporting requirements for the BE-11, Annual Survey of U.S. Direct Investment Abroad. The BE-11 survey is conducted annually and is a sample survey that obtains financial and operating data covering the overall operations of U.S. parent companies and their foreign affiliates. BEA is expanding the reporting requirements on the BE-11 annual survey so that U.S. parent companies that are banks, foreign affiliates of bank parents, and bank foreign affiliates of nonbank parents are reportable. A few minor changes are required to the instructions on Form BE-11A, Report for U.S. Reporter, so it can be used to collect bank as well as nonbank data. BEA is implementing a new, specialized Form BE-11B(FN) for foreign affiliates of bank parents and bank foreign affiliates of nonbank parents. DATES: This final rule will be effective January 16, 2008. FOR FURTHER INFORMATION CONTACT: David H. Galler, Chief, Direct Investment Division (BE-50), Bureau of Economic Analysis, U.S. Department of Commerce, Washington, DC 20230; phone

(202)606-9835 or e-mail ( *david.galler@bea.gov* ). SUPPLEMENTARY INFORMATION: In the September 13, 2007, **Federal Register** , 72 FR 52316-52319, BEA published a notice of proposed rulemaking setting forth revised reporting requirements for the BE-11, Annual Survey of U.S. Direct Investment Abroad. No comments on the proposed rule were received. Thus, the proposed rule is adopted without change. This final rule amends 15 CFR Part 806.14 to set forth the reporting requirements for the BE-11, Annual Survey of U.S. Direct Investment Abroad. Description of Changes The BE-11 survey is a mandatory survey and is conducted annually by BEA under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108), hereinafter, “the Act.” BEA will send the survey to potential respondents in March of each year; responses will be due by May 31. This final rule expands the reporting requirements on the BE-11 annual survey so that U.S. parent companies that are banks and their foreign affiliates and bank foreign affiliates of nonbank U.S. parent companies will now be reportable. Until now, collection of data on the BE-11 annual survey has been limited to that of nonbank U.S. parent companies and their nonbank foreign affiliates. Data for bank U.S. parent companies and their bank and nonbank foreign affiliates and data for bank affiliates of nonbank U.S. parent companies have been collected only once every five years on BEA's BE-10, Benchmark Survey of U.S. Direct Investment Abroad. To collect data for a U.S. Reporter that is a bank, BEA will use the BE-11A, Report for U.S. Reporter, that is used for nonbank U.S. parents. BEA will use a new, specialized form, Form BE-11B(FN), for collecting data for foreign affiliates of bank U.S. parents and bank affiliates of nonbank U.S. parents. The items to be collected on this form include most of those collected on the form used for bank affiliates on the BE-10 benchmark survey and a few additional items, including sales of services by destination and employment by broad occupational structure, that will make the data more useful for studies of offshoring and more comparable with the data collected for nonbank affiliates of nonbank parents. Because affiliates of bank parents and bank affiliates of nonbank parents tend to be quite large, BEA set the exemption level for reporting on Form BE-11B(FN) at $250 million. Foreign affiliates of bank U.S. parents and bank affiliates of nonbank U.S. parents with total assets, sales or gross operating revenues, and net income of $250 million or less (positive or negative) will not be required to be reported on the annual survey. Instructions on the forms and in the instruction booklet will be modified to include banks. Survey Background The Bureau of Economic Analysis (BEA), U.S. Department of Commerce, conducts the BE-11 survey under the authority of the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108), hereinafter, “the Act.” Section 4(a) of the Act requires that with respect to United States direct investment abroad, the President shall, to the extent he deems necessary and feasible, conduct a regular data collection program to secure current information on international financial flows and other information related to international investment and trade in services, including (but not limited to) such information as may be necessary for computing and analyzing the United States balance of payments, the employment and taxes of United States parents and affiliates, and the international investment and trade in services position of the United States. In Section 3 of Executive Order 11961, as amended by Executive Orders 12318 and 12518, the President delegated the responsibility for performing functions under the Act concerning direct investment to the Secretary of Commerce, who has redelegated it to BEA. The annual survey of U.S. direct investment abroad is a sample survey that collects information on a variety of measures of the overall operations of U.S. parent companies and their foreign affiliates, including total assets, sales, net income, employment and employee compensation, research and development expenditures, and exports and imports of goods. The sample data are used to derive universe estimates in nonbenchmark years from similar data reported in the BE-10, Benchmark Survey of U.S. Direct Investment Abroad, which is taken every five years. The data are needed to measure the size and economic significance of direct investment abroad, measure changes in such investment, and assess its impact on the U.S. and foreign economies. The data are disaggregated by country and industry of the foreign affiliate and by industry of the U.S. parent. Executive Order 12866 This final rule has been determined to be not significant for purposes of E.O. 12866. Executive Order 13132 This final rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under E.O. 13132. Paperwork Reduction Act The collection of information in this final rule has been approved by the Office of Management and Budget

(OMB)under the Paperwork Reduction Act (PRA). Notwithstanding any other provisions of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection displays a currently valid OMB control number. The BE-11 survey is expected to result in the filing of reports from approximately 1,550 respondents. The respondent burden for this collection of information will vary from one company to another, but is estimated to average 79.3 hours per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus the total respondent burden of the survey is estimated at 122,900 hours (1,550 respondents times 79.3 hours average burden). This estimate is slightly above the burden of 117,600 hours currently requested for this survey in the OMB inventory. Comments regarding the burden estimate or any other aspect of this collection of information should be addressed to: Director, Bureau of Economic Analysis (BE-1), U.S. Department of Commerce, Washington, DC 20230; FAX: 202-606-5311; and to the Office of Management and Budget, O.I.R.A., Paperwork Reduction Project 0608-0053, Attention PRA Desk Officer for BEA, via e-mail at *pbugg@omb.eop.gov,* or by FAX at 202-395-7245. Regulatory Flexibility Act The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under the provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that this rule will not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding the economic impact of the rule. As a result, no final regulatory flexibility analysis was prepared. List of Subjects in 15 CFR Part 806 U.S. investment abroad, Multinational corporations, Economic statistics, Penalties, Reporting and recordkeeping requirements. Dated: November 29, 2007. J. Steven Landefeld, Director, Bureau of Economic Analysis. For the reasons set forth in the preamble, BEA amends 15 CFR part 806 as follows: PART 806—DIRECT INVESTMENT SURVEYS 1. The authority citation for 15 CFR part 806 continues to read as follows: Authority: 5 U.S.C. 301; 22 U.S.C. 3101-3108; E.O. 11961 (3 CFR, 1977 Comp., p. 86), as amended by E.O. 12318 (3 CFR, 1981 Comp., p. 173) and E.O. 12518 (3 CFR, 1985 Comp., p. 348). 2. Section 806.14(f)(3) is revised to read as follows: § 806.14 U.S. direct investment abroad.

(f)* * *

(3)BE-11—Annual survey of U.S. Direct Investment Abroad: A report, consisting of Form BE-11A and Form(s) BE-11B(LF)(Long Form), BE-11B(SF)(Short Form), BE-11B(FN), BE- 11B(EZ), and/or BE-11C, is required of each U.S. Reporter that, at the end of the Reporter's fiscal year, had a foreign affiliate reportable on Form BE-11B(LF), (SF), (FN), (EZ), or BE-11C. Forms required and the criteria for reporting on each are as follows:

(i)Form BE-11A (Report for U.S. Reporter) must be filed by each U.S. person having a foreign affiliate reportable on Form BE-11B(LF), (SF), (FN), (EZ), or BE-11C. If the U.S. Reporter is a corporation, Form BE-11A is required to cover the fully consolidated U.S. domestic business enterprise. However, where a U.S. Reporter's primary line of business is not in banking (or related financial activities), but the Reporter also has ownership in a bank, the bank, including all of its domestic subsidiaries or units, must file on a separate Form BE-11A. The nonbanking U.S. operations not owned by the bank must also file on a Form BE-11A.

(A)If for a U.S. Reporter any one of the following three items—total assets, sales or gross operating revenues excluding sales taxes, or net income after provision for U.S. income taxes—was greater than $150 million (positive or negative) at the end of, or for, the Reporter's fiscal year, the U.S. Reporter must file a complete Form BE-11A. It must also file a Form BE-11B(LF), (SF), (FN), (EZ), or BE-11C as applicable, for each nonexempt foreign affiliate.

(B)If for a U.S. Reporter no one of the three items listed in paragraph (f)(3)(i)(A) of this section was greater than $150 million (positive or negative) at the end of, or for, the Reporter's fiscal year, the U.S. Reporter is required to file on Form BE-11A only items 1 through 31 and Part IV. It must also file a Form BE-11B(LF), (SF), (FN), (EZ), or BE-11C as applicable, for each nonexempt foreign affiliate.

(ii)Forms BE-11B(LF), (SF), and

(EZ)(Report for Majority-owned Nonbank Foreign Affiliate of Nonbank U.S. Reporter).

(A)A BE-11B(LF)(Long Form) must be filed for each majority-owned nonbank foreign affiliate of a nonbank U.S. Reporter for which any one of the three items—total assets, sales or gross operating revenues excluding sales taxes, or net income after provision for foreign income taxes—was greater than $150 million (positive or negative) at the end of, or for, the affiliate's fiscal year, unless the nonbank foreign affiliate is selected to be reported on Form BE-11B(EZ).

(B)A BE-11B(SF)(Short Form) must be filed for each majority-owned nonbank foreign affiliate of a nonbank U.S. Reporter for which any one of the three items listed in paragraph (f)(3)(ii)(A) of this section was greater than $40 million (positive or negative), but for which no one of these items was greater than $150 million (positive or negative), at the end of, or for, the affiliate's fiscal year, unless the nonbank foreign affiliate is selected to be reported on Form BE-11B(EZ).

(C)A BE-11B(EZ) must be filed for each nonbank foreign affiliate of a nonbank U.S. Reporter that is selected to be reported on this form in lieu of Form BE-11B(LF) or Form BE-11B(SF).

(iii)Form BE-11B(FN) (Report for Foreign Affiliate of Bank U.S. Reporter and Bank Affiliate of Nonbank U.S. Reporter) must be filed for 1) each foreign affiliate (bank and nonbank) of a bank U.S. Reporter for which any one of the three items listed in paragraph (f)(3)(ii)(A) of this section was greater than $250 million (positive or negative) at the end of, or for, the affiliate's fiscal year and 2) each bank foreign affiliate of a nonbank U.S. Reporter for which any one of the three items listed in paragraph (f)(3)(ii)(A) of this section was greater than $250 million (positive or negative) at the end of, or for, the affiliate's fiscal year.

(iv)Form BE-11C (Report for Minority-owned Nonbank Foreign Affiliate of Nonbank U.S. Reporter) must be filed for each minority-owned nonbank foreign affiliate of a nonbank U.S. Reporter that is owned at least 20 percent, but not more than 50 percent, directly and/or indirectly, by all U.S. Reporters of the affiliate combined, and for which any one of the three items listed in paragraph (f)(3)(ii)(A) of this section was greater than $40 million (positive or negative) at the end of, or for, the affiliate's fiscal year. In addition, for the report covering fiscal year 2007 only, a Form BE-11C must be filed for each minority-owned nonbank foreign affiliate that is owned, directly or indirectly, at least 10 percent by one nonbank U.S. Reporter, but less than 20 percent by all nonbank U.S. Reporters of the affiliate combined, and for which any one of the three items listed in paragraph (f)(3)(ii)(A) of this section was greater than $100 million (positive or negative) at the end of, or for, the affiliate's fiscal year.

(v)Based on the preceding, an affiliate is exempt from being reported if it meets any one of the following criteria:

(A)For nonbank affiliates of nonbank U.S. Reporters, none of the three items listed in paragraph (f)(3)(ii)(A) of this section exceeds $40 million (positive or negative). However, affiliates that were established or acquired during the year and for which at least one of these items was greater than $10 million but not over $40 million must be listed, and key data items reported, on a supplement schedule on Form BE-11A.

(B)For affiliates of bank U.S. Reporters and bank affiliates of nonbank U.S. Reporters, none of the three items listed in paragraph (f)(3)(ii)(A) of this section exceeds $250 million (positive or negative). However, affiliates that were established or acquired during the year and for which at least one of these items was greater than $10 million but not over $250 million must be listed, and key data items reported, on a supplement schedule on Form BE-11A.

(C)For nonbank foreign affiliates of nonbank U.S. Reporters, for fiscal year 2007 only, it is less than 20 percent owned, directly or indirectly, by all U.S. Reporters of the affiliate combined and none of the three items listed in paragraph (f)(3)(ii)(A) of this section exceeds $100 million (positive or negative).

(D)For fiscal years other than 2007, it is less than 20 percent owned, directly or indirectly, by all U.S. Reporters of the affiliate combined.

(vi)Notwithstanding paragraph (f)(3)(v) of this section, a Form BE-11B(LF), (SF), (FN),

(EZ)or BE-11C must be filed for a foreign affiliate of the U.S. Reporter that owns another non-exempt foreign affiliate of that U.S. Reporter, even if the foreign affiliate parent is otherwise exempt. That is, all affiliates upward in the chain of ownership must be reported. [FR Doc. E7-24362 Filed 12-14-07; 8:45 am] BILLING CODE 3510-06-P PENSION BENEFIT GUARANTY CORPORATION 29 CFR Parts 4006 and 4007 RIN 1212-AB10 Premium Rates; Payment of Premiums; Flat Premium Rates, Variable-Rate Premium Cap, and Termination Premium; Deficit Reduction Act of 2005; Pension Protection Act of 2006 AGENCY: Pension Benefit Guaranty Corporation. ACTION: Final rule. SUMMARY: This is a final rule to amend PBGC's regulations on Premium Rates and Payment of Premiums to implement certain provisions of the Deficit Reduction Act of 2005 (Pub. L. 109-171) and the Pension Protection Act of 2006 (Pub. L. 109-280) that are effective beginning in 2006 or 2007. The provisions implemented by this rule change the flat premium rate, cap the variable-rate premium in some cases, and create a new “termination premium” that is payable in connection with certain distress and involuntary plan terminations. This rule does not address other provisions of the Pension Protection Act of 2006 that deal with PBGC premiums. DATES: Effective January 16, 2008. FOR FURTHER INFORMATION CONTACT: John H. Hanley, Director, Legislative and Regulatory Department; or Catherine B. Klion, Manager, or Deborah C. Murphy, Attorney, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington DC 20005-4026; 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.) SUPPLEMENTARY INFORMATION: Background Pension Benefit Guaranty Corporation

(PBGC)administers the pension plan termination insurance program under Title IV of the Employee Retirement Income Security Act of 1974 (ERISA). Pension plans covered by Title IV must pay premiums to PBGC. Section 4006 of ERISA deals with premium rates, and section 4007 of ERISA deals with the payment of premiums, including premium due dates, interest and penalties on premiums not timely paid, and persons liable for premiums. On February 8, 2006, the President signed into law the Deficit Reduction Act of 2005, Pub. L. 109-171 (DRA 2005). Section 8101 of DRA 2005 amends section 4006 of ERISA. Section 8101(a) changes the per-participant flat premium rate for plan years beginning in 2006 from $19 to $30 for single-employer plans and from $2.60 to $8 for multiemployer plans and provides for inflation adjustments to the flat rates for future years. Section 8101(b) creates a new “termination premium” (in addition to the flat-rate and variable-rate premiums under section 4006(a)(3)(A) and

(E)of ERISA) that is payable for three years following certain distress and involuntary plan terminations that occur after 2005. On August 17, 2006, the President signed into law the Pension Protection Act of 2006, Public Law 109-280 (PPA 2006). Sections 401(b) and 402(g)(2)(B) of PPA 2006 make changes to the termination premium rules of DRA 2005. Section 405 of PPA 2006 amends section 4006 of ERISA to cap the variable-rate premium for plans of certain small employers beginning in 2007. (PPA 2006 also makes other changes affecting PBGC premiums that are not addressed in this rule.) On February 20, 2007, PBGC published (at 72 FR 7755) a proposed rule to amend PBGC's regulations on Premium Rates (29 CFR part 4006) and Payment of Premiums (29 CFR part 4007) to conform to these requirements of DRA 2005 and PPA 2006 and to clarify how the requirements apply. PBGC received one public comment on the proposed rule. The comment focused on the termination premium and is discussed below. Flat-Rate Premium Until the enactment of DRA 2005, the flat-rate premium had remained unchanged for single-employer plans since 1991 and for multiemployer plans since 1989. Section 8101(a) of DRA 2005 amends section 4006(a)(3)(A) of ERISA and adds new subparagraphs

(F)and

(G)to the end of section 4006(a)(3) of ERISA to raise the flat premium rates for 2006 for both single- and multiemployer plans and to provide for inflation indexing for future years. Applicability Before amendment by DRA 2005, section 4006(a)(3)(A) of ERISA provided (in part) that “* * * the annual premium rate * * * is * * * in the case of a single-employer plan, for plan years beginning after December 31, 1990, an amount equal to the sum of $19 plus the [per-participant variable-rate premium] under subparagraph

(E)for each * * * participant * * *.” Section 8101(a)(1)(A) of DRA 2005 changes “$19” to read “$30.” Thus, the amended text of ERISA, read literally, makes it appear that the $30 single-employer flat-rate premium applies to plan years beginning after 1990. However, section 8101(d)(1) of DRA 2005 (which does not amend ERISA) says that this change applies to plan years beginning after December 31, 2005. Accordingly, PBGC considers single-employer flat premium rates for plan years beginning before 2006 to be unaffected by DRA 2005. Participant Count Section 8101(a)(2)(A)(ii) of DRA 2005 adds a new clause

(iv)to section 4006(a)(3)(A) of ERISA providing that the flat premium rate for a multiemployer plan for a post-2005 plan year is “$8.00 for each individual who is a participant in such plan during the applicable plan year.” PBGC interprets this to mean that the participant count is to be taken as of the premium snapshot date described in the premium rates regulation and PBGC's premium instructions (generally the last day of the plan year preceding the premium payment year). This is consistent with PBGC's interpretation of the nearly identical language in existing section 4006(a)(3)(A)(i) of ERISA. Flat Premium Rates This rule amends § 4006.3 of the premium rates regulation to reflect the changes to the flat-rate premium made by section 8101(a) of DRA 2005. Existing paragraphs (a)(1) and (a)(2) of § 4006.3 (setting forth the $19 and $2.60 flat rates) are removed, and a cross-reference to new § 4006.3(c) is provided instead. Paragraph

(1)of new § 4006.3(c) provides pre-2006 rates ($19 and $2.60); paragraph

(2)provides 2006 rates ($30 and $8); and paragraph

(3)provides post-2006 rates (the greater of the preceding year's rate or the inflation-adjusted rate). Inflation Adjustments Section 8101(a)(1)(B) and (2)(B) of DRA 2005 add to section 4006(a)(3) of ERISA substantially identical new subparagraphs

(F)and

(G)providing for inflation adjustments to the $30 and $8 flat rates for plan years beginning after 2006. The adjustments are based on changes in the national average wage index as defined in section 209(k)(1) of the Social Security Act, with a two-year lag—for example, for 2007, it will be the 2005 index that will be compared to the baseline (the 2004 index). However, new subparagraphs

(F)and

(G)are written in such a way that the premium rate can never go down; if the change in the national average wage index is negative, the premium rate remains the same as in the preceding year. Also, under new subparagraphs

(F)and (G), premium rates are rounded to the nearest whole dollar. PBGC interprets this to mean that if the adjustment formula would produce an unrounded premium rate of some number of dollars plus 50 cents, the premium rate will be rounded up. The inflation adjustment is described in new § 4006.3(d). Variable-Rate Premium Section 405 of PPA 2006 amends section 4006(a)(3)(E)(i) of ERISA and adds new subparagraph

(H)to the end of section 4006(a)(3) to cap the variable-rate premium for certain plans, effective for plan years beginning after 2006. This rule revises § 4006.3(b) of the premium rates regulation to reflect the new cap. Plans Covered Clause

(i)of new section 4006(a)(3)(H) of ERISA says that the new variable-rate premium cap applies “[i]n the case of an employer who has 25 or fewer employees on the first day of the plan year.” But clause

(ii)of new section 4006(a)(3)(H) of ERISA makes clear that the applicability of the new cap does not necessarily depend on the size of a single employer, but rather depends on the size of a plan's controlled group, that is, the aggregate size of “all contributing sponsors and their controlled groups.” (See the definition of “controlled group” in § 4001.2 of PBGC's regulation on Terminology (29 CFR Part 4001), which provides that “[a]ny reference to a plan's controlled group means all contributing sponsors of the plan and all members of each contributing sponsor's controlled group”). Since a plan maintained by one contributing sponsor may or may not also be maintained by one or more other contributing sponsors that are not in the first sponsor's controlled group, the applicability of the cap must be determined plan by plan, not employer by employer. New § 4006.3(b)(3) describes the plans eligible for the cap. Meaning of “Employee” New section 4006(a)(3)(H) of ERISA does not give guidance as to the meaning of the term “employee.” New § 4006.3(b)(4) as added by this rule defines “employee” for this purpose by reference to section 410(b)(1) of the Internal Revenue Code, which deals with minimum coverage requirements for qualified plans and requires that employees be counted to evaluate the breadth of coverage of a plan. For this purpose, certain individuals may be counted as “employees” although they might not be considered common law employees of the employer—for example, affiliated service group employees (under Code section 414(m)) and leased employees (under Code section 414(n)). PBGC considers this approach appropriate to prevent an employer from qualifying for the cap by artificially lowering its employee count through the use of sophisticated business structuring devices. In addition, in order to ensure that all employees are counted, new § 4006.3(b)(4) provides that the employee count is to be determined without regard to Code section 410(b)(3), (4), and (5), which might be considered to exclude from the count collective bargaining employees, employees not meeting a plan's age and service requirements, and employees in separate lines of business. Cap Amount Under new section 4006(a)(3)(H)(i) of ERISA, the per-participant variable-rate premium is capped at “$5 multiplied by the number of participants in the plan as of the close of the preceding plan year.” PBGC interprets this to mean that the participant count is to be taken as of the premium snapshot date described in the premium rates regulation and PBGC's premium instructions (generally the last day of the plan year preceding the premium payment year). This is consistent with PBGC's interpretation of the nearly identical language in existing section 4006(a)(3)(E)(i) of ERISA. This participant count is the same as the count used as a multiplier under section 4006(a)(3)(A)(i) of ERISA for purposes of both the flat- and variable-rate premiums. Thus, an eligible plan's total variable-rate premium is capped at an amount equal to $5 multiplied by the square of the participant count. The cap is described in new § 4006.3 (b)(2), which includes an example of the computation of the cap taken from page 95 of the Technical Explanation of H.R. 4, the “Pension Protection Act of 2006,” as Passed by the House on July 28, 2006, and as Considered by the Senate on August 3, 2006, Prepared by the Staff of the Joint Committee on Taxation (August 3, 2006) ( *http://www.house.gov/jct/x-38-06.pdf* ). Termination Premium Section 8101(b) of DRA 2005 adds a new paragraph

(7)to the end of section 4006(a) of ERISA, creating a new “termination premium” that applies only where certain distress and involuntary terminations occur and then only for three years. However, although only section 4006 of ERISA is amended, subparagraph

(D)of new paragraph

(7)in effect modifies section 4007 of ERISA as well. Sections 401(b) and 402(g)(2)(B) of PPA 2006 make changes to the termination premium rules of DRA 2005. Termination Dates Covered Section 8101(d)(2)(A) of DRA 2005 (which does not amend ERISA) restricts the new termination premium to “plans terminated after December 31, 2005.” (Section 401(b)(1) of PPA 2006 repeals new section 4006(a)(7)(E) of ERISA, added by DRA 2005, which provided that the termination premium would not apply “with respect to any plan terminated after December 31, 2010.”) This time restriction is reflected in new § 4007.13(a)(1) introductory text. Section 8101(d)(2)(B) of DRA 2005 further restricts the application of the new termination premium in certain bankruptcy situations. If a plan “is terminated during the pendency of any bankruptcy reorganization proceeding under chapter 11 of title 11, United States Code (or under any similar law of a State or political subdivision of a State),” the new premium does not apply “if the proceeding is pursuant to a bankruptcy filing occurring before October 18, 2005.” Under section 402(g)(2)(B)(ii) of PPA 2006, this limitation does not apply to an “eligible plan” under section 402(c)(1) of PPA 2006 (generally a plan of a commercial passenger airline or airline catering service) while a funding election under section 402(a)(1) of PPA 2006 is in effect for the plan. These provisions are in new § 4007.13(a)(2) and (3). These time restrictions on the applicability of the new premium turn on when a plan is “terminated.” PBGC believes that the most natural reading of these provisions is that the date to look to is the termination date under section 4048 of ERISA. Focusing on the section 4048 termination date is also consistent with other provisions of DRA 2005 and implementing regulations discussed below. This interpretation is reflected throughout the termination premium provisions added by this rule. Types of Terminations Covered Under new section 4006(a)(7)(A) of ERISA, the termination premium applies where “there is a termination of a single-employer plan under clause

(ii)or

(iii)of section 4041(c)(2)(B) [of ERISA] or section 4042 [of ERISA].” Section 4041(c) of ERISA provides for distress terminations; ERISA section 4042 provides for involuntary terminations. Under ERISA section 4041(c)(1), a distress termination of a plan may occur only if each contributing sponsor and each member of any contributing sponsor's controlled group meets one of the “distress tests” in clauses (i), (ii), and

(iii)of section 4041(c)(2)(B). The tests are that the person is the subject of a bankruptcy liquidation proceeding (clause (i)), that the person is the subject of a bankruptcy reorganization proceeding (clause (ii)), or that the person is suffering business hardship (clause (iii)). Although typically all contributing sponsors and controlled group members meet the same distress test, that is not required for a distress termination under section 4041(c). Thus, while terminations where all contributing sponsors and controlled group members meet the test in clause

(i)seem to be excluded from applicability of the termination premium, it is not clear from the statutory language whether the termination premium is to apply to terminations where one or more contributing sponsors and/or controlled group members meet the clause

(i)test but others meet the tests in clauses

(ii)and/or (iii). Examples of such situations would be where there are two contributing sponsors, one liquidating and one reorganizing; where the sole contributing sponsor is liquidating but there are controlled group members that are reorganizing; and where the sole contributing sponsor is reorganizing but the controlled group members are liquidating. The statutory language provides no basis for distinguishing among these examples or others that might be cited. All contributing sponsors and controlled group members are liable for plan underfunding under ERISA section 4062 and (as discussed below) for the termination premium (if it applies), and they must all satisfy one or another distress test under ERISA section 4041(c)(2)(B) for a distress termination to take place. This suggests that all these entities should be considered responsible as a group for the consequences of plan termination and that the fact that one entity among several is liquidating should not shield the others from liability. PBGC thus interprets new section 4006(a)(7)(A) of ERISA as applying the termination premium in any distress termination case where at least one contributing sponsor or controlled group member meets the distress test in either clause

(ii)or

(iii)of section 4041(c)(2)(B) (i.e., is not liquidating). New § 4007.13(a)(1)(i) and

(ii)deals with the types of terminations covered by the termination premium. Payers Section 4007(a) of ERISA places responsibility for paying PBGC premiums on the “designated payor” of a plan, and section 4007(e)(1)(A) of ERISA identifies the designated payor of a single-employer plan as the contributing sponsor or plan administrator. However, new section 4006(a)(7)(D)(i)(II) of ERISA, as added by section 8101(b) of DRA 2005, provides that notwithstanding section 4007, the designated payor of the new termination premium is “the person who is the contributing sponsor as of immediately before the termination date.” It thus appears that the designated payor is to be identified as of the day before the termination date under section 4048 of ERISA. Similarly, this rule provides for identification of members of the contributing sponsor's controlled group (which are jointly and severally liable for premiums under section 4007(e)(2) of ERISA) as of the same day. These provisions are in new § 4007.13(g). Participants Under new section 4006(a)(7)(A) of ERISA, the termination premium is based on the number of “participants in the plan immediately before the termination date.” It thus appears that participants are to be counted—for purposes of computing the termination premium—as of the day before the termination date under section 4048 of ERISA (the same day on which the contributing sponsor and controlled group members are determined). Section 4006.6 of the premium rates regulation already includes a definition of “participant” (which is used in computing the flat-rate premium), and DRA 2005 suggests no reason to depart from that definition for purposes of the termination premium. New § 4006.7(b) deals with these points. Due Dates The termination premium is payable each year for three years. Under new section 4006(a)(7)(D)(i)(I) of ERISA, as added by section 8101(b) of DRA 2005, the new premium is due within 30 days after the beginning of each of three “applicable 12-month periods,” which are in turn described in new section 4006(a)(7)(C). New section 4006(a)(7)(C)(i)(I) provides that in general, the first applicable 12-month period starts with “the first month following the month in which the termination date occurs.” (From this it is evident that calendar months are meant.) Under new section 4006(a)(7)(C)(i)(II), the second and third applicable 12-month periods are simply the two 12-month periods that follow the first applicable 12-month period. The general rule regarding termination premium due dates is in new § 4007.13(d). But new section 4006(a)(7)(C)(ii) of ERISA defers the beginning of the first applicable 12-month period (and thus the due dates) in certain bankruptcy reorganization cases. This deferral rule comes into play where “the requirements of subparagraph

(B)[of new section 4006(a)(7) of ERISA] are met in connection with the termination of the plan . . ..” (Section 401(b)(2) of PPA 2006 corrected an erroneous reference to “subparagraph (B)(i)(I)” in new section 4006(a)(7)(C)(ii) of ERISA.) Subparagraph

(B)of new section 4006(a)(7)(B) of ERISA defers the applicability of the termination premium for distress or involuntary plan terminations that occur when bankruptcy reorganization proceedings are pending for terminations “under section 4041(c)(2)(B)(ii) [of ERISA] or under section 4042 [of ERISA].” Following the same reasoning discussed above regarding new section 4006(a)(7)(A) of ERISA (the general termination premium applicability provision), PBGC concludes that the bankruptcy reorganization deferral provision in new section 4006(a)(7)(B) of ERISA is meant to apply to a distress termination only when at least one contributing sponsor or controlled group member satisfies the bankruptcy reorganization test in section 4041(c)(2)(B)(ii) . In order for the due date deferral rule in new section 4006(a)(7)(C)(ii) of ERISA to apply, the requirements of subparagraph

(B)of section 4006(a)(7) of ERISA must be met “with respect to 1 or more persons described in such subparagraph” (that is, one or more persons must be reorganizing in bankruptcy as described in subparagraph (B)). If so, then the first applicable 12-month period begins with “the first month following the month which includes the earliest date as of which each such person is discharged or dismissed in the case described in such clause [sic] in connection with such person.” (The only clause mentioned in section 4006(a)(7)(C)(ii) of ERISA is clause (i)(I) of section 4006(a)(7)(C), which describes the first applicable 12-month period that applies if the special bankruptcy rule does not. Thus the reference to “such clause” appears to be intended to refer to “such subparagraph”—that is, subparagraph (B)—and PBGC so interprets the reference.) However, although subparagraph

(B)of new section 4006(a)(7) of ERISA describes a case—a bankruptcy case—it does not describe a person. The only person mentioned in subparagraph

(B)is “such person,” with no cross-reference to another place where the person is described. Nonetheless, it seems clear that the person referred to must be a person that has a relationship to both the plan and the bankruptcy proceeding mentioned in subparagraph (B). Subparagraph

(B)contains parenthetical language that is essentially identical to parenthetical language that appears in section 4041(c)(2)(B)(ii) of ERISA (which describes the bankruptcy reorganization test for distress terminations). In section 4041(c)(2)(B)(ii), the words “such person” in the parenthetical language refer to a contributing sponsor or member of a contributing sponsor's controlled group. PBGC infers that “such person” in new section 4006(a)(7)(B) of ERISA is meant to refer likewise to a contributing sponsor of the terminated plan or member of a contributing sponsor's controlled group—determined (consistent with the designated payor provision in new section 4007(a)(7)(D)(i)(II)) as of the day before the termination date under section 4048 of ERISA. This inference is supported by the observation that these same persons—contributing sponsors and controlled group members—are the persons liable for the termination premium. It appears that Congress's intent was to defer the due date for the termination premium until the persons liable to pay it were not in bankruptcy proceedings. Accordingly, where the special bankruptcy rule for due dates applies, it is necessary to identify every contributing sponsor and controlled group member that was involved in bankruptcy reorganization proceedings on the termination date and determine the date when each one left bankruptcy—through dismissal of or discharge in the proceeding—or ceased to exist. (If an entity ceases to exist, its failure to emerge from bankruptcy should not postpone the termination premium due date.) Under new section 4006(a)(7)(C)(ii), the first applicable 12-month period for the termination will then begin with the calendar month that next begins following the last such date. This bankruptcy due date deferral provision is in new § 4007.13(e). One due date issue not addressed by the statute is that the agreement or court action establishing a plan's termination date under ERISA section 4048 may occur well after the termination date so established. Where a termination date is thus set as a date in the past, one or more statutory due dates for the termination premium may already have passed when the termination date becomes known. Thus, termination premium payments could be overdue before it was determined that they were owed. In cases of that kind, PBGC considers it appropriate to provide that where the termination date set is in the past, the first applicable 12-month period does not begin immediately after the month in which the termination date falls, but rather begins immediately after the month in which the termination date is established. Where the special bankruptcy rule for due dates applies, this rule would come into play if the termination date was established after all contributing sponsors and controlled group members were out of bankruptcy reorganization proceedings, and would defer the beginning of the first applicable 12-month period until immediately after the month in which the termination date was established. This provision is in new § 4007.13(f). Other Bankruptcy Issues The parenthetical language in new section 4006(a)(7)(B) of ERISA—“(or a case described in section 4041(c)(2)(B)(i) filed by or against such person has been converted, as of such date, to such a case in which reorganization is sought)”—shows that Congress focused on the fact that bankruptcy proceedings can be converted back and forth between liquidation and reorganization proceedings. But neither section 4006(a)(7)(B) nor section 4006(a)(7)(C)(ii) (which describes the special first applicable 12-month period) mentions conversion of a reorganization case to a liquidation case as being sufficient to trigger the beginning of the first applicable 12-month period. It thus appears that if a plan terminates during pendency of a bankruptcy reorganization proceeding, the subsequent conversion of the proceeding to a liquidation proceeding would not keep the first applicable 12-month period from being postponed until the (liquidation) bankruptcy proceeding was dismissed or the contributing sponsor or controlled group member discharged. This could be of significance where there were other persons liable for the termination premium that were not (or were no longer) in bankruptcy. Section 8101(d)(2)(B) of DRA 2005 (which, as discussed above, excludes from the termination premium terminations that occur during the pendency of bankruptcy reorganization proceedings pursuant to a filing before October 18, 2005) says nothing about the persons involved in such proceedings. Following the reasoning above, PBGC concludes that section 8101(d)(2)(B) is intended to apply only where the subject of a pending bankruptcy proceeding is a contributing sponsor of the terminated plan or a member of a contributing sponsor's controlled group (and that these persons are to be identified as of the day before the termination date under section 4048 of ERISA). Section 8101(d)(2)(B) also does not mention conversion of a bankruptcy case from a liquidation proceeding to a reorganization, as new section 4006(a)(7)(B) of ERISA does. But the language of section 8101(d)(2)(B) is consistent with the interpretation that—like section 4006(a)(7)(B)—it covers bankruptcy proceedings begun as liquidation proceedings and converted to reorganization proceedings before the termination date under section 4048 of ERISA. Termination Premium Rate Under new section 4006(a)(7) of ERISA as added by section 8101(b) of DRA 2005, the termination premium is $1,250 per participant per year for three years. But under section 402(g)(2)(B) of PPA 2006 (which does not amend ERISA), the rate is increased from $1,250 to $2,500 where a commercial passenger airline or airline catering service elects funding relief (an extended underfunding amortization period and lenient assumptions for valuing liabilities) for a frozen plan under section 402(a)(1) of PPA 2006, if the plan terminates during the first five years of the funding relief period, unless the Secretary of Labor determines that the termination resulted from extraordinary circumstances such as a terrorist attack or other similar event. This rule adds a new § 4006.7 to the premium rates regulation providing that the amount of the termination premium with respect to each applicable 12-month period is the premium rate (generally $1,250) times the number of participants, determined as of the day before the termination date, with a cross-reference from § 4006.3 (where the flat and variable premium rates are set forth). New § 4006.7(b) also explains the circumstances in which the termination premium rate is $2,500 rather than $1,250. Filing Requirements New § 4007.13(b) makes each contributing sponsor and controlled group member (determined as of the day before the termination date under section 4048 of ERISA) responsible for filing required termination premium information and payments, and (where there is more than one such person) provides that any one can file on behalf of all of them. This provision ensures that, so long as there is at least one person still in existence that is liable for the termination premium, there will be at least one identifiable entity with responsibility to file. This provision is similar to § 4010.3 of PBGC's regulation on Annual Financial and Actuarial Information Reporting (Part 4010 of PBGC's regulations) and § 4043.3(a) of PBGC's regulation on Reportable Events and Certain Other Notification Requirements (Part 4043 of PBGC's regulations). Thus, only a single filing of the premium and required premium information is required, but if it is not timely made, PBGC could seek enforcement against any or all contributing sponsors and controlled group members. Late Payment Penalty Section 4007.13(c) provides for a discretionary “facts-and-circumstances” penalty for failure to pay the termination premium timely, instead of the automatic 1 percent or 5 percent penalty that applies to late payment of flat- and variable-rate premiums under § 4007.8(a). PBGC wants to preserve flexibility in penalizing failures to pay the new premium in full and on time while it gains experience with the new premium. The penalty is limited to 100 percent of the amount of termination premium not timely filed. Other Regulatory Provisions In addition to the provisions discussed above, new § 4007.13 supplements provisions in existing sections of Part 4007 that also apply to the termination premium. This rule also amends several sections in the existing premium payment regulation to eliminate inconsistencies or potential inconsistencies between existing language in those sections and the termination premium provisions. Public Comment PBGC received one public comment on the proposed rule. The comment addressed the termination premium. The commenter expressed concern that “Congress may not have considered the financial ramifications of” the termination premium. The commenter requested that PBGC “adopt a facts-and-circumstance approach in collecting the termination premium fee” and “consider limiting its recoveries of this termination premium to amounts that each company can afford to pay without jeopardizing its ability to stay in business.” PBGC has accepted less than full payment on its claims for unfunded benefit liabilities, unpaid funding contributions, and unpaid flat- and variable-rate premiums in circumstances in which, like other creditors, it is forced to compromise those claims. But the language of section 8101(b) of DRA 2005 makes clear that a Congressional purpose in imposing the termination premium was to discourage the termination of underfunded pension plans. Congress has made clear that, when a plan terminates under the circumstances described in new section 4006(a)(7)(B) of ERISA during the pendency of a bankruptcy reorganization, the liability for the termination premium arises after emergence from bankruptcy, indicating a specific intent to avoid a limited recovery of the termination premium in bankruptcy and to ensure a full recovery post-bankruptcy. In light of this Congressional intent, it would be inappropriate for PBGC to adopt a policy of routinely settling termination premium claims for less than the full amount. PBGC recognizes that plan sponsors may face difficult financial choices because of the termination premium. Accordingly, PBGC encourages sponsors that may be facing termination premium liability to contact PBGC as early as possible to discuss. Technical Changes PBGC is taking this opportunity to make some technical changes (unrelated to DRA 2005 or PPA 2006) to its regulations on Premium Rates and Payment of Premiums. Section 4006.3 of the premium rates regulation refers to basic benefits guaranteed under section 4022(a) of ERISA (which relates only to single-employer plans) and omits mention of section 4022A(a) of ERISA (which relates to multiemployer plans). This rule adds a reference to section 4022A(a). Section 4007.11(d) of the premium payment regulation states that where proration of the flat- and variable-rate premiums is available under § 4006.5(f) of the premium rates regulation, the un-prorated premium must be paid in full (even if the plan would be entitled to a refund). This provision is anachronistic: PBGC now permits payment of the prorated amount under § 4006.5(f), rather than requiring that a filer pay the un-prorated amount and request a refund. This rule removes the outdated provision. Section 4007.11(e) of the premium payment regulation permits PBGC to return improper filings and consider them not made. PBGC is not exercising this authority, and the provision is unnecessary; PBGC has authority to assess penalties under ERISA section 4071 for failure to submit material information under the premium payment regulation. This rule removes § 4007.11(e). Applicability The regulatory changes made by this rule to implement the provisions of section 8101 of DRA 2005 apply (as section 8101 of DRA 2005 does) to plan years beginning after 2005 and to terminations with termination dates after 2005 (subject to the special rule for bankruptcies filed before October 18, 2005). The regulatory changes made by this rule to implement the provisions of section 405 of PPA 2006 apply (as section 405 of PPA 2006 does) to plan years beginning after 2006. Compliance With Rulemaking Guidelines E.O. 12866 PBGC has determined, in consultation with the Office of Management and Budget, that this final rule is a “significant regulatory action” under Executive Order 12866. The Office of Management and Budget has therefore reviewed the rule under Executive Order 12866. Pursuant to section 1(b)(1) of E.O. 12866 (as amended by E.O. 13422), PBGC identifies the following specific problems that warrant this agency action: • PBGC's regulations do not reflect the statutory changes made by DRA 2005 and PPA 2006 regarding the flat premium rate, the cap on the variable-rate premium, and the termination premium. This problem is significant because, unless the regulations are revised, the public may be confused or misled by the anachronistic regulatory provisions. • PPA 2006 does not define the term “employee” for purposes of the variable-rate premium cap for plans of small employers. This problem is significant because the absence of a definition will likely lead to inconsistent application of the cap rules among filers. • The termination premium language in DRA 2005 is complex and in some respects unclear. This problem is significant because the complexity and lack of clarity may lead to inconsistent interpretation of the termination premium rules among potential termination premium filers. • DRA 2005 does not deal with the situation where the termination date is set after the premium due date as described in the statute. This problem is significant because, without a relief rule, potential filers in such situations would be unable to comply with the filing requirements. • DRA 2005 does not specify the entities responsible for keeping termination premium records or making termination premium filings, and the existing provisions of PBGC's regulations are inapposite. This problem is significant because the absence of a clear assignment of responsibility could impede enforcement. • Under PBGC's existing regulations, late payment penalties are determined according to a formula. This is a significant problem in the termination premium area because the termination premium requirement is new, neither PBGC nor potential filers are familiar with it, and assessment of late payment penalties according to a mechanical formula could be inappropriate. Regulatory Flexibility Act PBGC certifies under section 605(b) of the Regulatory Flexibility Act that the amendments in this rule will not have a significant economic impact on a substantial number of small entities. This rule implements statutory changes made by Congress. It provides guidance on how to calculate, pay, and substantiate the premiums prescribed by statute and imposes no significant burden beyond the burden imposed by statute. Furthermore: • The statutorily imposed increase in the flat-rate premium is at most $11 per participant per year, which does not constitute a significant economic impact where a plan has a small number of participants. Although the flat-rate premium will increase as the number of participants increases, the economic impact of the flat-rate premium relative to the size of the entity will remain fairly constant and will not be significant for a substantial number of entities of any size. • The statutorily imposed cap on the variable-rate premium will save qualifying plans money. The rule simply interprets the statutory provisions. • The statutorily imposed termination premium will not affect a substantial number of entities of any size. Accordingly, as provided in section 605 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), sections 603 and 604 do not apply. Paperwork Reduction Act The information collection requirements relating to the flat-rate and variable-rate premiums have been approved by the Office of Management and Budget under the Paperwork Reduction Act (OMB control number 1212-0009, expires April 30, 2008). The information collection requirements relating to the termination premium have been approved by the Office of Management and Budget under the Paperwork Reduction Act (OMB control number 1212-0064, expires October 31, 2010). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. PBGC needs information relating to the termination premium to identify the plan for which a termination premium is paid to PBGC, to verify the determination of the premium, and to identify the persons liable for the premium. PBGC has maximized the practical utility of the information collection and minimized the burden by designing the collection to provide the information PBGC needs to administer and enforce the termination premium requirements without requiring the submission of information that is extraneous to that function. Specifically, the Form T that PBGC has designed for submission of termination premium payments requests: • The name, Employer Identification Number, and Plan Number for the terminated plan last reported in a PBGC flat- and/or variable-rate premium filing (to identify the plan). • The date of plan termination (to identify the date as of which participants are counted and contributing sponsors and controlled group members liable for the premium are identified). • The participant count (on which the termination premium is based). • The termination premium rate (generally $1,250, but $2,500 for certain airline or airline-related plans). • The amount of the termination premium owed. • Whether this is the first, second, or third payment (some data should match from payment to payment, whereas other data may not). • The payment method (indicating whether PBGC should be looking for a check with the Form T or expecting an electronic funds transfer). • The name and address of the filer (to identify the filer). • A list of all persons (other than the filer) that are liable for the termination premium (for enforcement purposes). Because the number of plan terminations to which the termination premium applies is expected to be relatively small (about 25 per year), the total burden of compliance will be minimal. List of Subjects 29 CFR Part 4006 Pension insurance, Pensions. 29 CFR Part 4007 Penalties, Pension insurance, Pensions, Reporting and recordkeeping requirements. For the reasons given above, PBGC is amending 29 CFR parts 4006 and 4007 as follows. PART 4006—PREMIUM RATES 1. The authority citation for part 4006 continues to read as follows: Authority: 29 U.S.C. 1302(b)(3), 1306, 1307. 2. In § 4006.3: a. The introductory text is amended by removing the words “§ 4006.5 (dealing with exemptions and special rules)” and adding in their place the words “§ 4006.5 (dealing with exemptions and special rules) and § 4006.7 (dealing with premiums for certain terminated single-employer plans)”; and by removing the words “section 4022(a)” and adding in their place the words “section 4022(a) or section 4022A(a)”. b. Paragraph

(a)introductory text is amended by removing the words “multiplied by—” and adding in their place the words “multiplied by the applicable flat premium rate determined under paragraph

(c)of this section.”. c. Paragraphs (a)(1) and (a)(2) are removed. d. Paragraph

(b)is revised, and new paragraphs

(c)and

(d)are added, to read as follows: § 4006.3 Premium rate.

(b)*Variable-rate premium.*

(1)*In general.* Subject to the limitation in paragraph (b)(2) of this section, the variable-rate premium is $9 for each $1,000 of a single-employer plan's unfunded vested benefits, as determined under § 4006.4.

(2)*Cap on variable-rate premium.* If a plan is described in paragraph (b)(3) of this section for the premium payment year, the variable-rate premium does not exceed $5 multiplied by the square of the number of participants in the plan on the last day of the plan year preceding the premium payment year. For example, if the number of participants in the plan on the last day of the plan year preceding the premium payment year is 20, the variable-rate premium does not exceed $2,000 ($5 × 20 2 = $5 × 400 = $2,000).

(3)*Plans eligible for cap.* A plan is described in this paragraph (b)(3) for the premium payment year if the aggregate number of employees of all employers in the plan's controlled group on the first day of the premium payment year is 25 or fewer.

(4)*Meaning of “employee.”* For purposes of paragraph (b)(3) of this section, the aggregate number of employees is determined in the same manner as under section 410(b)(1) of the Code, taking into account the provisions of section 414(m) and

(n)of the Code, but without regard to section 410(b)(3), (4), and

(5)of the Code.

(c)*Applicable flat premium rate.* The applicable flat premium rate is:

(1)For a premium payment year beginning before 2006—

(i)For a single-employer plan, $19, and

(ii)For a multi-employer plan, $2.60.

(2)For a premium payment year beginning in 2006—

(i)For a single-employer plan, $30, and

(ii)For a multi-employer plan, $8.

(3)For a premium payment year beginning after 2006, the greater of—

(i)The applicable flat premium rate for plan years beginning in the calendar year preceding the calendar year in which the premium payment year begins, or

(ii)The adjusted flat rate determined under paragraph

(d)of this section for the premium payment year.

(d)*Adjusted flat rate.* The adjusted flat rate for a premium payment year beginning after 2006 is determined by—

(1)Multiplying the applicable flat premium rate for 2006 by the ratio of—

(i)The national average wage index (as defined in section 209(k)(1) of the Social Security Act) for the first of the two calendar years preceding the calendar year in which the premium payment year begins, to

(ii)The national average wage index (as so defined) for 2004; and

(2)Rounding the result to the nearest multiple of $1 (rounding up any unrounded result that equals some whole number of dollars plus 50 cents). 3. New § 4006.7 is added to read as follows: § 4006.7 Premium rate for certain terminated single-employer plans.

(a)The premium under this section (“termination premium”) applies to a DRA 2005 termination described in § 4007.13 of this chapter.

(b)The amount of the premium under this section that is payable with respect to each applicable 12-month period (as described in § 4007.13 of this chapter) is the number of participants in the plan, determined as of the day before the termination date under section 4048 of ERISA, multiplied by the termination premium rate. In general, the termination premium rate is $1,250. However, the termination premium rate is $2,500 for an “eligible plan” under section 402(c)(1) of the Pension Protection Act of 2006 (dealing with certain plans of commercial passenger airlines and airline catering services) while an election under section 402(a)(1) of the Pension Protection Act of 2006 (dealing with alternative funding schedules) is in effect for the plan if the plan terminates during the five-year period beginning on the first day of the first applicable plan year (as defined in section 402(c)(2) of that Act) with respect to the plan, unless the Secretary of Labor determines that the plan terminated as a result of extraordinary circumstances such as a terrorist attack or other similar event.

(c)The premium under this section is in addition to any other premium under this part.

(d)See § 4007.13 of this chapter for further rules about termination premiums. PART 4007—PAYMENT OF PREMIUMS 4. The authority citation for part 4007 continues to read as follows: Authority: 29 U.S.C. 1302(b)(3), 1303(a), 1306, 1307. 5. Section 4007.3 is amended by removing the words “The plan administrator” and adding in their place the words “Subject to the provisions of § 4007.13, the plan administrator”; and by removing “§ 4007.11” and adding in its place the words “this part”. 6. In § 4007.7, paragraph

(a)is amended by removing “§ 4007.11” and adding in its place the words “this part”. 7. In § 4007.8: a. Paragraph

(a)introductory text is amended by removing the words “If any premium payment due” and adding in their place the words “Subject to the provisions of § 4007.13, if any premium payment due”; and by removing “§ 4007.11” and adding in its place the words “this part”. b. Paragraph (a)(1)(i) is amended by removing the word “plan's”. c. Paragraph (a)(1) introductory text is revised to read as follows: § 4007.8 Late payment penalty charges.

(a)* * *

(1)*Penalty rate; in general.* Except as provided in paragraph (a)(2) of this section, the penalty rate is— 8. In § 4007.9, paragraph

(a)is amended by removing the words “by a plan administrator”; and by removing the words “that plan's” and adding in their place the words “a plan's”. 9. In § 4007.10: a. Paragraph (a)(1) is amended by removing the words “plan administrator” and adding in their place the words “designated recordkeeper under paragraph (a)(3) of this section”. b. Paragraph (a)(2) is amended by removing the words “The plan administrator” and adding in their place the words “A designated recordkeeper”. c. Paragraph

(b)is amended by removing the words “for any premium payment year”. d. Paragraph (c)(1) is amended by removing the words “The plan administrator” and adding in their place the words “A designated recordkeeper”. e. Paragraph (c)(2) is amended by removing the words “the plan administrator” and adding in their place the words “a designated recordkeeper”. f. Paragraph (c)(2)(ii) is amended by removing the words “plan administrator” and adding in their place the words “designated recordkeeper”. g. New paragraph (a)(3) is added to read as follows: § 4007.10 Recordkeeping; audits; disclosure of information.

(a)* * *

(3)*Designated recordkeepers.*

(i)With respect to the flat-rate and variable-rate premiums described in § 4006.3 of this chapter, the plan administrator is the designated recordkeeper.

(ii)With respect to the premium for certain terminated single-employer plans described in § 4006.7 of this chapter, each person who was a contributing sponsor of such a plan, or was a member of a contributing sponsor's controlled group, as of the day before the plan's termination date is a designated recordkeeper. 10. In § 4007.11: a. Paragraph

(a)introductory text is amended by removing the words “The premium filing due date for small plans” and adding in their place the words “For flat-rate and variable-rate premiums, the premium filing due date for small plans”. b. Paragraph (a)(3) introductory text is amended by removing the words “the premium form or forms and payment or payments for the short plan year shall be filed by” and adding in their place the words “the due date or dates for the flat-rate premium and any variable-rate premium for the short plan year are”; and by removing the words “for the premium forms and payments”. c. Paragraph

(c)introductory text is amended by removing the words “the premium form and all premium payments due for the first plan year of coverage of any new plan or newly covered plan shall be filed on or before” and adding in their place the words “the due date for the flat-rate premium and any variable-rate premium for the first plan year of coverage of any new plan or newly covered plan shall be”. d. Paragraph

(d)is amended by removing the words “to file the forms or forms prescribed by this part and to pay any premiums due” and adding in their place the words “to make flat-rate and (as applicable) variable-rate premium filings and payments under this part”; and by removing the last sentence of the paragraph. e. Paragraph

(e)is removed. 11. In § 4007.12, paragraph

(a)is amended by removing the words “to file the applicable forms and to submit the premium payment” and adding in their place the words “to make flat-rate and variable-rate premium filings and payments under this part”; and by removing the words “liable for premium payments” and adding in their place “liable for flat-rate and variable-rate premium payments”. 12. New § 4007.13 is added to read as follows: § 4007.13 Premiums for certain terminated single-employer plans.

(a)*Applicability* —(1) *In general.* This section applies where there is a “DRA 2005 termination” of a plan. Subject to paragraph (a)(2) of this section, there is a DRA 2005 termination where a single-employer plan's termination date under section 4048 of ERISA is after 2005 and either—

(i)The plan terminates under section 4042 of ERISA, or

(ii)The plan terminates under section 4041(c) of ERISA and at least one contributing sponsor or member of a contributing sponsor's controlled group meets the requirements of section 4041(c)(2)(B)(ii) or

(iii)of ERISA.

(2)*Plans terminated during reorganization proceedings.* Except as provided in paragraph (a)(3) of this section, a DRA 2005 termination of a plan does not occur where as of the plan's termination date under section 4048 of ERISA—

(i)A bankruptcy proceeding has been filed by or against any person that was a contributing sponsor of the plan on the day before the plan's termination date or that was on that day a member of any controlled group of which any such contributing sponsor was a member,

(ii)The proceeding is pending as a reorganization proceeding under chapter 11 of title 11, United States Code (or under any similar law of a State or political subdivision of a State),

(iii)The person has not been discharged from the proceeding, and

(iv)The proceeding was filed before October 18, 2005.

(3)*Special rule for certain airline-related plans.* Paragraph (a)(2) of this section does not apply to an “eligible plan” under section 402(c)(1) of the Pension Protection Act of 2006 (dealing with certain plans of commercial passenger airlines and airline catering services) while an election under section 402(a)(1) of the Pension Protection Act of 2006 (dealing with alternative funding schedules) is in effect for the plan.

(4)*Termination premium.* A premium as described in § 4006.7 of this chapter is payable to PBGC with respect to a DRA 2005 termination each year for three years after the termination (the “termination premium”).

(b)*Filing requirements; method of filing.* Notwithstanding § 4007.3, in the case of a DRA 2005 termination of a plan, each person that was a contributing sponsor of the plan on the day before the plan's termination date or that was on that day a member of any controlled group of which any such contributing sponsor was a member is responsible for filing prescribed termination premium information and payments. Any such person may file on behalf of all such persons.

(c)*Late payment penalty charges.* Notwithstanding § 4007.8(a), if any required termination premium payment is not filed by the due date under paragraph

(d)of this section, PBGC may assess a late payment penalty charge based on the facts and circumstances, subject to waiver under § 4007.8(b), (c), (d), or (e). The charge will not exceed the amount of termination premium not timely filed.

(d)*Due dates.* Notwithstanding § 4007.11, the due date for the termination premium is the 30th day of each of three applicable 12-month periods. The three applicable 12-month periods with respect to a DRA 2005 termination of a plan are—

(1)*First applicable 12-month period.* Except as provided in paragraph

(e)or

(f)of this section, the period of 12 calendar months beginning with the first calendar month following the calendar month in which occurs the plan's termination date under section 4048 of ERISA, and

(2)*Subsequent applicable 12-month periods.* Each of the first two periods of 12 calendar months that immediately follow the first applicable 12-month period.

(e)*Certain reorganization cases.*

(1)This paragraph

(e)applies with respect to a DRA 2005 termination of a plan if the conditions in both paragraph (e)(2) and paragraph (e)(3) of this section are satisfied.

(2)The condition of this paragraph (e)(2) is that either—

(i)The plan terminates under section 4042 of ERISA, or

(3)The condition of this paragraph (e)(3) is that as of the plan's termination date under section 4048 of ERISA—

(ii)The proceeding is pending as a reorganization proceeding under chapter 11 of title 11, United States Code (or under any similar law of a State or political subdivision of a State), and

(iii)The person has not been discharged from the proceeding.

(4)If this paragraph

(e)applies with respect to a DRA 2005 termination of a plan, then except as provided in paragraph

(f)of this section, the first applicable 12-month period with respect to the plan is the period of 12 calendar months beginning with the first calendar month following the calendar month in which occurs the earliest date when, for every person that was a contributing sponsor of the plan on the day before the plan's termination date under section 4048 of ERISA, or that was on that day a member of any controlled group of which any such contributing sponsor was a member, either—

(i)There is not pending any bankruptcy proceeding that was filed by or against such person and that was, as of the plan's termination date under section 4048 of ERISA, a reorganization proceeding under chapter 11 of title 11, United States Code (or under any similar law of a State or political subdivision of a State), or

(ii)The person has been discharged in any such proceeding, or

(iii)The person no longer exists.

(f)*Plan termination date in past when set.* If a plan's termination date under section 4048 of ERISA is in the past when it is established by agreement or court action as described in section 4048 of ERISA, then the first applicable 12-month period for determining the due dates of the termination premium begins with the later of—

(1)The first calendar month following the calendar month in which the termination date is established by agreement or court action as described in section 4048 of ERISA, or

(2)The first calendar month specified in paragraph (d)(1) of this section or (if paragraph

(e)of this section applies) paragraph (e)(4) of this section.

(g)*Liability for termination premiums.* In the case of a DRA 2005 termination of a plan, each person that was a contributing sponsor of the plan on the day before the plan's termination date, or that was on that day a member of any controlled group of which any such contributing sponsor was a member, is jointly and severally liable for termination premiums with respect to the plan. Issued in Washington, DC, this 2nd day of November, 2007. Elaine L. Chao, Chairman, Board of Directors, Pension Benefit Guaranty Corporation. Issued on the date set forth above pursuant to a resolution of the Board of Directors authorizing its Chairman to issue this final rule. Judith R. Starr, Secretary, Board of Directors, Pension Benefit Guaranty Corporation. [FR Doc. E7-24423 Filed 12-14-07; 8:45 am] BILLING CODE 7709-01-P DEPARTMENT OF THE INTERIOR Minerals Management Service 30 CFR Part 206 RIN 1010-AD00 Indian Oil Valuation AGENCY: Minerals Management Service, Interior. ACTION: Final rule. SUMMARY: The Minerals Management Service

(MMS)is amending the existing regulations regarding valuation, for royalty purposes, of oil produced from Indian leases. These amendments will clarify and update the existing regulations. DATES: Effective February 1, 2008. FOR FURTHER INFORMATION CONTACT: Sharron L. Gebhardt, Lead Regulatory Specialist, Minerals Management Service, Minerals Revenue Management, P.O. Box 25165, MS 302B2, Denver, Colorado 80225, telephone

(303)231-3211, fax

(303)231-3781, or e-mail *Sharron.Gebhardt@mms.gov* . The principal authors of this final rule are John Barder of Minerals Revenue Management, MMS, Department of the Interior, and Geoffrey Heath of the Office of the Solicitor, Department of the Interior, Washington, DC. SUPPLEMENTARY INFORMATION: I. Background The MMS published a proposed rule in the **Federal Register** on February 13, 2006 (71 FR 7453), referred to in this rule as the 2006 Indian Oil Proposed Rule or, simply, the proposed rule, that would amend the regulations governing the valuation for royalty purposes of crude oil produced from Indian leases. Before developing the proposed rule, MMS held a series of eight public meetings in March and June 2005 to consult with Indian tribes and individual Indian mineral owners and to obtain information from interested parties. The intent of the proposed rulemaking was to add more certainty to the valuation of oil produced from Indian lands, eliminate reliance on oil posted prices, and address the unique terms of Indian tribal and allotted leases—in particular, the major portion provision. Because of the response from Indian tribes and industry to the proposed rule, MMS plans to convene a negotiated rulemaking committee that will make recommendations regarding the major portion provision in Indian tribal and allotted leases. For clarification, relevant rulemaking activity is listed below. Publication date Federal Register reference Publication title Referred to in this final rule as July 7, 2006 71 FR 38545 Reporting Amendments Proposed Rule 2006 Reporting Amendments Proposed Rule. February 13, 2006 71 FR 7453 Indian Oil Valuation Proposed Rule 2006 Indian Oil Proposed Rule. March 10, 2005 70 FR 11869 Federal Gas Valuation Final Rule Public Workshop on Proposed Rule—Establishing Oil Value for Royalty Due on Indian Leases 2005 Federal Gas Final Rule. February 22, 2005 70 FR 8556 (Proposed Rule of February 12, 1998 (63 FR 7089) and Supplementary Proposed Rule of January 5, 2000 (65 FR 403 are withdrawn) 2005 Establishing Oil Value for Royalty Due on Indian Leases—Workshop. May 24, 2004 Effective August 1, 2004 69 FR 29432 Federal Oil Valuation Final Rule Technical Amendment 2004 Federal Oil Final Rule Technical Amendment. May 5, 2004 Effective August 1, 2004 69 FR 24959 Federal Oil Valuation Final Rule 2004 Federal Oil Final Rule. September 28, 2000 65 FR 58237 Establishing Oil Value for Royalty Due on Indian Leases: Proposed Rule 2000 Indian Oil Proposed Rule. March 15, 2000 Effective June 1, 2000—Amended 2004 65 FR 14022 Establishing Oil Value for Royalty Due on Federal Leases: Final Rule 2000 Federal Oil Final Rule. February 28, 2000 65 FR 10436 Establishing Oil Value for Royalty Due on Indian Leases Supplementary Proposed Rule and Notice of Extension of Comment Period 2000 Indian Oil Revised Supplementary Proposed Rule. January 5, 2000 65 FR 403 Establishing Oil Value for Royalty Due on Indian Leases Supplementary Proposed Rule 2000 Indian Oil Supplementary Proposed Rule. August 10, 1999: Effective January 1, 2000 64 FR 43506 Amendments to Gas Valuation Regulations for Indian Leases Final Rule 1999 Indian Gas Final Rule. April 9, 1998 63 FR 17349 Establishing Oil Value for Royalty Due on Indian Leases: Proposed Rule Extension of Public Comment Period 1998 Indian Oil Proposed Rule Comment Period Extension. February 12, 1998 63 FR 7089 Establishing Oil Value for Royalty Due on Indian Leases Proposed Rule 1998 Indian Oil Proposed Rule. January 15, 1988 53 FR 1184 Part 3—Revision of Oil Product Valuation Regulations and Related Topics Final Rule 1988 Oil Valuation Final Rule. II. Comments on the Proposed Rule The MMS received comments from the following entities: Two Indian tribes, three industry trade associations, eight oil and gas producers, and one individual. The comments were generally not supportive of the changes outlined in the 2006 Indian Oil Proposed Rule. The most controversial topics were the proposed modification of Form MMS-2014, Report of Sales and Royalty Remittance, as part of the proposed major portion calculations, and the proposed transportation allowance changes. A. Definitions The following chart summarizes the changes to definitions adopted in this final rule. The comments addressing the specific issues are summarized in the discussion that follows the chart. Changes to Definitions at 30 CFR 206.51 Definition Change proposed in 2006 Indian Oil Proposed Rule This final rule Affiliate Add new definition Adds new definition as proposed. Area Revise definition Not adopted as proposed. Arm's-length contract Revise definition Adopts as proposed. Designated area Add new definition Not adopted as proposed. Exchange agreement Add new definition Adds new definition as proposed. Gross proceeds Revise definition Revises as proposed. Indian tribe Revise definition Revises as proposed. Individual Indian mineral owner Add new definition Adds new definition as proposed. Lessee Revise definition Revises proposed definition. Lessor Add new definition Adds new definition as proposed. Like-quality lease products Eliminate Eliminates as proposed. Like-quality oil Replace and modify existing definition of Like-Quality Lease Products Adds new definition as proposed. Load oil Eliminate Eliminates as proposed. Location differential Add new definition Adds new definition as proposed. Marketable condition Revise definition Revises proposed definition in light of comments. Marketing affiliate Eliminate Eliminates as proposed. Minimum royalty Eliminate Eliminates as proposed. Net profit share Eliminate Eliminates as proposed. Net-back method Eliminate Eliminates as proposed. Oil Revise definition Revises as proposed. Oil shale Eliminate Eliminates as proposed. Oil type Add new definition Not adopted as proposed. Operating rights owner Add new definition Adds new definition as proposed. Posted price Eliminate Eliminates as proposed. Quality differential Add new definition Adds new definition as proposed. Selling arrangement Eliminate Not eliminated as proposed. Tar sands Eliminate Eliminates as proposed. In the 2006 Indian Oil Proposed Rule, MMS proposed to add a definition of the term *affiliate* and revise the definition of *arm's-length contract* in § 206.51 to conform to the 2004 Federal Oil Final Rule and to align the rule with the court's decision in *National Mining Association* v. *Department of the Interior,* 177 F.3d 1 (DC Cir. 1999). *Comment:* The MMS received one comment regarding the proposed change to the definition of *affiliate.* The industry association commenter stated that “[o]pposing economic interest is not a defined term, and MMS does not state any factors that will be considered in determining whether parties to a contract have opposing economic interest. MMS should define the term ‘opposing economic interests' and incorporate determining factors from the Vastar decision in the definition.” *MMS Response:* The MMS examines whether two parties have opposing economic interests on a case-by-case basis under existing precedents. We have included the undefined phrase “opposing economic interest” in our definition of “arm's-length contract” since the oil royalty valuation rules were first issued in 1988. The definition of “arm's-length contract” as originally proposed in 1987 did not include the requirement for “opposing economic interests.” Our 1987 proposal defined “arm's-length contract” simply to include “a contract or agreement between independent, nonaffiliated persons.” 52 FR 1858 (January 15, 1987). However, at the urging of a state commenter, MMS included the “opposing economic interest” concept in the final rule in 1988. The state commenter stressed that even though the inclusion of additional criteria such as “adverse economic interest” would increase subjectivity, “the appeals process is in place to provide protection against arbitrary decisions.” The 1988 rule established the basic principles of MMS royalty valuation that have not changed over time. See *Revision of Oil Product Valuation Regulations and Related Topics* , 53 FR 1184 (Jan. 15, 1988) (“Although the parties may have common interests elsewhere, their interests must be opposing with respect to the contract in issue. The general presumption is that persons buying or selling products from Federal and Indian leases are willing, knowledgeable, and not obligated to buy or sell.”) We affirm those principles today. As was predicted by the commenter in 1988, the appeals process has not only provided protection against arbitrary decisions, but it has also resulted in administrative precedent interpreting the phrase “opposing economic interest.” For example, through appeals such as *Vastar Resources, Inc.* , 167 IBLA 17 (2005), the Department of the Interior has determined that “opposing economic interests” need not be absolute in order to meet the definition of an “arm's-length contract.” Accordingly, MMS will focus on the parties' economic interests in the specific contract at issue, and the fact that the parties may have common interests elsewhere does not necessarily negate their ability to have opposing economic interests with respect to the contract under view. Further, opposing economic interests are rarely absolute even within a single contract. For example, between two parties to an oil and gas lease, some economic interests are common and some are opposed. When oil is taken in kind, the common economic interest of production may appear to outweigh the remaining opposing economic interests. In *Vastar* , the Interior Board of Land Appeals considered objective factors such as the contentious negotiations leading to the execution of the contract, the terms of the contract, and the parties' subsequent conduct as evidence of the parties' opposing economic interests regarding the particular sales contract. For purposes of interpreting the definition of “opposing economic interests,” MMS will follow the decisions of the Interior Board of Land Appeals until further rulemaking prescribes otherwise. This final rule adopts the proposed definitions of *affiliate* and *arm's-length contract.* The MMS believes the existing definitions at § 206.51, should be amended to be consistent with the DC Circuit's decision in *National Mining Association* v. *Department of the Interior* , 177 F.3d 1 (DC Cir. 1999). The new definition of *affiliate* and the clarification to the definition of *arm's-length contract* will also make the definitions consistent with the 2004 Federal Oil Final Rule. As we explained in amending the definition of “affiliate” in the Federal crude oil valuation rule promulgated on March 15, 2000 (effective June 1, 2000): In *National Mining Association* v. *Department of the Interior* , 177 F.3d 1 (DC Cir. 1999) (decided May 28, 1999), the United States Court of Appeals for the District of Columbia Circuit addressed the Office of Surface Mining Reclamation and Enforcement's (OSM's) so-called “ownership and control” rule at 30 CFR 773.5(b). That rule presumed ownership or control under six identified circumstances. One of those circumstances was where one entity owned between 10 and 50 percent of another entity. The court found that OSM had not offered any basis to support the rule's presumption “that an owner of as little as ten per cent of a company's stock controls it.” 177 F.3d at 5. The court continued, “While ten percent ownership may, under specific circumstances, confer control, OSM has cited no authority for the proposition that it is ordinarily likely to do so.” Id. * * * In the final rule, MMS is revising the definition of “affiliate” in light of the National Mining Association decision. In the event of ownership or common ownership of between 10 and 50 percent, paragraph

(2)of the definition in the final rule, instead of creating a presumption of control, identifies a number of factors that MMS will consider in determining whether there is control under the circumstances of a particular case. 65 FR 14022, 14039 (Mar. 15, 2000). We adopt the same amendment here for Indian leases. Thus, the final rule replaces the presumption of control (and the consequent presumption of a non-arm's-length relationship) in the current rule, in the event of ownership or common ownership of 10 through 50 percent of the voting stock, with a case-by-case examination of the circumstances. We emphasize that MMS will not presume control in the event of ownership or common ownership of 10 through 50 percent. MMS anticipates that in considering the factors identified in paragraph

(2)of the definition, the facts of a particular case would demonstrate control (and therefore affiliation) only in exceptional circumstances. MMS anticipates that the facts will show that the relationship between corporate entities with minority ownership or common ownership is an arm's-length relationship in the vast majority of cases. MMS presumes in the absence of other evidence that transactions between corporate entities with minority ownership or common ownership are undertaken in good faith. The applicable rule is generally expressed in State Public Utilities Commission *ex rel.* Springfield v. Springfield Gas and Electric Company, 291 Ill. 209, 234. Whether a contract or arrangement between the lessee and its purchaser should be regarded as arm's length or non-arm's length does not depend on whether the lease is a Federal lease or an Indian lease. The MMS proposed to change the definition of *area* as part of the proposed major portion value calculation changes. This final rule does not include the proposed change to the definition of *area.* That term is still used in the major portion valuation provisions, which remain unchanged in this final rule for the reasons explained below. Therefore, the definition of *area* at § 206.51 is retained. This final rule does not include the proposed definition of *designated area* because, as explained below, this final rule does not adopt the proposed major portion valuation provisions. This final rule adopts the proposed definition of *exchange agreement* , which is used in the new valuation provisions at § 206.52(e). This final rule includes the proposed changes to the definition of *gross proceeds.* This change is consistent with the 2004 Federal Oil Final Rule and makes helpful technical clarifications. There were no comments on this proposed change. This final rule adopts the proposed definitions of *Indian tribe* and *individual Indian mineral owner.* The new wording clarifies that this rule applies to Indian tribes for whom the U.S. holds a mineral in trust or to individual Indians who hold title to a mineral subject to a restriction against alienation. This is more specific than the former reference to lands held in trust or subject to a restriction against alienation. This final rule adopts the proposed definitions of *lessee* and *operating rights owner* , except that the final rule does not adopt clause

(3)of the proposed definition of “lessee.” With one exception, the changes in wording that are adopted are technical corrections and clarifications. As the Court noted in *Fina Oil and Chemical Corp.* v. *Norton* , 332 F.3d 672 (DC Cir. 2003), regarding gross proceeds and the definition of “lessee,” the term “lessee” was defined by Federal statute as “any person to whom the United States, an Indian tribe, or an Indian allottee issues a lease, or any person who has been assigned an obligation to make royalty or other payments required by the lease.” Public Law No. 97-451 § 3(7), 96 Stat. 2447, 2449 (amended in 1996 to read “any person to whom the United States issues an oil and gas lease or any person to whom operating rights in a lease have been assigned”), codified at 30 U.S.C. 1702(7). The 1988 regulations followed this statutory definition. In the *Fina* case, the court found that MMS improperly sought to use a wholly-owned subsidiary's arm's-length resale proceeds as the measure of the lessee's gross proceeds in conflict with the regulation's plain language. (Under the 1988 valuation rules, the affiliate's resale proceeds were used as value only if the affiliate was a “marketing affiliate,” defined as an affiliate of the lessee whose function was to acquire only the lessee's production and market that production. The royalty value of oil transferred non-arm's length to the marketing affiliate was the affiliate's gross proceeds, provided the marketing affiliate sold the oil at arm's length.) The *Fina* court suggested that if MMS believes that basing value on the intra-corporate transfer is too favorable to producers, it should amend the regulations through notice-and-comment rulemaking, not under the guise of interpretation. MMS is doing so in this final rule in the revised 30 CFR 206.52(a). In this respect, this rule is making the same change made in the Federal crude oil valuation rule in 2004 at 30 CFR 206.102(a). In many respects, this final Indian oil valuation rule follows the same organization and structure as the Federal oil valuation rule promulgated on March 15, 2000, as amended May 5, 2004. The final Federal oil valuation rule adopted in March 2000 did not distinguish between “marketing affiliates,” as defined in 1998, and other affiliates, because MMS adopted an altogether new valuation approach. That is, the value of oil produced from a Federal lease and transferred to any affiliate is now determined by the affiliate's ultimate disposition of that oil or, at the lessee's option under certain conditions, at an index-based value or other applicable measure. The definition of “marketing affiliate” therefore was removed from the Federal oil valuation rule. In the Indian lease context, MMS did not propose, and this final rule does not include, an index-based valuation option because for the vast majority of Indian leases, it is either impractical or impossible to derive reliable adjustments for location and quality between the lease and a market center with reliable published index prices. Further, in view of the lower volumes and number of transactions involved for most Indian leases, such an option would serve little purpose. As explained elsewhere in this preamble, the final rule simply adopts the proposal to replace the “benchmarks” originally promulgated in 1988, which have proven to be difficult to apply in practice, with the first arm's-length sale (minus any transportation costs) as the basis of value in the event of a non-arm's-length transfer by the lessee, and where the oil is sold at arm's-length before refining—a rare circumstance in the context of Indian leases that produce crude oil. Since the general valuation approach adopted today eliminates the “marketing affiliate” distinction by focusing on the first arm's-length sale, it is appropriate that the definition of “marketing affiliate” be removed from these regulations. However, it does not follow that the definition of “lessee” needs to be amended. Moreover, MMS has written this rule in plain English format, using the term “you” to mean a lessee, operator, or other person who pays royalties under this subpart. In all, particularly in light of the removal of the definition of “marketing affiliate,” MMS is adopting the definition of “lessee” as proposed without proposed clause

(3)incorporating affiliates. As the term “lessee” is used throughout the final rule, it either refers to the royalty payor or is specifically distinguished from the term “affiliate.” This change continues to support the general valuation approach adopted today and is consistent with statutory interpretation principles set out in *United States* v. *Bestfoods* , 524 U.S. 51, 61 (1998). Currently, there is no definition of the term *lessor* in any of the Indian valuation regulations. Because this term is used in numerous places in the regulations, MMS proposed to add a definition in the 2006 Indian Oil Proposed Rule. This final rule adopts the proposed definition of *lessor.* This final rule does not include the proposed definition of *oil type* because the final rule does not adopt the proposed major portion provisions. As explained further below, MMS plans to refer the major portion issue to a negotiated rulemaking committee. In this final rule, the term *like-quality lease products* will be changed to *like-quality oil* , and the reference to similar legal characteristics in the current definition of like-quality lease products will be deleted. The term *like-quality lease products* is not used in the regulations governing Indian oil valuation at §§ 206.50 through 206.55. The definition at § 206.51 is identical to the definitions in the 2005 Federal Gas Final Rule and 1999 Indian Gas Final Rule (see §§ 206.151 and 206.171). The existing regulations at § 206.51 and the changes made in this final rule, however, refer to *like-quality oil* ; and this final rule therefore will define that term. The existing definition refers to “similar chemical, physical, and legal characteristics.” Crude oil has not been price-controlled in the last 25 years, and there are no legal classifications of crude oil that have any bearing on royalty valuation issues. We therefore have deleted the reference to similar legal characteristics. This final rule includes the proposed definitions of *location differential* and *quality differential* because those terms are used in the provisions governing valuation of oil disposed of under arm's-length exchange agreements. In the 2006 Indian Oil Proposed Rule, MMS proposed to change the definition of the term *marketable condition* in § 206.51 to mean lease products that are sufficiently free from impurities and otherwise in a condition that they will be accepted by a purchaser under a sales contract or transportation contract typical for disposition of production from the field or area. The current definition refers to lease products that are sufficiently free from impurities and otherwise in a condition that they will be accepted by a purchaser under a sales contract typical for the field or area. *Summary of Comments:* Three industry associations commented on this proposed change. With respect to the proposed change in the definition of *marketable condition* to add a reference to transportation contracts, one industry association said: We do accept that MMS has the authority to require the lessee to put the oil in the condition that contracts for the sale and purchase of oil typical in a field or area require, or to pay MMS on the value that oil in such condition would realize. * * * We believe it is clear that it would not be reasonable for a producer of sour oil on the outer continental shelf to be required to sweeten oil simply because the pipeline in the area happens to be unwilling to transport any sour oil. Similarly, if oil is of a viscosity that allows it to be transported by truck, but which is too viscous to be transported by the local pipeline without blending, blending is not needed to put the oil in marketable condition. The oil is marketable in exactly the form it is in. It is acceptable to the party who will ultimately use it. * * * [W]e strongly disagree with the proposal to require a lessee to meet the requirements of transportation contracts at no cost to the lessor. MMS has given no reasons for this proposed change and we believe that it is clear that the requirements of transportation contracts are different in kind from the requirements of sales contracts and that such costs are costs associated with transportation and should be deductible. Another industry association opposes the proposed change to the definition of *marketable condition* because, in the association's view, it arbitrarily classifies certain deductible transportation costs as nondeductible costs of placing production in marketable condition. The third commenting industry association stated that it did not understand the proposed change. *MMS Response:* The marketable condition rule has always required lessees to remove basic sediment and water to the level required for the relevant pipeline. There appears to be no controversy in this respect. It is not our intention to require a lessee to sweeten sour oil at its own expense simply because a particular pipeline does not accept sour oil and the marketable condition rule has never been interpreted to impose such a requirement. MMS is not adopting the proposed change to the definition of “marketable condition” in this final rule because it is not necessary to do so, particularly in the context of crude oil production and sales. MMS will continue to use the existing definition, which is the same as the definition used in the Federal oil valuation rule. MMS continues to follow the marketable condition principle set out in *United States* v. *General Petroleum Corp.* of California, 73 F.Supp. 225, aff'd, *Continental Oil Co.* v. *United States,* 184 F.2d 802 (9th Cir. 1950). This final rule eliminates the definitions of the terms *load oil, minimum royalty, net profit share, oil shale,* and *tar sands* because none of those terms is used either in the existing regulations governing Indian oil valuation at §§ 206.51 through 206.55 or in this final rule. This final rule also deletes the last sentence of the existing definition of *oil,* because neither the existing § 206.51 definition nor this final rule refers to or uses the term *tar sands.* This final rule also eliminates the definitions of *marketing affiliate, net-back method,* and *posted price* because the regulations no longer contain those terms. This final rule retains the definition of *selling arrangement* in the existing § 206.51, which the 2006 Indian Oil Proposed Rule would have eliminated, because the transportation allowance provisions of the existing regulations at § 206.55 are not changed in this final rule, as explained below. Those provisions use the term *selling arrangement.* The MMS recognizes that payors no longer report royalties or allowances by selling arrangement. The MMS published the 2006 Reporting Amendments Proposed Rule that would amend the transportation allowance rules and eliminate that term. However, a final rule has not been published. Therefore, MMS has not eliminated the term *selling arrangement* in this final rule. B. General Valuation Approach The 2006 Indian Oil Proposed Rule first analyzed where oil is produced from Indian leases and how it is marketed. Among other things, the discussion in the preamble to the 2006 Indian Oil Proposed Rule noted that the overwhelming majority of crude oil produced from Indian leases is reported as being sold at arm's length at the lease. There are relatively few non-arm's-length dispositions of oil reported and only one situation in which the lessee or its affiliate refines oil produced from the lessee's leases. In all other instances, it appears that oil is sold at arm's length at some point before it is refined. There are also very few instances in which lessees are reporting transportation allowances. At the present time, only two lessees of Indian leases are reporting transportation allowances for crude oil. One of those involves a non-arm's-length transportation arrangement. Currently, one of the major producing tribes takes more than 90 percent of its royalty oil in-kind. In addition, Indian tribal and allotted leases are distributed geographically much differently than Federal leases, and oil produced from Indian leases is marketed much differently than oil produced from Federal leases. Except for the possibility of some oil sold in Oklahoma, which accounts for only about 10 percent of the oil sold from Indian leases, oil produced from Indian leases apparently does not flow to, and is not exchanged to, Cushing, Oklahoma, where New York Mercantile Exchange (NYMEX) prices are published. Thus, with the exception of Oklahoma and possibly one type of oil produced in Wyoming, it is extremely difficult to obtain reliable location and quality differentials between Cushing and areas where the large majority of the oil is produced from Indian leases, including the San Juan Basin, northeastern Utah, Wyoming (for other oil types), and Montana. Even in Oklahoma, almost all the oil sold from Indian leases is reported to MMS as sold at arm's length. In light of these facts, and in contrast to the earlier 1998 Indian Oil Proposed Rule Comment Period Extension and the 2000 Indian Oil Supplementary Proposed Rule, in the 2006 Indian Oil Proposed Rule, MMS proposed not to use either NYMEX or spot market index pricing as primary measures of value for oil produced from Indian leases. Because of the environment in which Indian oil is produced and marketed, MMS proposed in the 2006 Indian Oil Proposed Rule to value oil at the gross proceeds the lessee or its affiliate receives in an arm's-length sale. In the event a lessee first transfers its oil to an affiliate and the oil is sold at arm's length before being refined, MMS proposed to use the arm's-length sale by the affiliate as the basis for royalty valuation. In addition to the fact that the first arm's-length sale is the best measure of the value of the oil, the proposed approach also would resolve the issue created by the DC Circuit's interpretation of the gross proceeds rule and the term lessee in the Federal gas royalty valuation rules in *Fina Oil and Chemical Corp.* v. *Norton, supra.* In the rare situations in which the sale occurs away from the lease, the 2006 Indian Oil Proposed Rule provided for transportation allowances. The MMS also proposed to specify that if a lessee sells oil produced from a lease under multiple arm's-length contracts instead of just one contract, the value of the oil would be the volume-weighted average of the total consideration for all contracts for the sale of oil produced from that lease. Further, in the event that the lessee or its affiliate enters into one or more arm's-length exchanges, and, if the lessee or its affiliate ultimately sells the oil received in exchange, the value would be the gross proceeds for the oil received in exchange, adjusted for location and quality differentials derived from the exchange agreement(s). If the lessee exchanges oil produced from Indian leases to Cushing, Oklahoma, value would be the NYMEX price, adjusted for location and quality differentials derived from the exchange agreements. If the lessee does not ultimately sell the oil received in exchange and does not exchange oil to Cushing, the lessee must ask MMS to establish a value based on relevant matters. Finally, if the lessee transports the oil produced from the lease to its own or its affiliate's refinery, the 2006 Indian Oil Proposed Rule would require the lessee to value the oil at the volume-weighted average of the gross proceeds paid or received by the lessee or its affiliate, including the refining affiliate, for purchases and sales under arm's-length contracts of other like-quality oil produced from the same field (or the same area if the lessee does not have sufficient arm's-length purchases and sales from the field) during the production month, adjusted for transportation costs. If the lessee purchases oil away from the field(s) and if it cannot calculate a price in the field(s) because it cannot determine the seller's cost of transportation, it would not include those purchases in the weighted-average price calculation. *Comment:* The principal comment received regarding the general valuation approach described above was from an Indian tribe. The tribe would prefer that MMS adopt the 2000 Indian Oil Supplementary Proposed Rule that MMS withdrew in February 2005 in the 2005 Establishing Oil Value for Royalty Due on Indian Leases—Workshop **Federal Register** notice. Failing that, the tribe would prefer that MMS continue to value its oil under the existing regulations at §§ 206.50 through 206.55. The tribe's comments focus on the unreliability of posted prices and the consequent prior proposals to look to NYMEX or spot market index values. The tribe argued that “MMS does not describe the ‘environment’ that it believes justifies continuing its gross proceeds/posted prices methodology. It provides absolutely no findings of how the environment has changed from the year 2000 to the present year, and how this change justifies its policy reversal.” The tribe further asks, “Why does MMS cite a high percentage of arm's-length transactions as a justification for never using market pricing benchmarks?” None of the industry commenters expressed any objection to using the gross proceeds derived from the affiliate's arm's-length resale as the measure of value if the lessee first transfers oil to an affiliate. *MMS Response:* The MMS agrees that posted prices are not a reliable measure of value in the current market environment. Contrary to these comments, the 2006 Indian Oil Proposed Rule does not rely on posted prices. Whether a sales price happens to be established with reference to a posted price in any particular case is irrelevant if the contract was negotiated at arm's length. The 2006 Indian Oil Proposed Rule would not establish value with reference to posted prices independent of actual gross proceeds. The tribe appears to object to using arm's-length gross proceeds if the price set in an arm's-length contract happens to refer to or be based on a posted price. However, it does not explain why the negotiated arm's-length gross proceeds derived by a lessee or its affiliate is an improper or insufficient measure of value. Further, the tribe's apparent preference for use of NYMEX or spot market index prices overlooks the fact that oil produced from Indian leases in the San Juan Basin is not generally transported or exchanged to Cushing, Oklahoma, or to another market center with an established spot market price. The tribe's comments thus overlook the consequent difficulty in determining reliable location and quality differentials that would be essential in using NYMEX or spot market index prices as a basis for valuation. *Comment:* With respect to oil that is exchanged for other oil under exchange agreements, the tribe commented: Under the law [i.e., the 1988 rules], the Nation's royalty is to be a share of the gross proceeds from the sale of oil from Navajo leases. In the 1988 Rule, MMS determined that the value of tribal oil for royalty purposes could reasonably be calculated using a company's actual gross proceeds based on posted prices. * * * Instead the companies entered into elaborate transfer and exchange agreements with affiliates, which allowed the companies to sell oil produced from Navajo leases for prices that were significantly higher than a company's posted price * * * the Nation's royalty share did not reflect the premium prices the companies received for Navajo oil. The tribe further comments: Simply put, MMS has forgotten why it sought to amend its valuation policies beginning with its draft rule in 1997. And those reasons are as valid today as they were in 1997: To eliminate the practices of the oil and gas industry to undervalue production through artificially posted prices for oil at the wellhead, when oil is actually exchanged/ transferred and/or valued at other locations to the benefit of oil companies. *MMS Response:* The 2006 Indian Oil Proposed Rule addresses the commenter's concern regarding exchange agreements. Under the proposed rule, any “premium” realized through an arm's-length exchange would be captured in the royalty value because value would be based on the gross proceeds derived from an arm's-length sale of the oil received in exchange (unless the oil is exchanged to Cushing, Oklahoma). If oil is first exchanged not at arm's length, i.e., with an affiliate, the proposed rule would require valuing the oil on the basis of the affiliate's arm's-length resale price in any event. *Comment:* One industry association said that it “supports the use of comparable purchases and sales from the same field or area in the situation where the lessee refines its own oil, and the exclusion of off-lease purchases that cannot be normalized.” *MMS Response:* No commenter expressed objections to using the volume-weighted average of the gross proceeds paid or received by the lessee or its affiliate, including the refining affiliate, for purchases and sales under arm's-length contracts of other like-quality oil produced from the same field or area, adjusted for transportation costs, if the lessee or the lessee's affiliate refines the lessee's oil. This final rule therefore adopts the 2006 Indian Oil Proposed Rule approach to replace the “benchmarks” currently outlined at § 206.52(c) for valuing oil not sold at arm's length. If such oil is sold before being refined, value will be based on the affiliate's arm's-length resale price. If the lessee or its affiliate refines the oil without an arm's-length sale, value will be based on the volume-weighted average of the gross proceeds paid or received for arm's-length purchases and sales of other like-quality oil produced from the same field or area. Further, by adopting the proposed provisions for valuing production disposed of through arm's-length exchange agreements, this final rule ensures that any “premium” realized in the sale of oil received in exchange will be included in the royalty value. This final rule therefore addresses the tribe's comment that MMS should “close a loophole that allows the oil companies to circumvent congressional intent and MMS's rules.” C. Major Portion Valuation The 2006 Indian Oil Proposed Rule would have made a number of changes to the major portion valuation provisions of the rule. The proposed rule would have used values reported on Form MMS-2014 for arm's-length sales (and affiliate's arm's-length resales) of Indian oil, and values reported for oil taken in kind, produced from a designated area that MMS would identify. Values reported for oil that is refined without being sold at arm's length would not have been included in the calculation. The proposed rule would not have changed the percentile at which the major portion value is determined, i.e., the 50th percentile by volume plus one barrel of oil. Under the 2006 Indian Oil Proposed Rule, to normalize reported values for each oil type produced from the designated area to a common quality basis, MMS would have adjusted for API gravity using applicable posted price gravity adjustment tables. The MMS would have calculated separate major portion values for different oil types because the lease provision expressly refers to “like-quality” oil. The MMS would have designated oil types that are produced from each designated area. To obtain the information necessary to make these calculations and adjustments, the 2006 Indian Oil Proposed Rule would have required the royalty payors to report API gravity and oil type on Form MMS-2014. The MMS then would have arrayed the normalized and adjusted (for transportation costs) values in order from the highest to the lowest, together with the corresponding volumes reported at those values. The major portion value would be the normalized and adjusted price in the array that corresponds to the 50th percentile by volume plus one barrel of oil, starting from the bottom. Under the 2006 Indian Oil Proposed Rule, lessees initially would have reported on Form MMS-2014 the value of production at the value determined under the other provisions of the rule and would pay royalty on that value. The MMS then would have calculated the major portion values and notified lessees of the major portion values by publishing a notice in the **Federal Register** and making them available on the MMS Web site, together with the normalized gravity and the adjustment tables. The lessee then would have compared the major portion value to the value initially reported on Form MMS-2014, normalized and adjusted for gravity and transportation. If the major portion value were higher than the value initially reported, normalized and adjusted for gravity and transportation, the lessee would have had to submit an amended Form MMS-2014, reporting the value as the major portion value, and pay any additional royalty owed. *Comments:* The majority of the comments MMS received on the 2006 Indian Oil Proposed Rule addressed the major portion issue. Both of the Indian tribal commenters and all the industry commenters opposed the proposed changes, but for different reasons. In general, the tribal commenters believed that the percentile at which the major portion should be measured should be consistent with the Indian gas royalty valuation provisions (i.e., the 25th percentile starting from the top of the array, rather than the 50th percentile plus one unit of production starting from the bottom of the array). The tribal commenters also argued that the major portion calculation should not be limited to Indian leases in a “designated area.” One tribal commenter argued that MMS should retain the existing reference to a “field,” and include all Indian, Federal, state, and private leases that may be within the field. The other tribal commenter argued that the calculation either should be expanded to include at least Federal leases outside the designated area or that the designated area should be expanded to include Federal leases in the area. The tribal commenters supported the concept of normalizing oil prices to a uniform quality before calculating the major portion value. Industry commenters vigorously opposed the proposed requirements to report oil gravity and type. They also opposed any expansion of a designated area to include Federal leases, particularly because the requirement to report oil gravity and type would extend to those Federal leases identified as being within a designated area. The industry commenters asserted that the systems changes that these requirements would necessitate, including both programming changes and the development of different reporting systems for Federal and Indian leases, would be prohibitively expensive and out of proportion to any difference in royalty value that might result. One industry association also argued that including Federal leases in the major portion calculation would result in application to those Federal leases certain records retention requirements that now apply only to Indian leases, causing further disruptions to lessees' recordkeeping and systems operations. Industry commenters agreed with retaining the 50th percentile by volume plus one barrel of oil as the measure of what constitutes the major portion and opposed any suggestion to change that measure to a higher level. *MMS Response:* There appears to be almost no issue regarding major portion valuation on which the tribal and industry commenters agree, and none of the commenters support the major portion provisions of the proposed rule. As a consequence, MMS has decided not to promulgate any amendment to the current major portion provisions at the existing § 206.52(a)(2) in this final rule and to convene a negotiated rulemaking committee to consider all aspects of major portion valuation. Because of the way the amended valuation provisions for arm's-length sales and non-arm's-length dispositions are codified, paragraphs (a)(2)(i) and

(ii)of the existing § 206.52 are redesignated in this final rule as a new § 206.54(a) and (b). D. Transportation Allowances The MMS made several proposals regarding transportation allowances in the 2006 Indian Oil Proposed Rule. If the transportation arrangement is at arm's length, the proposed rule would incorporate the provisions of the 2000 Federal Oil Final Rule, as amended in 2004, in calculating that allowance. That allowance is based on the actual cost paid to an unaffiliated transportation provider. For arm's-length transportation allowances, MMS also proposed to eliminate the requirement at § 206.55(c)(1), to file Form MMS-4110, Oil Transportation Allowance Report. Instead of Form MMS-4110, the lessee would have to submit copies of its transportation contract(s) and any amendments thereto within 2 months after the lessee reported the transportation allowance on Form MMS-2014. This proposed change mirrors the elimination of the requirement to file the analogous Form MMS-4295 for arm's-length transportation allowances under the 1999 Indian Gas Final Rule. For non-arm's-length transportation arrangements, the lessee would have to calculate its actual costs. Under the 2006 Indian Oil Proposed Rule, Form MMS-4110 would still be required, but the requirement to submit a Form MMS-4110 in advance with estimated information would be eliminated. Instead, the lessee would submit the actual cost information to support the allowance on Form MMS-4110 within 3 months after the end of the 12-month period to which the allowance applies. This proposal also mirrors the change made in the 1999 Indian Gas Final Rule at § 206.178(b)(1)(ii). The MMS also proposed that the non-arm's-length allowance calculation, and the costs that would be allowable and non-allowable under the non-arm's-length transportation allowance provisions, be revised to incorporate the provisions of the 2004 Federal Oil Final Rule. The 2000 Federal Oil Final Rule provides that the lessee must base its transportation allowance in a non-arm's-length or no-contract situation, on the lessee's actual costs. These include

(1)operating and maintenance expenses;

(2)overhead;

(3)depreciation;

(4)a return on undepreciated capital investment; and

(5)a return on 10 percent of total capital investment once the transportation system has been depreciated below 10 percent of total capital investment (§ 206.111(b)). The MMS proposed to incorporate the same cost allowance structure into the 2006 Indian Oil Proposed Rule, as discussed in more detail below. Before June 1, 2000, the regulations for Federal oil valuation provided (as do current Indian oil valuation regulations) that, in the case of transportation facilities placed in service after March 1, 1988, actual costs could include either depreciation and a return on undepreciated capital investment or a cost equal to the initial investment in the transportation system multiplied by the allowed rate of return. The regulations before June 1, 2000, did not provide for a return on 10 percent of total capital investment once the system has been depreciated below 10 percent of total capital investment. The 2000 Federal Oil Final Rule eliminated the alternative of a cost equal to the initial investment in the transportation system multiplied by the allowed rate of return because it became unnecessary in view of the other changes made in the rule and because it had been used in very few, if any, situations. The 2000 Federal Oil Final Rule also set forth the basis for the depreciation schedule to be used in the depreciation calculation. See § 206.111(h). The MMS proposed to adopt identical provisions for this rule through incorporation, except that the relevant date would have been the effective date of a final rule that adopted those provisions. In the 2000 Federal Oil Final Rule, the depreciation schedule for a transportation system depended on whether the lessee owned the system on, or acquired the system after, the effective date of the final rule. The MMS proposed to apply the same principle in the context of Indian leases. Finally, the 2004 Federal Oil Final Rule, which amended § 206.111(i)(2), changed the allowed rate of return used in the non-arm's-length actual cost calculations from the Standard & Poor's BBB bond rate to 1.3 times the BBB bond rate. In March 2005, MMS promulgated an identical change to the allowed rate of return used in the calculation of actual costs under non-arm's-length transportation arrangements in the 2005 Federal Gas Final Rule, which amended § 206.157(b)(2)(v). The proposed change to this rule would incorporate this same change, for the same reasons the rate of return was changed in the 2004 Federal Oil Final Rule and 2005 Federal Gas Final Rules (i.e., 1.3 times the BBB bond rate more accurately reflects the lessees' cost of capital). *Comments:* One of the two tribal commenters offered specific comments on the transportation allowance provisions of the proposed rule. The tribe expressed concern “that the MMS would ultimately apply transportation allowance criteria established for Federal leases upon Indian leases, without due consideration for certain Indian lease provisions and policies.” However, the tribe did not explain which cost elements it believed to be improper and did not identify any difference in relevant lease terms between Indian and Federal leases. The tribe opposes eliminating the Form MMS-4110 filing requirement. The tribe “believes that Indian lessors should and must receive prior notification of all allowance deductions from its [sic] royalty and, if MMS is correct in that transportation allowances are limited for Indian leases, then it should not be burdensome for the few royalty reporters to continue to submit Form MMS-4110.” The tribe opposes changing rate of return used in calculating actual transportation costs under non-arm's-length transportation arrangements and wants MMS to retain the BBB rate in the existing rule at § 206.55(v). The other tribal commenter appears to oppose the transportation allowance provisions as part of its general opposition to the entire proposed rule. One of the industry association commenters supports using the same transportation cost elements for Indian and Federal leases. The commenter agrees with the proposed elimination of Form MMS-4110 and supports the proposed change in the rate of return used in calculating actual transportation costs to 1.3 times the BBB bond rate. However, the commenter expresses concerns about the accessibility of that rate and wants MMS to post the rate. Another industry association commenter says that there is no reason to treat oil pipeline costs differently depending on lessor ownership. That commenter also supports changing the rate of return to 1.3 times the BBB bond rate for the same reason that the rate was changed in the 2004 Federal Oil Final Rule and 2005 Federal Gas Final Rule. This commenter further suggests (presumably referring to non-arm's-length situations) that reporting actual transportation costs in the production month in which they occur is burdensome. The commenter notes that the Royalty Reporting Subcommittee of the Royalty Policy Committee (an MMS advisory committee) developed several options for making prior-period adjustments, but none of the options were adopted because the stakeholders couldn't reach consensus. This commenter also supports eliminating the requirement to pre-file Form MMS-4110 for non-arm's-length transportation arrangements and eliminating any form filing for arm's-length transportation arrangements. The commenter also opposes having to file arm's-length transportation contracts and amendments with MMS as unnecessarily burdensome because lessees have to retain those documents and provide them on request in any event. *MMS Response:* At the present, lessees are reporting only three transportation allowances on Indian leases. Two are arm's-length transportation arrangements on certain Ute tribal leases and the other is a non-arm's-length transportation arrangement for production from certain Shoshone and Arapaho leases on the Wind River Reservation. The issues involved in the proposed amendments to the transportation allowance provisions are difficult and have generated an unusual degree of controversy relative to the very limited number of transactions to which they apply. The MMS believes that further analysis of these questions is appropriate and has decided to reserve the transportation allowance issue for a possible future supplemental final rulemaking. If MMS decides to seek further comment on the transportation allowance provisions of the proposed rule, it will publish an appropriate notice. In view of the change to the structure of the codified sections of the rule resulting from the changes to the valuation provisions, the existing transportation allowance rules (§§ 206.54 and 206.55 of the existing rule) are redesignated in this final rule as §§ 206.56 and 206.57. Certain conforming amendments are also made to correct cross-references to other sections. Otherwise, the existing rules remain unchanged. E. Other Issues In proposed § 206.50, MMS proposed adding a provision that, if the regulations are inconsistent with a Federal statute, a settlement agreement or written agreement, or an express provision of a lease, then the statute, settlement agreement, written agreement, or lease provision would govern to the extent of the inconsistency. A “written agreement” would mean a written agreement between the lessee and the MMS Director, and approved by the tribal lessor for tribal leases, establishing a method to determine the value of production from any lease that MMS expects at least would approximate the value established under the regulations. The MMS received no comments opposed to this provision, and this final rule adopts it. Regarding records retention, the proposed rule explained that proposed § 206.64 is adapted from § 206.105, and that the time for which records must be maintained is governed by § 103(b) of the Federal Oil and Gas Royalty Management Act, 30 U.S.C. 1713(b), as originally enacted. That requirement is not affected by the change in 30 U.S.C. 1724(f), which was enacted as part of the Federal Oil and Gas Royalty Simplification and Fairness Act of 1996 and applies only to Federal leases. The referenced regulations in proposed § 206.64 reflect this difference. The MMS received no comments opposed to this provision, and this final rule adopts it. III. Procedural Matters 1. Summary Cost and Royalty Impact Data There will be no additional administrative costs/savings or royalty impacts as a result of this final rule. There will be no change in royalties or administrative burdens to industry, state and local governments, Indian tribes, individual Indian mineral owners, or the Federal Government. All administrative costs/savings and royalty impacts listed in the 2006 Indian Oil Proposed Rule were the result of the proposed major portion provision, the additional information collection required by that provision, and the transportation allowance provision. The majority of the costs under the 2006 Indian Oil Proposed Rule were associated with the proposed major portion provision. Neither the proposed major portion provision nor the proposed transportation allowance provision is adopted under this final rule. As a result, the existing provisions at § 206.50 through 206.55 will be retained. In Section II, Comments on the Proposed Rule, MMS explains plans to convene a negotiated rulemaking committee that will make recommendations regarding the implementation of the major portion provision found in most Indian tribal and allotted leases. Also, under Section II D, Transportation Allowance, MMS is reserving the transportation allowances issues for a possible future supplemental final rulemaking. There are no administrative costs and royalty impacts of this final rule to industry, state and local governments, Indian tribes and individual Indian mineral owners, or the Federal Government. 2. Regulatory Planning and Review, Executive Order 12866 This final rule is not a significant regulatory action. However, in view of the subject matter of the regulation, the Office of Management and Budget has reviewed this rule under Executive Order 12866. 1. This rule will not have an effect of $100 million or more on the economy. It would not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. 2. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. 3. This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. 4. This rule does not raise novel legal or policy issues. 3. Regulatory Flexibility Act The Department of the Interior certifies that this final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). An initial Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required. Your comments are important. The Small Business and Agricultural Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions in this rule, call 1-800-734-3247. You may comment to the Small Business Administration without fear of retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with the Department of the Interior. 4. Small Business Regulatory Enforcement Fairness Act (SBREFA) This final rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This final rule: 1. Will not have an annual effect on the economy of $100 million or more. 2. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, state, Indian, or local government agencies, or geographic regions. 3. Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises. 5. Unfunded Mandates Reform Act In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ): 1. This final rule will not significantly or uniquely affect small governments. Therefore, a Small Government Agency Plan is not required. 2. This final rule will not produce a Federal mandate of $100 million or greater in any year; *i.e.* , it is not a significant regulatory action under the Unfunded Mandates Reform Act. An analysis was prepared for the 2006 Indian Oil Proposed Rule; however, because certain provisions of the proposed rule were not adopted under this final rule, there are no apparent cost and royalty impacts to industry, state and local governments, Indian tribes and individual Indian mineral owners, and the Federal Government. Therefore, an analysis for this final rule was not necessary under Executive Order 12866. See Section III, Procedural Matters, Summary Cost and Royalty Impact Data. 6. Governmental Actions and Interference With Constitutionally Protected Property Rights (Takings), Executive Order 12630 In accordance with Executive Order 12630, this final rule will not have significant takings implications. A takings implication assessment is not required. 7. Federalism, Executive Order 13132 In accordance with Executive Order 13132, this final rule will not have significant federalism implications. A federalism assessment is not required. It will not substantially and directly affect the relationship between Federal and state governments. The management of Indian leases is the responsibility of the Secretary of the Interior, and all royalties collected from Indian leases are distributed to tribes and individual Indian mineral owners. This final rule will not alter that relationship. 8. Civil Justice Reform, Executive Order 12988 In accordance with Executive Order 12988, the Office of the Solicitor has determined that this final rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. 9. Paperwork Reduction Act of 1995

(PRA)Based on comments received on the proposed rule, MMS is not revising major portion provisions in the current regulations at 30 CFR 206.50 through 206.55. We have deleted from the final rule all proposed changes to the major portion provisions. We also have revised sections in the proposed rule containing changes to transportation allowances that would have necessitated additional information collections. During the proposed rulemaking stage, we submitted an information collection request to OMB; OMB did not approve the collection at that time. Because there are no longer any new information collection requirements in the final rule, no further submission to OMB is required. Any information collections remaining in the rulemaking have already been approved under the following OMB Control Numbers: • 1010-0103 regarding the MMS Indian oil and gas program—current burden hours are 1,276 (expires June 30, 2009); and • 1010-0140 regarding MMS's primary financial form, the Form MMS-2014, Report of Sales and Royalty Remittance—current burden hours are 158,821 (expires November 30, 2009). We received comments on the proposed changes to Form MMS-2014 and filing requirements. Commenters primarily objected to the cost of system changes that the proposed changes would have required. These comments are addressed in the preamble of this final rule, and none of the proposed changes are included in the final rulemaking. The PRA (44 U.S.C. 3501, *et seq.* ) provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond. 10. National Environmental Policy Act

(NEPA)This final rule deals with financial matters and has no direct effect on MMS decisions on environmental activities. Pursuant to 516 DM 2.3A (2), Section 1.10 of 516 DM 2, Appendix 1, excludes from documentation in an environmental assessment or impact statement “policies, directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature; or the environmental effects of which are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will be subject later to the NEPA process, either collectively or case-by-case.” Section 1.3 of the same appendix clarifies that royalties and audits are considered to be routine financial transactions that are subject to categorical exclusion from the NEPA process. None of the exceptions to the categorical exclusion applies. 11. Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that the changes we are promulgating will not have any apparent impact on tribes and individual Indian mineral owners. During the writing of this final rule, we have consulted extensively with tribal representatives and individual Indian mineral owners regarding the regulatory changes affecting tribes and individual Indian mineral owners in this final rule. See Section I, Background, for additional information regarding public meetings and consultation with tribes and individual Indian mineral owners. Also see Section III, 13, below. 12. Effects on the Nation's Energy Supply, Executive Order 13211 In accordance with Executive Order 13211, this regulation will not have a significant effect on the Nation's energy supply, distribution, or use. The changes better reflect the way industry accounts internally for its oil valuation and provides a number of technical clarifications. None of these changes will affect significantly the way industry does business and, accordingly, will not affect industry's approach to energy development or marketing. Nor will the rule otherwise impact energy supply, distribution, or use. 13. Consultation and Coordination With Indian Tribal Governments, Executive Order 13175 This final rule does not have tribal implications that will impose substantial direct compliance costs on Indian tribal governments. In accordance with Executive Order 13175, and with the Department's policy to consult with individual Indian mineral owners on all policy changes that may affect them, MMS scheduled public meetings in three different locations, announced in the 2005 Establishing Oil Value for Royalty Due on Federal Leases—Workshop, for the purpose of consulting with Indian tribes and individual Indian mineral owners and to obtain public comments from other interested parties. The public meetings were held on March 8, 2005, in Oklahoma City, Oklahoma; on March 9, 2005, in Albuquerque, New Mexico; and on March 16, 2005, in Billings, Montana. The MMS also held five additional consultation sessions with tribes and individual Indian mineral owners to hear and discuss comments, including sessions in Window Rock, Arizona, on June 7, 2005; Fort Duchesne, Utah, on June 9, 2005; Fort Washakie, Wyoming, on June 15, 2005; Muskogee, Oklahoma, on June 16, 2005; and Anadarko, Oklahoma, on June 17, 2005. 14. Clarity of This Regulation Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following:

(1)Are the requirements in the rule clearly stated?

(2)Does the rule contain technical language or jargon that interferes with its clarity?

(3)Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?

(4)Would the rule be easier to understand if it were divided into more (but shorter) sections? A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example, § 204.200.

(5)What is the purpose of this part?

(6)Is the description of the rule in the “Supplementary Information” section of the preamble helpful in understanding the rule?

(7)What else could we do to make the rule easier to understand? Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address: *Exsec@ios.doi.gov.* List of Subjects in 30 CFR Part 206 Continental shelf, Government contracts, Mineral royalties, Natural gas, Petroleum, Public lands—mineral resources. Dated: November 27, 2007. C. Stephen Allred, Assistant Secretary for Land and Minerals Management. For the reasons set forth in the preamble, MMS amends 30 CFR part 206 as follows: PART 206—PRODUCT VALUATION 1. The authority citation for part 206 continues to read as follows: Authority: 5 U.S.C. 301 *et seq.* ; 25 U.S.C. 396, 396a *et seq.* , 2101 *et seq.* ; 30 U.S.C. 181 *et seq.* , 351 *et seq.* , 1001 *et seq.* , 1701 *et seq.* ; 31 U.S.C. 9701; 43 U.S.C. 1301 *et seq.* , 1331 *et seq.* , and 1801 *et seq.* 2. The table of contents for Subpart B—Indian Oil is revised to read as follows: Subpart B—Indian Oil Sec. 206.50 What is the purpose of this subpart? 206.51 What definitions apply to this subpart? 206.52 How do I calculate royalty value for oil that I or my affiliate sell(s) or exchange(s) under an arm's-length contract? 206.53 How do I determine value for oil that I or my affiliate do(es) not sell under an arm's-length contract? 206.54 How do I fulfill the lease provision regarding valuing production on the basis of the major portion of like-quality oil? 206.55 What are my responsibilities to place production into marketable condition and to market the production? 206.56 Transportation allowances—general. 206.57 Determination of transportation allowances. 206.58 What must I do if MMS finds that I have not properly determined value? 206.59 May I ask MMS for valuation guidance? 206.60 What are the quantity and quality bases for royalty settlement? 206.61 What records must I keep and produce? 206.62 Does MMS protect information I provide? §§ 206.54 and 206.55 [Redesignated] 3. Sections 206.54 and 206.55 are redesignated as §§ 206.56 and 206.57. 4. In redesignated § 206.56, the reference to “Section 206.52” in paragraph

(a)and the reference to “§ 206.52” in paragraph (b)(1) are revised to read “§ 206.52 or § 206.53.” The reference to “§ 206.55” in paragraph

(c)is revised to read “§ 206.57.” 5. Sections 206.50 through 206.53 are revised, and §§ 206.54 and 206.55 are added, to read as follows: § 206.50 What is the purpose of this subpart?

(a)This subpart applies to all oil produced from Indian (tribal and allotted) oil and gas leases (except leases on the Osage Indian Reservation, Osage County, Oklahoma). This subpart does not apply to Federal leases, including Federal leases for which revenues are shared with Alaska Native Corporations. This subpart:

(1)Establishes the value of production for royalty purposes consistent with the Indian mineral leasing laws, other applicable laws, and lease terms;

(2)Explains how you as a lessee must calculate the value of production for royalty purposes consistent with applicable statutes and lease terms; and

(3)Is intended to ensure that the United States discharges its trust responsibilities for administering Indian oil and gas leases under the governing Indian mineral leasing laws, treaties, and lease terms.

(b)If the regulations in this subpart are inconsistent with a Federal statute, a settlement agreement or written agreement as these terms are defined in this paragraph, or an express provision of an oil and gas lease subject to this subpart, then the statute, settlement agreement, written agreement, or lease provision will govern to the extent of the inconsistency. For purposes of this paragraph:

(1)*Settlement agreement* means a settlement agreement that is between the United States and a lessee, or between an individual Indian mineral owner and a lessee and is approved by the United States, resulting from administrative or judicial litigation; and

(2)*Written agreement* means a written agreement between the lessee and the MMS Director (and approved by the tribal lessor for tribal leases) establishing a method to determine the value of production from any lease that MMS expects at least would approximate the value established under this subpart.

(c)The MMS or Indian tribes may audit, or perform other compliance reviews, and require a lessee to adjust royalty payments and reports. § 206.51 What definitions apply to this subpart? For purposes of this subpart: *Affiliate* means a person who controls, is controlled by, or is under common control with another person.

(1)Ownership or common ownership of more than 50 percent of the voting securities, or instruments of ownership, or other forms of ownership, of another person constitutes control. Ownership of less than 10 percent constitutes a presumption of noncontrol that MMS may rebut.

(2)If there is ownership or common ownership of 10 through 50 percent of the voting securities or instruments of ownership, or other forms of ownership, of another person, MMS will consider the following factors in determining whether there is control in a particular case:

(i)The extent to which there are common officers or directors;

(ii)With respect to the voting securities, or instruments of ownership, or other forms of ownership:

(A)The percentage of ownership or common ownership;

(B)The relative percentage of ownership or common ownership compared to the percentage(s) of ownership by other persons;

(C)Whether a person is the greatest single owner; and

(D)Whether there is an opposing voting bloc of greater ownership;

(iii)Operation of a lease, plant, or other facility;

(iv)The extent of participation by other owners in operations and day-to-day management of a lease, plant, or other facility; and

(v)Other evidence of power to exercise control over or common control with another person.

(3)Regardless of any percentage of ownership or common ownership, relatives, either by blood or marriage, are affiliates. *Area* means a geographic region at least as large as the defined limits of an oil and/or gas field in which oil and/or gas lease products have similar quality, economic, and legal characteristics. *Arm's-length contract* means a contract or agreement between independent persons who are not affiliates and who have opposing economic interests regarding that contract. To be considered arm's length for any production month, a contract must satisfy this definition for that month, as well as when the contract was executed. *Audit* means a review, conducted in accordance with generally accepted accounting and auditing standards, of royalty payment compliance activities of lessees or other interest holders who pay royalties, rents, or bonuses on Indian leases. *BLM* means the Bureau of Land Management of the Department of the Interior. *Condensate* means liquid hydrocarbons (generally exceeding 40 degrees of API gravity) recovered at the surface without resorting to processing. Condensate is the mixture of liquid hydrocarbons that results from condensation of petroleum hydrocarbons existing initially in a gaseous phase in an underground reservoir. *Contract* means any oral or written agreement, including amendments or revisions thereto, between two or more persons and enforceable by law that with due consideration creates an obligation. *Exchange agreement* means an agreement where one person agrees to deliver oil to another person at a specified location in exchange for oil deliveries at another location, and other consideration. Exchange agreements:

(1)May or may not specify prices for the oil involved;

(2)Frequently specify dollar amounts reflecting location, quality, or other differentials;

(3)Include buy/sell agreements, which specify prices to be paid at each exchange point and may appear to be two separate sales within the same agreement, or in separate agreements; and

(4)May include, but are not limited to, exchanges of produced oil for specific types of oil (e.g., WTI); exchanges of produced oil for other oil at other locations (location trades); exchanges of produced oil for other grades of oil (grade trades); and multi-party exchanges. *Field* means a geographic region situated over one or more subsurface oil and gas reservoirs encompassing at least the outermost boundaries of all oil and gas accumulations known to be within those reservoirs vertically projected to the land surface. Onshore fields usually are given names, and their official boundaries are often designated by oil and gas regulatory agencies in the respective states in which the fields are located. *Gathering* means the movement of lease production to a central accumulation or treatment point on the lease, unit, or communitized area, or to a central accumulation or treatment point off the lease, unit, or communitized area as approved by BLM operations personnel. *Gross proceeds* means the total monies and other consideration accruing for the disposition of oil produced. Gross proceeds also include, but are not limited to, the following examples:

(1)Payments for services, such as dehydration, marketing, measurement, or gathering that the lessee must perform at no cost to the lessor in order to put the production into marketable condition;

(2)The value of services to put the production into marketable condition, such as salt water disposal, that the lessee normally performs but that the buyer performs on the lessee's behalf;

(3)Reimbursements for harboring or terminaling fees;

(4)Tax reimbursements, even though the Indian royalty interest may be exempt from taxation;

(5)Payments made to reduce or buy down the purchase price of oil to be produced in later periods, by allocating those payments over the production whose price the payment reduces and including the allocated amounts as proceeds for the production as it occurs; and

(6)Monies and all other consideration to which a seller is contractually or legally entitled, but does not seek to collect through reasonable efforts. *Indian tribe* means any Indian tribe, band, nation, pueblo, community, rancheria, colony, or other group of Indians for which any minerals or interest in minerals is held in trust by the United States or that is subject to Federal restriction against alienation. *Individual Indian mineral owner* means any Indian for whom minerals or an interest in minerals is held in trust by the United States or who holds title subject to Federal restriction against alienation. *Lease* means any contract, profit-share arrangement, joint venture, or other agreement issued or approved by the United States under an Indian mineral leasing law that authorizes exploration for, development or extraction of, or removal of lease products. Depending on the context, lease may also refer to the land area covered by that authorization. *Lease products* means any leased minerals attributable to, originating from, or allocated to Indian leases. *Lessee* means any person to whom the United States, a tribe, or individual Indian mineral owner issues a lease, and any person who has been assigned an obligation to make royalty or other payments required by the lease. Lessee includes:

(1)Any person who has an interest in a lease (including operating rights owners); and

(2)An operator, purchaser, or other person with no lease interest who makes royalty payments to MMS or the lessor on the lessee's behalf *Lessor* means an Indian tribe or individual Indian mineral owner who has entered into a lease. *Like-quality oil* means oil that has similar chemical and physical characteristics. *Location differential* means an amount paid or received (whether in money or in barrels of oil) under an exchange agreement that results from differences in location between oil delivered in exchange and oil received in the exchange. A location differential may represent all or part of the difference between the price received for oil delivered and the price paid for oil received under a buy/sell exchange agreement. *Marketable condition* means lease products that are sufficiently free from impurities and otherwise in a condition that they will be accepted by a purchaser under a sales contract typical for the field or area. *MMS* means the Minerals Management Service of the Department of the Interior. *Net* means to reduce the reported sales value to account for transportation instead of reporting a transportation allowance as a separate entry on Form MMS-2014. *NYMEX price* means the average of the New York Mercantile Exchange (NYMEX) settlement prices for light sweet oil delivered at Cushing, Oklahoma, calculated as follows:

(1)Sum the prices published for each day during the calendar month of production (excluding weekends and holidays) for oil to be delivered in the nearest month of delivery for which NYMEX futures prices are published corresponding to each such day; and

(2)Divide the sum by the number of days on which those prices are published (excluding weekends and holidays). *Oil* means a mixture of hydrocarbons that existed in the liquid phase in natural underground reservoirs and remains liquid at atmospheric pressure after passing through surface separating facilities and is marketed or used as such. Condensate recovered in lease separators or field facilities is considered to be oil. *Operating rights owner,* also known as a working interest owner, means any person who owns operating rights in a lease subject to this subpart. A record title owner is the owner of operating rights under a lease until the operating rights have been transferred from record title (see Bureau of Land Management regulations at 43 CFR 3100.0-5(d)). *Person* means any individual, firm, corporation, association, partnership, consortium, or joint venture (when established as a separate entity). *Processing* means any process designed to remove elements or compounds (hydrocarbon and nonhydrocarbon) from gas, including absorption, adsorption, or refrigeration. Field processes that normally take place on or near the lease, such as natural pressure reduction, mechanical separation, heating, cooling, dehydration, and compression, are not considered processing. The changing of pressures and/or temperatures in a reservoir is not considered processing. *Quality differential* means an amount paid or received under an exchange agreement (whether in money or in barrels of oil) that results from differences in API gravity, sulfur content, viscosity, metals content, and other quality factors between oil delivered and oil received in the exchange. A quality differential may represent all or part of the difference between the price received for oil delivered and the price paid for oil received under a buy/sell agreement. *Sale* means a contract between two persons where:

(1)The seller unconditionally transfers title to the oil to the buyer and does not retain any related rights such as the right to buy back similar quantities of oil from the buyer elsewhere;

(2)The buyer pays money or other consideration for the oil; and

(3)The parties' intent is for a sale of the oil to occur. *Selling arrangement* means the individual contractual arrangements under which sales or dispositions of oil are made. Selling arrangements are described by illustration in the *MMS Oil and Gas Payor Handbook, Volume III—Product Valuation.* *Transportation allowance* means a deduction in determining royalty value for the reasonable, actual costs of moving oil to a point of sale or delivery off the lease, unit area, or communitized area. The transportation allowance does not include gathering costs. *WTI* means West Texas Intermediate. *You* means a lessee, operator, or other person who pays royalties under this subpart. § 206.52 How do I calculate royalty value for oil that I or my affiliate sell(s) or exchange(s) under an arm's-length contract?

(a)The value of oil under this section is the gross proceeds accruing to the seller under the arm's-length contract, less applicable allowances determined under §§ 206.56 and 206.57. If the arm's-length sales contract does not reflect the total consideration actually transferred either directly or indirectly from the buyer to the seller, you must value the oil sold as the total consideration accruing to the seller. Use this section to value oil that:

(1)You sell under an arm's-length sales contract; or

(2)You sell or transfer to your affiliate or another person under a non-arm's-length contract and that affiliate or person, or another affiliate of either of them, then sells the oil under an arm's-length contract.

(b)If you have multiple arm's-length contracts to sell oil produced from a lease that is valued under paragraph

(a)of this section, the value of the oil is the volume-weighted average of the total consideration established under this section for all contracts for the sale of oil produced from that lease.

(c)If MMS determines that the value under paragraph

(a)of this section does not reflect the reasonable value of the production due to either:

(1)Misconduct by or between the parties to the arm's-length contract; or

(2)Breach of your duty to market the oil for the mutual benefit of yourself and the lessor, MMS will establish a value based on other relevant matters.

(i)The MMS will not use this provision to simply substitute its judgment of the market value of the oil for the proceeds received by the seller under an arm's-length sales contract.

(ii)The fact that the price received by the seller under an arm's-length contract is less than other measures of market price is insufficient to establish breach of the duty to market unless MMS finds additional evidence that the seller acted unreasonably or in bad faith in the sale of oil produced from the lease.

(d)You must base value on the highest price that the seller can receive through legally enforceable claims under the oil sales contract. If the seller fails to take proper or timely action to receive prices or benefits to which it is entitled, you must base value on that obtainable price or benefit.

(1)In some cases the seller may apply timely for a price increase or benefit allowed under the oil sales contract, but the purchaser refuses the seller's request. If this occurs, and the seller takes reasonable documented measures to force purchaser compliance, you will owe no additional royalties unless or until the seller receives monies or consideration resulting from the price increase or additional benefits. This paragraph (d)(1) does not permit you to avoid your royalty payment obligation if a purchaser fails to pay, pays only in part, or pays late.

(2)Any contract revisions or amendments that reduce prices or benefits to which the seller is entitled must be in writing and signed by all parties to the arm's-length contract.

(e)If you or your affiliate enter(s) into an arm's-length exchange agreement, or multiple sequential arm's-length exchange agreements, then you must value your oil under this paragraph.

(1)If you or your affiliate exchange(s) oil at arm's length for WTI or equivalent oil at Cushing, Oklahoma, you must value the oil using the NYMEX price, adjusted for applicable location and quality differentials under paragraph (e)(3) of this section and any transportation costs under paragraph (e)(4) of this section and §§ 206.56 and 206.57.

(2)If you do not exchange oil for WTI or equivalent oil at Cushing, but exchange it at arm's length for oil at another location and following the arm's-length exchange(s) you or your affiliate sell(s) the oil received in the exchange(s) under an arm's-length contract, then you must use the gross proceeds under your or your affiliate's arm's-length sales contract after the exchange(s) occur(s), adjusted for applicable location and quality differentials under paragraph (e)(3) of this section and any transportation costs under paragraph (e)(4) of this section and §§ 206.56 and 206.57.

(3)You must adjust your gross proceeds for any location or quality differential, or other adjustments, you received or paid under the arm's-length exchange agreement(s). If MMS determines that any exchange agreement does not reflect reasonable location or quality differentials, MMS may adjust the differentials you used based on relevant information. You may not otherwise use the price or differential specified in an arm's-length exchange agreement to value your production.

(4)If you value oil under this paragraph, MMS will allow a deduction, under §§ 206.56 and 206.57, for the reasonable, actual costs to transport the oil:

(i)From the lease to a point where oil is given in exchange; and

(ii)If oil is not exchanged to Cushing, Oklahoma, from the point where oil is received in exchange to the point where the oil received in exchange is sold.

(5)If you or your affiliate exchange(s) your oil at arm's length, and neither paragraph (e)(1) nor (e)(2) of this section applies, MMS will establish a value for the oil based on relevant matters. After MMS establishes the value, you must report and pay royalties and any late payment interest owed based on that value.

(f)You may not deduct any costs of gathering as part of a transportation deduction or allowance.

(g)You must also comply with § 206.54. § 206.53 How do I determine value for oil that I or my affiliate do(es) not sell under an arm's-length contract?

(a)The unit value of your oil not sold under an arm's-length contract is the volume-weighted average of the gross proceeds paid or received by you or your affiliate, including your refining affiliate, for purchases or sales under arm's-length contracts.

(1)When calculating that unit value, use only purchases or sales of other like-quality oil produced from the field (or the same area if you do not have sufficient arm's-length purchases or sales of oil produced from the field) during the production month.

(2)You may adjust the gross proceeds determined under paragraph

(a)of this section for transportation costs under paragraph

(c)of this section and §§ 206.56 and 206.57 before including those proceeds in the volume-weighted average calculation.

(3)If you have purchases away from the field(s) and cannot calculate a price in the field because you cannot determine the seller's cost of transportation that would be allowed under paragraph

(c)of this section and §§ 206.56 and 206.57, you must not include those purchases in your weighted-average calculation.

(b)Before calculating the volume-weighted average, you must normalize the quality of the oil in your or your affiliate's arm's-length purchases or sales to the same gravity as that of the oil produced from the lease. Use applicable gravity adjustment tables for the field (or the same general area for like-quality oil if you do not have gravity adjustment tables for the specific field) to normalize for gravity. Example to paragraph (b): 1. Assume that a lessee, who owns a refinery and refines the oil produced from the lease at that refinery, purchases like-quality oil from other producers in the same field at arm's length for use as feedstock in its refinery. Further assume that the oil produced from the lease that is being valued under this section is Wyoming general sour with an API gravity of 23.5°. Assume that the refinery purchases at arm's length oil (all of which must be Wyoming general sour) in the following volumes of the API gravities stated at the prices and locations indicated: 10,000 bbl 24.5° $34.70/bbl Purchased in the field. 8,000 bbl 24.0° 34.00/bbl Purchased at the refinery after the third-party producer transported it to the refinery, and the lessee does not know the transportation costs. 9,000 bbl 23.0° 33.25/bbl Purchased in the field. 4,000 bbl 22.0° 33.00/bbl Purchased in the field. 2. Because the lessee does not know the costs that the seller of the 8,000 bbl incurred to transport that volume to the refinery, that volume will not be included in the volume-weighted average price calculation. Further assume that the gravity adjustment scale provides for a deduction of $0.02 per 1/10 degree API gravity below 34°. Normalized to 23.5° (the gravity of the oil being valued under this section), the prices of each of the volumes that the refiner purchased that are included in the volume-weighted average calculation are as follows: 10,000 bbl 24.5° $34.50 (1.0° difference over 23.5° = $0.20 deducted). 9,000 bbl 23.0° 33.35 (0.5° difference under 23.5° = $0.10 added). 4,000 bbl 22.0° 33.30 (1.5° difference under 23.5° = $0.30 added). 3. The volume-weighted average price is ((10,000 bbl × $34.50/bbl) + (9,000 bbl × $33.35/bbl) + (4,000 bbl × $33.30/bbl)) / 23,000 bbl = $33.84/bbl. That price will be the value of the oil produced from the lease and refined prior to an arm's-length sale, under this section.

(c)If you value oil under this section, MMS will allow a deduction, under §§ 206.56 and 206.57, for the reasonable, actual costs:

(1)That you incur to transport oil that you or your affiliate sell(s), which is included in the weighted-average price calculation, from the lease to the point where the oil is sold; and

(2)That the seller incurs to transport oil that you or your affiliate purchase(s), which is included in the weighted-average cost calculation, from the property where it is produced to the point where you or your affiliate purchase(s) it. You may not deduct any costs of gathering as part of a transportation deduction or allowance.

(d)If paragraphs

(a)and

(b)of this section result in an unreasonable value for your production as a result of circumstances regarding that production, the MMS Director may establish an alternative valuation method.

(e)You must also comply with § 206.54. § 206.54 How do I fulfill the lease provision regarding valuing production on the basis of the major portion of like-quality oil?

(a)For any Indian leases that provide that the Secretary may consider the highest price paid or offered for a major portion of production (major portion) in determining value for royalty purposes, if data are available to compute a major portion, MMS will, where practicable, compare the value determined in accordance with this section with the major portion. The value to be used in determining the value of production, for royalty purposes, will be the higher of those two values.

(b)For purposes of this paragraph, major portion means the highest price paid or offered at the time of production for the major portion of oil production from the same field. The major portion will be calculated using like-quality oil sold under arm's-length contracts from the same field (or, if necessary to obtain a reasonable sample, from the same area) for each month. All such oil production will be arrayed from highest price to lowest price (at the bottom). The major portion is that price at which 50 percent by volume plus one barrel of oil (starting from the bottom) is sold. § 206.55 What are my responsibilities to place production into marketable condition and to market the production? You must place oil in marketable condition and market the oil for the mutual benefit of yourself and the Indian lessor at no cost to the lessor, unless the lease agreement provides otherwise. If, in the process of marketing the oil or placing it in marketable condition, your gross proceeds are reduced because services are performed on your behalf that would be your responsibility, and if you valued the oil using your or your affiliate's gross proceeds (or gross proceeds received in the sale of oil received in exchange) under § 206.52, you must increase value to the extent that your gross proceeds are reduced. 6. Sections 206.58 through 206.62 are added to read as follows: § 206.58 What must I do if MMS finds that I have not properly determined value?

(a)If MMS finds that you have not properly determined value, you must:

(1)Pay the difference, if any, between the royalty payments you made and those that are due, based upon the value MMS establishes; and

(2)Pay interest on the difference computed under § 218.54 of this chapter.

(b)If you are entitled to a credit due to overpayment on Indian leases, see § 218.53 of this chapter. The credit will be without interest. § 206.59 May I ask MMS for valuation guidance? You may ask MMS for guidance in determining value. You may propose a value method to MMS. Submit all available data related to your proposal and any additional information MMS deems necessary. We will promptly review your proposal and provide you with non-binding guidance. § 206.60 What are the quantity and quality bases for royalty settlement?

(a)You must compute royalties on the quantity and quality of oil as measured at the point of settlement approved by BLM for the lease.

(b)If you determine the value of oil under §§ 206.52, 206.53, or 206.54 of this subpart based on a quantity or quality different from the quantity or quality at the point of royalty settlement approved by BLM for the lease, you must adjust the value for those quantity or quality differences.

(c)You may not deduct from the royalty volume or royalty value actual or theoretical losses incurred before the royalty settlement point unless BLM determines that any actual loss was unavoidable. § 206.61 What records must I keep and produce?

(a)On request, you must make available sales, volume, and transportation data for production you sold, purchased, or obtained from the field or area. You must make this data available to MMS, Indian representatives, or other authorized persons.

(b)You must retain all data relevant to the determination of royalty value. Document retention and recordkeeping requirements are found at §§ 207.5, 212.50, and 212.51 of this chapter. The MMS, Indian representatives, or other authorized persons may review and audit such data you possess, and MMS will direct you to use a different value if it determines that the reported value is inconsistent with the requirements of this subpart or the lease. § 206.62 Does MMS protect information I provide? The MMS will keep confidential, to the extent allowed under applicable laws and regulations, any data or other information you submit that is privileged, confidential, or otherwise exempt from disclosure. All requests for information must be submitted under the Freedom of Information Act regulations of the Department of the Interior, 43 CFR part 2. [FR Doc. E7-24318 Filed 12-14-07; 8:45 am] BILLING CODE 4310-MR-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2007-1128; FRL-8507-1] Approval and Promulgation of Implementation Plans; Nebraska; Interstate Transport of Pollution AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is revising the Nebraska State Implementation Plan

(SIP)for the purpose of approving the Nebraska Department of Environmental Quality's

(NDEQ)actions to address the “good neighbor” provisions of the Clean Air Act Section 110(a)(2)(D)(i). These provisions require each state to submit a SIP that prohibits emissions that adversely affect another State's air quality through interstate transport. NDEQ has adequately addressed the four distinct elements related to the impact of interstate transport of air pollutants. These include prohibiting significant contribution to downwind nonattainment of the National Ambient Air Quality Standards (NAAQS), interference with maintenance of the NAAQS, interference with plans in another state to prevent significant deterioration of air quality, and efforts of other states to protect visibility. The requirements for public notification were also met by NDEQ. DATES: This direct final rule will be effective February 15, 2008, without further notice, unless EPA receives adverse comment by January 16, 2008. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-OAR-2007-1128, by one of the following methods: 1. *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. 2. E-mail: *jay.michael@epa.gov* . 3. Mail: Michael Jay, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. 4. Hand Delivery or Courier: Deliver your comments to Michael Jay, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. *Instructions:* Direct your comments to Docket ID No. EPA-R07-OAR-2007-1128. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit through *http://www.regulations.gov* or e-mail information that you consider to be CBI or otherwise protected. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30 excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance. FOR FURTHER INFORMATION CONTACT: Michael Jay at

(913)551-7460, or by e-mail at *jay.michael@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions: What is being addressed in this document? What action is EPA taking? What is being addressed in this document? EPA is revising the SIP for the purpose of approving the NDEQ's actions to address the requirements of the Clean Air Act

(CAA)section 110(a)(2)(D)(i). This section requires each state to submit a SIP that prohibits emissions that could adversely affect another state. The SIP must prevent sources in the state from emitting pollutants in amounts which will:

(1)Contribute significantly to downwind nonattainment of the NAAQS,

(2)interfere with maintenance of the NAAQS,

(3)interfere with provisions to prevent significant deterioration of air quality, and

(4)interfere with efforts to protect visibility. EPA issued guidance on August 15, 2006, relating to SIP submissions to meet the requirements of section 110(a)(2)(D)(i). As discussed below, Nebraska's analysis of its SIP with respect to the statutory requirements is consistent with the guidance. The NDEQ has addressed the first two of these elements by submitting a technical demonstration supporting the conclusion that emissions from Nebraska do not significantly contribute to downwind nonattainment or interfere with maintenance of the NAAQS in another state. For PM 2.5 , the state has relied upon existing EPA Clean Air Interstate Rule

(CAIR)modeling that determined impacts from the state do not meet or exceed the 0.2 μg/m 3 average annual threshold that EPA established to determine significant impact on another state in the projection year 2010. The state indicated that in EPA's CAIR modeling, Nebraska's maximum downwind contribution to average annual nonattainment was 0.07 μg/m 3 (70 FR 25247). The state has relied on this result to demonstrate that emissions from the state do not contribute significantly to downwind nonattainment of the annual PM 2.5 standard. For 8-hour ozone, the state was unable to rely on EPA CAIR modeling to determine the state's impact on projected 8-hour ozone nonattainment in downwind states. The EPA CAIR 8-hour ozone modeling domain did not include the entire state. As a result, impacts from the state were not provided in the analysis. Therefore, the state has provided additional analysis, as part of the technical demonstration, to support a determination that the state does not contribute significantly to projected downwind 8-hour ozone nonattainment and maintenance in the year 2010. The State's additional analysis includes a modeling demonstration that supports this conclusion. The modeling demonstration relies on the source apportionment technique, consistent with the technical analysis in support of CAIR, to evaluate the State's contribution to nearby downwind metropolitan statistical areas

(MSAs)and nearby counties. These areas include Chicago and additional counties in Wisconsin along Lake Michigan, St. Louis, Kansas City, and Denver. The determination of significance in the State's analysis was based upon three contribution factors as determined in CAIR: • The magnitude of the contribution; • The frequency of the contribution; and • The relative amount of contribution. The source apportionment modeling analysis yielded consistent results showing Nebraska does not contribute significantly to downwind 8-hour ozone nonattainment in any of the receptor counties analyzed. For example, Nebraska's contribution to total nonattainment in Chicago is 0.36%, with a contribution average of 0.3 ppb, and a 1.74% relative contribution during exceedance periods. By EPA's own metrics, these impacts are considered to be small and infrequent. Moreover, not a single metric of the three contribution factors was found to be above the significance threshold established by EPA for any of the downwind counties. (See Technical Support Document for the Final Clean Air Interstate Rule—Air Quality Modeling). Based on this information provided by the State, EPA believes the State has sufficiently demonstrated that emissions from the State do not significantly contribute to downwind nonattainment or interfere with maintenance of the NAAQs. Additional supporting information on Nebraska's modeling demonstration can be found in its technical support document provided in the docket. The third element NDEQ addressed was prevention of significant deterioration (PSD). For 8-hour ozone, the state has met the obligation by confirming that major sources in the state are currently subject to PSD programs that implement the 8-hour ozone standard. For PM 2.5 , the state has confirmed that the state's PSD program is being implemented in accordance with EPA's interim guidance calling for the use of PM 10 as a surrogate for PM 2.5 for the purposes of PSD review. Once PM 2.5 guidance is finalized by EPA, NDEQ commits to transitioning from use of the interim PM 2.5 guidance to the final PM 2.5 implementation guidance after approval of the PM 2.5 SIP revision. EPA proposed regulations to establish this guidance on September 21, 2007 (72 FR 54112). It should be noted that Nebraska is currently designated with attainment for both the 8-hour ozone and PM 2.5 National Ambient Air Quality Standards. At this time, it is not possible for NDEQ to accurately determine whether there is interference with measures in another state's SIP designed to protect visibility, which is the fourth element that was addressed. Technical projects relating to visibility degradation are under development. Nebraska will be in a more advantageous position to address the visibility projection requirements once the initial regional haze SIP has been developed. A public hearing with regard to this action was held by the state. No comments were received. With this action, the non-regulatory text in 40 CFR 52.1420(e) is revised to reflect that NDEQ addressed the elements of the CAA section 110(a)(2)(D)(i) submittal. What action is EPA taking? EPA is approving this revision submitted by Nebraska and is revising 40 CFR 52.1420(e) to reflect that the NDEQ has adequately addressed the required elements of the CAA section 110(a)(2)(D)(i) SIP. Please note that if EPA receives adverse comments on part of this rule, and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This action also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This action also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing state submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 15, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: November 29, 2007. William Rice, Acting Regional Administrator, Region 7. Chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart CC—Nebraska 2. In § 52.1420(e) the table is amended by adding an entry in numerical order to read as follows: § 52.1420 Identification of Plan.

(e)* * * EPA-Approved Nebraska Nonregulatory Provisions Name of nonregulatory SIP provision Applicable geographic or nonattainment area State submittal date EPA approval date Explanation * * * * * * *

(23)CAA 110(a)(2)(D)(i) SIP—Interstate Transport Statewide 5/18/07 12/17/07 [insert FR page number where the document begins] [FR Doc. E7-24231 Filed 12-14-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 385 and 395 [Docket No. FMCSA-2004-19608] RIN-2126-AB14 Hours of Service of Drivers AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Interim final rule (IFR); request for comments. SUMMARY: FMCSA amends the Federal Motor Carrier Safety Regulations effective December 27 to allow commercial motor vehicle

(CMV)drivers up to 11 hours of driving time within a 14-hour, non-extendable window from the start of the workday, following 10 consecutive hours off duty (11-hour limit). This interim rule also allows motor carriers and drivers to restart calculations of the weekly on-duty time limits after the driver has at least 34 consecutive hours off duty (34-hour restart). An IFR is necessary to prevent disruption to enforcement and compliance with the hours-of-service

(HOS)rules when the stay expires, as well as possible effects on the timely delivery of essential goods and services. This IFR will ensure that a familiar and uniform set of national rules governs motor carrier transportation, while FMCSA gathers public comments on all aspects of this interim final rule, conducts peer review of our analysis, and considers the appropriate final rule that addresses the issues identified by the Court. FMCSA is fully committed to issuing a final rule in 2008. DATES: This rule is effective December 27, 2007. Comments must be received on or before February 15, 2008. ADDRESSES: You may submit comments identified by Federal Docket Management System Number FMCSA-2004-19608 by any of the following methods: • *Web Site:* *http://www.regulations.gov* . Follow the instructions for submitting comments on the Federal electronic docket site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility, U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. • *Hand Delivery:* Ground Floor, Room W12-140, DOT Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through Friday, except Federal holidays. *Instructions:* All submissions must include the Agency name and docket number or Regulatory Identification Number

(RIN)for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading below. Note that all comments received will be posted without change to *http://www.regulations.gov* , including any personal information provided. Please see the Privacy Act heading below. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.regulations.gov* at any time or to the ground floor, room W12-140, DOT Building, New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through Friday, except Federal holidays. *Privacy Act:* Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78) or you may visit *http://docketsinfo.dot.gov* . *Public participation:* The *http://www.regulations.gov* Web site is generally available 24 hours each day, 365 days each year. You can get electronic submission and retrieval help and guidelines under the “help” section of the *http://www.regulations.gov* Web site and also at the DOT's *http://docketsinfo.dot.gov* Web site. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments online. Comments received after the comment closing date will be included in the docket, and we will consider late comments to the extent practicable. FMCSA may, however, issue a final rule at any time after the close of the comment period. FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Driver and Carrier Operations; or *MCPSD@dot.gov* . Telephone

(202)366-4325. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Table of Contents A. Legal Basis for the Rulemaking B. Why This Interim Final Rule Is Necessary C. Background D. FMCSA's Response to the Court's Decision E. Evaluation of Issues Concerning the Regulatory Impact Analysis F. Evaluation of Recent Safety and Operational Data Under the 11-Hour and 34-Hour Rules G. Regulatory Analyses and Notices A. Legal Basis for the Rulemaking This rule is based on the authority of the Motor Carrier Act of 1935 and the Motor Carrier Safety Act of 1984. The Motor Carrier Act of 1935 provides that “The Secretary of Transportation may prescribe requirements for

(1)qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and,

(2)qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation” [49 U.S.C. 31502(b)]. The hours-of-service

(HOS)regulations adopted in this interim rule pertain directly to the “maximum hours of service of employees of * * * a motor carrier [49 U.S.C. 31502(b)(1)] and the “maximum hours of service of employees of * * * a motor private carrier” [49 U.S.C. 31502(b)(2)]. The adoption and enforcement of such rules was specifically authorized by the Motor Carrier Act of 1935. This rule rests squarely on that authority. The Motor Carrier Safety Act of 1984 provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary of Transportation to “prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles.” Although this authority is very broad, the Act also includes specific requirements: “At a minimum, the regulations shall ensure that

(1)commercial motor vehicles are maintained, equipped, loaded, and operated safely;

(2)the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely;

(3)the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely; and

(4)the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators” [49 U.S.C. 31136(a)]. This rule is based on the authority of the 1984 Act and addresses the specific mandates of 49 U.S.C. 31136(a)(2), (3), and (4). Section 31136(a)(1) of 49 U.S.C. deals almost entirely with the mechanical condition of commercial motor vehicles (CMVs), a subject not included in this rulemaking. The phrase “operated safely” in paragraph (a)(1) refers primarily to the safe operation of the vehicle's equipment, but to the extent it encompasses safe driving, this rule also addresses that mandate. Before prescribing any regulations, the Federal Motor Carrier Safety Administration (FMCSA) must also consider their “costs and benefits” [49 U.S.C. 31136(c)(2)(A) and 31502(d)]. Those factors are also discussed in this interim rule. B. Why This Interim Final Rule Is Necessary After the United States Court of Appeals for the District of Columbia Circuit (the Court or D.C. Circuit) decision in *Owner-Operator Independent Drivers Association, Inc.* v. *Federal Motor Carrier Safety Administration* , 494 F.3d 188 (D.C. Cir. 2007), FMCSA carefully analyzed the current situation to determine the appropriate action to take in response to the decision. It is important to note that the D.C. Circuit found fault with various procedures related to the Agency's adoption of the 11-hour limit and the 34-hour restart, but not with their substance. This analysis included a review of the safety data concerning motor carrier operations, particularly with respect to fatigue-related fatal crashes. The discussion below further explains the analysis and reasoning that has led FMCSA to determine this IFR is necessary to ensure that a familiar and uniform set of national rules governs motor carrier transportation, while FMCSA gathers public comments and information and considers the appropriate final rule, which FMSCA is fully committed to issuing in 2008. We found that the 2005 rule has maintained highway safety outcomes while enhancing operational flexibility for the motor carrier industry. Every alternative, including immediate restoration of a 10-hour driving limit with no 34-hour restart, entails a risk of disrupting that achievement. As mentioned above, in the years since 2003, when the 11-hour driving limit and 34-hour restart provision were adopted (along with the critically important 10-hour minimum daily off-duty period), there has been no upward trend in the number of fatal crashes as a whole or fatigue-related fatal crashes in particular. In fact, the 2006 fatality rate per 100 million vehicle miles traveled

(VMT)by combination unit trucks (mostly standard tractor-trailer combinations) is the lowest since the Department of Transportation began keeping such statistics over 30 years ago. The percentage of large truck fatal crashes where the driver was coded as fatigued has remained essentially the same since 2003, despite small fluctuations. Similarly, the percentage of large-truck fatalities in the 11 th hour of driving where the driver was coded as fatigued has remained below the average of the years 1991-2002 since 2003. The D.C. Circuit found fault with various procedures related to the Agency's adoption of the 11-hour limit and the 34-hour restart, but not with their substance. These provisions are part of an effective safety rule and must be preserved while the Department addresses the issues identified by the Court. We then examined the alternatives available to the Agency in light of the Court's decision and our statutory responsibilities. We believe, based on reading the Court's decision in conjunction with the current text of the regulation, that there is strong likelihood of confusion regarding what HOS rules will be in effect on December 27, 2007, when the Court's mandate issues. For example, drivers and motor carriers could read the Court's decision to vacate certain provisions of the 2005 HOS rule in light of 49 CFR 395.0 and conclude that there is no daily driving limit in effect. Alternatively, issuance of the Court's mandate could be viewed as an immediate restoration of the former 10-hour driving limit with no 34-hour restart. Regardless of how the Court's action is interpreted, we are certain that issuance of the mandate will lead to sufficient confusion and uncertainty concerning what HOS rules govern, and result in poor compliance by the motor carrier industry, as well as reduced and inconsistent enforcement by Federal and State officials. FMCSA provides grants to States that agree to adopt and enforce State laws or regulations compatible with the Federal safety regulations. Some adopt Federal rules by reference, while others require the legislature to enact a special measure adopting the Federal rule; many allow an administrative agency to adopt a rule, but only after publishing a notice and giving the public a chance to comment. Because of wide variations in adoption procedures and schedules, States have three years to adopt such regulations. In order to respond adequately to the Court's procedural concerns we believe that, to respond to the Court's decision, we need to issue an IFR, with an opportunity for public comment, to ensure there will not be a patchwork of laws across the nation—with some States enforcing a 10-hour limit while others enforce no limit, and still others retained the 2005 limits—without a clear general understanding of what Federal regulation is in place . Undoubtedly, this would create confusion, inconsistency, and have an unpredictable impact on safety, since law enforcement may reduce its enforcement as a result of varying State laws. To remain legal, each driver would need to know the HOS limits in each State where he or she operated; this is simply impractical. Drivers could not be sure how their actions in one State would be treated in a State with a different HOS regime; officers might reduce their enforcement efforts to avoid the perception of unfairness. Uncertainty is the enemy of enforcement and compliance; it can only impair highway safety. This IFR will ensure that a familiar, uniform set of national rules govern motor carrier transportation, while FMCSA gathers additional public comments on all aspects of this interim final rule, conducts peer review of our analysis, and considers an appropriate final rule that addresses the issues identified by the Court. FMCSA is fully committed to issuing a final rule in 2008. Additionally, an immediate restoration of a 10-hour driving limit with no restart provision or entirely eliminating the daily driving limit would cause disruption and transition costs. The affidavits of motor carrier officials filed by American Trucking Associations, Inc.

(ATA)in support of its stay motion in the D.C. Circuit (and described in more detail below) bear witness to the recruitment, training, operational, and equipment costs motor carriers would face, amounting in the aggregate to scores and perhaps hundreds of millions of dollars. The costs are not merely transitional, however. Our failure to issue an IFR could inflict a loss of scheduling flexibility on the industry and ultimately raise the cost of highway transportation. There could also be adverse safety implications, as new and inexperienced drivers are hired to handle loads that could not consistently be delivered in the absence of the provisions vacated by the Court. New drivers are less safe than veteran operators and would inevitably become involved in crashes that a more experienced driver population would avoid. The costs of added crashes are very substantial. The IFR avoids all of these problems. The IFR will also allow FMCSA and commenters to the docket additional time to evaluate more recent data and determine the appropriate final hours of service rule while avoiding shifting the requirements back and forth. Although our analysis indicates these policies are the right ones to adopt on an interim basis, FMCSA specifically requests comment on all the conclusions reached in this preamble and Regulatory Impact Analysis (RIA). FMCSA is also submitting its analysis to peer review. FMCSA is committed to issuing in 2008 a final rule fully responding to all comments to this IFR. For example, with respect to the 11-hour driving limit and the 34-hour restart, the more recent data continue to support them. Although the D.C. Circuit raised concerns with the Agency's treatment of the Trucks Involved in Fatal Accidents

(TIFA)data for crashes that occurred beyond the 11th hour in the 2005 rule, the Agency has employed a more sophisticated analysis discussed below that shows a lower risk from driving in the 11th hour than under FMCSA's earlier method. The modeling of time on task

(TOT)developed for the 2005 rule was complex and comprehensive and remains the best available study of its kind. The D.C. Circuit faulted the Agency for failing to make this model available for notice and comment; this IFR corrects that oversight, and the RIA provides a more detailed explanation of the Agency's methods. Analysis of further data collected for the Virginia Tech Transportation Institute

(VTTI)operational study supports the preliminary results described in the 2005 rule: There is no increase in “critical incidents” (a surrogate for crash risk) in the 11th hour of driving. FMCSA's very recent survey data show that, while the 11th hour and the 34-hour restart provisions are being used more often than in 2005, virtually no one attempts to use every minute of driving or on-duty time theoretically allowed by the regulations, just as the Agency predicted in the 2005 rule. Furthermore, the analysis of fatigue-related crashes by day of the week, described in detail later in the preamble, also supports the belief that the 34-hour restart is not resulting in increases in fatigue-related fatal crashes. FMCSA is not required to demonstrate that constant, maximum utilization of the HOS rules is as safe as the pre-2003 rules, when operational constraints (heavy traffic, shortages of parking and truck driver sleeping facilities, waiting time at terminals, eating and refueling, etc.) make it impossible to achieve that degree of utilization except for brief periods. The 2005 rule analyzed the safety implications of the HOS rules in the real world, and all of the safety data for subsequent years have borne out the Agency's conclusion that the rule skillfully and successfully combines safety with operational benefits. These are the outcomes this IFR seeks to maintain. C. Background The HOS rules limit the number of hours a driver may operate a commercial motor vehicle

(CMV)during each workday, the length of the workday within which driving may occur, the minimum off-duty period before starting the next workday, and the cumulative number of on-duty hours during the work week after which a CMV may not be driven. The rules also allow for the use of a sleeper berth to accumulate the equivalent of 10 consecutive hours off duty. Prior to April 2003, FMCSA and its predecessor agencies limited driving time to 10 hours within a 15-hour, extendable workday or window. In practice, the 15-hour window could be substantially longer than 15 hours because miscellaneous off-duty periods were not counted as part of the 15 hours. Drivers were required to have at least 8 consecutive hours off duty prior to the beginning of a new 15-hour duty window. Drivers using a sleeper berth could split their time in the sleeper berth into two separate periods to accumulate the equivalent of 8 consecutive hours off duty provided neither period was less than 2 hours. Drivers working for a carrier that operated 6 days each week could not drive CMVs after 60 hours on duty in a 7 consecutive-day period; drivers working for a carrier that operated CMVs 7 days each week and which chose to operate under an alternate work schedule to the 60-hour rule, could not drive CMVs after 70 hours on duty in an 8 consecutive-day period. In practice, drivers on certain schedules could “run out” of available on-duty time within a few days and be forced to go off duty for approximately 3 full days before being allowed to drive again, regardless of whether the driver may have fully recovered from the work demands in a shorter period of time. In April 2003, FMCSA published a final rule that changed the requirements for drivers of property-carrying CMVs. (68 FR 22456, April 28, 2003) (“2003 Rule”) Driving was limited to 11 hours within a 14-hour, non-extendable window after coming on duty, following 10 consecutive hours off duty (known as the 11-hour limit). Although the 60- and 70-hour rules were unchanged, drivers could restart the calculation during any weekly time period after they took 34 consecutive hours off duty (known as the 34-hour restart provision). Drivers using sleeper berths were allowed to continue to split the mandatory off duty period, with the minimum period in the sleeper berth being 2 hours. (Drivers of passenger-carrying CMVs are still required to operate under the pre-2003 rules.) The 2003 rule contained several provisions that, when taken together, improved the opportunity for drivers to obtain restorative sleep, thus decreasing the likelihood of driver fatigue. For example, among the most significant provisions, the rule established a 14-hour, non-extendable window within which a driver could drive up to 11 hours, following a 10 consecutive hour off-duty period. This provision moved drivers toward a work-rest schedule that more closely matched the natural circadian cycle of 24 hours and gave drivers the opportunity to obtain the 7 to 8 hours of uninterrupted sleep per day that most adults need. The 34-hour restart provision also gave drivers the opportunity for two 8-hour sleep periods, which research has shown can overcome cumulative fatigue associated with sleep deprivation. Because the duty period within which an operator could drive was more limited than under the pre-2003 rule and because the rest period was long enough to provide an opportunity for 7 to 8 hours of uninterrupted sleep time, FMCSA concluded it was safe and reasonable to extend the number of hours an operator could drive within the 14-hour window from 10 hours to 11 hours. The 34-hour restart provision also gave drivers and carriers operational flexibility and an improved quality of life, particularly for long haul operations, where the 7- and 8-day limits may limit flexibility by forcing drivers to go off duty for periods longer than necessary to fully recover from a typical work week. FMCSA concluded that the 14-hour rule and the mandatory 10-hour off-duty period improved safety while providing operational flexibility that the 11 hours of driving time and the 34-hour restart provide. In April 2004, the Court overturned the 2003 rule on the grounds that FMCSA did not address the issue of driver health, as required by 49 U.S.C. 31136(a)(4). ( *Public Citizen* v. *FMCSA,* 374 F.3d 1209, D.C. Cir. 2004) The Court also indicated that it had concerns about the rationale for other provisions in the rule. However, to avoid industry disruption and burden on the States, Congress enacted section 7(f) of the Surface Transportation Extension Act of 2004. This section provided that the 2003 rule would remain in effect until a new final rule addressed the Court's issues or until September 30, 2005, whichever occurred first. After reviewing the decision and considering the concerns raised by the Court, FMCSA decided to re-propose the rule as originally published in 2003 and to seek public comments. (70 FR 3339, Jan. 24, 2005) On August 25, 2005, FMCSA published a final HOS rule that retained most of the provisions of the 2003 rule. (70 FR 49978, Aug. 25, 2005) (“2005 Rule”) The Agency significantly strengthened the 2003 rule by requiring drivers using sleeper berths to spend at least 8 but less than 10 consecutive hours in the sleeper berth and take an additional 2 hours either off duty or in the sleeper berth. The new requirement provided drivers the opportunity to obtain 7 to 8 hours of uninterrupted sleep each day. Also, the Agency required that the shorter sleeper berth period be counted against the 14-hour on-duty limit decreasing the extent to which the workday could be extended. The 2005 rule also provided relief to some short-haul operations using lighter trucks. The purpose of the HOS rules is to reduce the likelihood of driver fatigue and of fatigue-related crashes. Although the rules that existed before 2004 (the effective year of the 2003 rule) allowed less daily driving time than the 2003 and 2005 rules (10 hours versus 11 hours), the driving could occur 15 hours or more after the driver started working without any opportunity for intervening restorative rest or sleep, and followed a shorter minimum rest period (8 hours versus 10 hours). The change to a 14-hour non-extendable window and a 10-hour rather than an 8-hour rest period was intended to limit the period in which a driver could operate a CMV and provide the driver with a work schedule that was consistent with the normal 24-hour biological clock. The 2005 rule did not limit the number of hours a driver can perform work other than driving, but if a driver worked after the 14th hour, he or she must take at least 10 consecutive hours off duty after finishing work before again operating a CMV. The change to a 10-hour off-duty requirement also recognized that drivers may do other things in their off-duty time besides sleeping; the 10-hour break gives them an opportunity to obtain the 7 to 8 hours of sleep most people need to be rested and to carry out other day-to-day personal activities. The 34-hour restart provision provides drivers with an opportunity to obtain two 8-hour rest periods, which research indicates can overcome cumulative sleep deprivation. Similarly, the 2005 change to the sleeper berth provisions eliminated the practice of splitting time in the sleeper berth into increments that were too short to provide an opportunity for 7 to 8 consecutive hours of sleep. FMCSA addressed the issue of driver health in the 2005 rule, as required by 49 U.S.C. 31136(a)(4). In preparing the 2005 rule, FMCSA researched both U.S. and international health and fatigue studies and consulted with Federal safety and health experts. In addition, FMCSA asked the Transportation Research Board

(TRB)of the National Academies to contract with a research team of experts in the field of health and fatigue to prepare a summary of relevant literature through the TRB Commercial Truck and Bus Safety Synthesis Program. The literature review was conducted using two teams of health and transportation experts to identify and summarize the available research literature relevant to the 2005 rule. This review included research findings that discussed the relationship between the hours a commercial motor vehicle driver works, drives, and the structure of the work schedule (on-duty/off-duty cycles, time-on-task, especially time in continuous driving, sleep time, etc.), and the impact on his/her health. The research studies cited in this interim rule are included in the List of References in the 2005 final rule (70 FR 49978, at 50067). Copies or abstracts are in the docket referenced at the beginning of this notice. FMCSA re-affirms its findings on driver health outlined in the 2005 final rule. For a complete discussion of the health of drivers operating under the HOS rules, see the August 25, 2005 final rule (70 FR 49978, at 49982). Public Citizen and others challenged the August 2005 rule on several grounds, as did the Owner-Operator Independent Drivers Association (OOIDA). On July 24, 2007, the Court rejected OOIDA's arguments, which focused on the sleeper berth provision, but accepted part of Public Citizen's arguments and vacated the 11-hour driving time and 34-hour restart provisions ( *Owner-Operator Independent Drivers Association, Inc.* v. *Federal Motor Carrier Safety Administration,* 494 F.3d 188 (D.C. Cir. 2007)). Public Citizen challenged the provisions on four grounds. First, Public Citizen contended that FMCSA's actions were inconsistent with the Administrative Procedure Act

(APA)requirement for notice and comment rulemaking because the Agency did not disclose in time for comment the methodology of a model central to the Agency's justification for the rule. Second, when the methodology was disclosed, FMCSA did not provide an explanation for some of its critical elements, thus rendering the rule arbitrary and capricious. Third, FMCSA's treatment of a number of other safety considerations was also arbitrary and capricious. Finally, Public Citizen argued that the rule failed to protect driver health. The Court vacated the rule provisions based on the first two arguments and did not address the last two. The Court concluded that FMCSA did not satisfy the APA's requirements because the Agency failed to provide an opportunity for public comment on the methodology of the Agency's operator-fatigue model, which FMCSA used to assess the costs and benefits of alternative changes to the HOS rules. In particular, the Court found the Agency had not adequately disclosed and made available for review the modifications it made to the 2003 operator-fatigue model to account for time-on-task effects in the 2005 analysis. The Court concluded that the methodology the Agency used changed and did not remain constant from 2003 to 2005 because the time-on-task element in the model was new and constituted the Agency's response to a defect in its previous methodology. The Court listed several elements of the process by which the Agency calculated the impact of time-on-task that it held could not have been anticipated and that were not disclosed in time to allow for public comment. The Court also found, turning to Public Citizen's second argument, that FMCSA did not provide an adequate explanation for certain critical elements in the model's methodology. As its basis for vacating the increase in the daily driving limit from 10 to 11 hours, the Court found arbitrary and capricious what it described as FMCSA's “complete lack of explanation for an important step in the Agency's analysis,” i.e., the manner in which it had plotted crash risk as a function of time-on-task/hours of driving. The Court also found that FMCSA failed to provide an explanation for its method for calculating risk relative to average driving hours in determining its estimate of the increased risk of driving in the 11th hour. As its basis for vacating the 34-hour restart provision, the Court found that FMCSA also provided no explanation for the failure of its operator-fatigue model to account for cumulative fatigue due to the increased weekly driving and working hours permitted by the 34-hour restart provision. Based on these two findings, the Court found it unnecessary to reach Public Citizen's other two arguments. In addition, the Court rejected three additional challenges to the 2005 Rule raised by OOIDA. In an order filed on September 28, 2007, the Court granted a 90-day stay of the mandate. The Court directed that issuance of the mandate be withheld until December 27, 2007. D. FMCSA's Response to the Court's Decision This rulemaking addresses the issues that were identified by the Court in overturning two provisions of the 2005 rule. It seeks comment on the methodology of the model central to the justification for this IFR. It is based on the Agency's evaluation of new safety and operational data, additional analysis and modeling of the relationship between hours of driving and fatigue-related large truck crashes, discussion of the concept of cumulative fatigue in the context of driving activity, and the collection and evaluation of new data on the benefits and costs of the 11-hour driving limit and the 34-hour restart provisions. As an additional step to ensure the soundness of the Agency's analytical methods, we are subjecting our analysis to peer review. By re-adopting the 11-hour limit and the 34-hour restart, the Agency's intent is to allow motor carriers and drivers to combine work-rest schedules that follow the optimal 24-hour circadian cycle (10 hours off duty and 14 hours on duty) while maintaining highway safety with operational flexibility. By adopting these rules as interim, the Agency is seeking to avoid significant and costly disruption of existing industry compliance and State enforcement practices while ensuring that the actions and underlying safety analysis are available for comment from all interested parties before issuing a final rule. In the meantime, this will ensure that an uninterrupted safety regime remains in place with State enforcement laws, policies, and personnel. The 2005 rule includes a provision stating that “[a]ny regulations on hours of service of drivers in effect before April 28, 2003, which were amended or replaced by the final rule adopted on April 28, 2003 [69 FR 22456] are rescinded and not in effect” (§ 395.0). Because the D.C. Circuit did not address this provision, either in *OOIDA* v. *FMCSA* or in its response to FMCSA's response in support of ATA's motion for a stay, the Agency must now adopt an IFR to forestall the significant confusion that would otherwise occur in the motor carrier industry, interfering with efforts to restore an orderly HOS regime. The two provisions being adopted in this rule, on an interim basis, are part of a broader, critical set of five HOS provisions included in this IFR. The other three critical provisions of the 2005 rule are:

(1)The increase in the minimum off-duty period from 8 consecutive hours to 10 consecutive hours to ensure drivers have an opportunity to obtain up to 8 hours of sleep;

(2)the establishment of a 14-hour, non-extendable window from the start of the workday within which all driving must be completed; and

(3)the modification of the sleeper-berth rule to require an 8-hour sleeper berth period, thereby ensuring that drivers have an opportunity to obtain up to 8 hours of uninterrupted sleep. These provisions function along with the 11-hour limit and the 34-hour restart provision to protect against degradation of driver's cognitive or psychomotor skills due to fatigue. Section E describes additional analysis conducted since 2005 that validates the modeling relied upon by the Agency to examine the relationship between the risk of a fatigue-related large truck crash during the 11th hour of driving. It also addresses cumulative fatigue as it relates to the driving and restart provisions. In its analysis of the 34-hour restart provisions being adopted in this IFR, the Agency re-examined the research pertaining to long work hours and sought additional research completed after the 2005 rule. The Agency found no new research that addressed the relationship of long work hours to motor-vehicle driving safety. Safety data collected and analyzed since the 2003 HOS rule became effective, described below in Section F, address the impact of the 11-hour driving limit and the 34-hour restart provisions and validate the Agency's argument that safety has been maintained under these provisions. The Agency has collected new operational data, described in Section F, that support its prior conclusions with regard to the cost-benefit analysis of the 11-hour driving limit and the 34-hour restart provision. These data also suggest that reverting to the pre-2003 rule 10-hour driving limit and eliminating the 34-hour restart provisions would be significantly disruptive to drivers, carriers, and to the States where most of the enforcement of HOS violations occur. It would also be disruptive to the safe and efficient movement of freight and cause delays in the delivery of essential goods and services to the American people. E. Evaluation of Issues Concerning the Regulatory Impact Analysis The D.C. Circuit's 2007 decision held that FMCSA failed to provide an adequate opportunity for review of certain aspects of the RIA. The Agency is providing a 60-day opportunity for review and comment on the RIA supporting this interim rule and the interim rule itself. Since the public has submitted comment on many aspects of this analysis in previous rulemakings, and given the Agency's desire to issue a final rule in a timely fashion, FMCSA believes 60 days is an adequate amount of time to afford the public opportunity for comment. The Court also held that the Agency had not provided an adequate explanation for two critical elements of the model in the RIA accompanying the 2005 rule:

(1)The analysis of time-on-task; and

(2)the analysis of how the 34-hour restart affected cumulative fatigue. This section addresses these two topics. First, in support of this interim rule the Agency has reevaluated how the effects of extended driving hours (i.e., time-on-task or TOT) were taken into account in its cost-benefit model. This section summarizes how, in the RIA accompanying this rule, the Agency has responded to questions about the TOT analysis raised by Public Citizen and the Court in its July 2007 opinion. FMCSA's careful analysis uncovered several necessary revisions, but the net effects of these revisions are minor. Second, this section addresses the issue of cumulative fatigue and describes the Agency's conclusion, based on recent crash data and operational data, that there is no evidence that the 34-hour restart provision has led to harmful cumulative fatigue. Original Analysis The goal of the Agency's 2005 analysis was to assess the change in fatigue-related crash risks that would result from eliminating driving in an 11th hour of driving. Assuming motor carriers will still deliver the same volume of freight even without the 11th hour, FMCSA concluded that driving that could not be completed in the 11th hour would be completed by additional drivers in somewhat shorter trips. Crashes, including some that are fatigue-related, will occur in those shorter trips. The 2005 RIA calculated the average fatigue-related crash rate in trips that allow the 11th hour compared to the rate in the replacement trips that do not. A TOT effect was added to the fatigue model by establishing a function relating TOT and the percentage of crashes attributable to fatigue, relative to typical fatigue levels, and using that relative risk to scale up the fatigue crash risk for hours with above-average fatigue. The model was then calibrated by scaling the results to bring the average fatigue crash risk in the baseline in line with the rate projected for long-haul driving in earlier modeling of the impacts of the 2003 rule. To find the relationship between TOT and fatigue, FMCSA used Trucks Involved in Fatal Accidents

(TIFA)data from 1991 through 2002 (A general discussion of the TIFA data set can be found later in this IFR under section F's subheading “Trucks Involved in Fatal Accidents

(TIFA)Data”). For each TOT level from the first hour through the 12th, FMCSA computed the average percentage of crashes caused by fatigue. Few data points were available for TOT levels beyond the 12th hour, not least because it was illegal, in most cases, to drive past 10 hours during this time period. To use the limited data on fatigue percentages at high TOT levels without introducing too much variability, FMCSA pooled the data for all crashes beyond 12 hours: we constructed an observation that assigned the average percent fatigue related crashes to the average TOT for all crashes beyond 12 hours, and used this as an additional data point in the analysis. Specifically, the average percentage of fatigue-related crashes for these crashes was 24.75 percent; and the average TOT was 16.7 hours. A regression analysis included this combined data point and showed a clear pattern of increasing fatigue-crash percentages at high TOT levels, as shown in Exhibit 1. A cubic function fit the data well, including the final, combined point. From Exhibit 1, it appears that the data point for the 11th hour by itself lies well above the general pattern of most of the data. In the years from 1991 through 2002 during which the data were collected, driving beyond 10 hours violated the HOS rules. There were two exceptions when driving beyond 10 hours would not have violated the HOS rules. First, driving beyond 10 hours would not have violated the HOS rules when the driver was driving in intrastate commerce under State HOS rules. Second, driving beyond 10 hours would not have violated the HOS rules when the driver was driving under the Federal adverse driving conditions 1 exception, 49 CFR 395.1(b)(1), which by its very nature suggests a more stressful work environment at the time of the 11th hour of driving. Thus, the only drivers represented were those who were willing to violate the rules or who were exempt from the rule and may, therefore, have been unusually fatigued for reasons other than TOT. 1 “Adverse driving conditions” means snow, sleet, fog, other adverse weather conditions, a highway covered with snow or ice, or unusual road and traffic conditions, none of which were apparent on the basis of information known to the person dispatching the run at the time it was begun. As shown in exhibit 1, the model's predicted relative risk at the 11th hour is lower than the raw percent of fatigue related crashes at the 11th hour. This is not surprising, however, given the standard errors of the estimates at the longer driving times. There were 94 crashes in the 11th hour in the data set; even if the predicted value of about 7 percent fatigue is correct, a random selection of 94 crashes would frequently show 9 or more due to fatigue. ER17DE07.007 Using the cubic function, FMCSA calculated the probability that a crash at a given TOT would be coded as fatigue-related. In order to calculate the impacts of allowing the 11th hour of driving, FMCSA then had to take these results and apply them to a model of what would happen to driving patterns with and without the 11th hour provision. FMCSA used these modeling results to calculate a TOT “adjustment factor” to calculate a total risk of fatigue-related large truck crashes, incorporating both TOT and non-TOT fatigue risk factors. In order to scale the effects, in the modeling, each fatigue probability for TOT levels of 8 hours or more was divided by a measure of the average fatigue probability across the first 11 hours, as seen in the TIFA data. This was simply to prepare the TOT results for use in the overall model, and is explained in more detail in the RIA. If properly performed, this rescaling should not affect the results of the analysis of each option, since the relative relationship of fatigue-related risk to driving hours is unaffected by the scaling factor. In the 2003 model, for TOT less than 8 hours, no incremental fatigue risk was calculated on the grounds that for these hours fatigue was at or below average. As discussed later on in this preamble, the lack of adjustment for the hours before 8 biased the results, and needed to be addressed in revising the analysis. This approach created fatigue adjustment factors. For each hour of driving that was modeled, the predicted fatigue crash levels in the absence of a TOT effect were multiplied by these factors. This analysis was used to calculate the reduction in crash risks resulting from eliminating the 11th hour. In a model run that allowed the 11th hour, some hours of driving would fall into the 11th hour; their predicted non-TOT-adjusted fatigue crash likelihoods would be multiplied by a factor greater than 1.0, based on the modeling results, which would increase the values to reflect the higher fatigue levels expected at high TOT levels. In runs that eliminated the 11th hour, the predicted non-TOT fatigue crash risks would be multiplied by generally smaller TOT multipliers, and so the predicted average crash risk would be lower than in the run that allowed the 11th hour. Using this method, and calibrating the model so that the baseline run would show 7 percent fatigue-related crashes, FMCSA found that eliminating the 11th hour would reduce crash-related damages by about 0.3 percent, worth about $60 million annually. Challenges to the Analysis In the 2007 challenge by Public Citizen, the original analysis was disputed in several ways. First, petitioners questioned the use of a function that combined the data points beyond 12 hours and treated them as though they fell near the 17th, rather than at some other point on the graph (e.g., at the 13th hour). Second, the reason for dividing the predicted fatigue levels from the TOT function by the average fatigue-related crash rate was questioned. Third, the value used to adjust the total crash risk to the fatigue-related crash risk was criticized as being based on TOT hours 1-11, rather than the hours 1-10 that would be allowed in the alternative that eliminated the 11th hour. FMCSA's responses to these challenges, and the revisions to the analysis that were made as a consequence, are explained here. *Statistical Approach.* FMCSA's basic approach of fitting a function to the entire range of TOT hours rather than relying on the percentage of crashes at a particular hour is a widely accepted statistical method. Relying on the percentage of fatigue crashes for individual TOT hours would subject the analysis to great uncertainty, because random factors can cause large changes in measured percentages of small numbers. The data used in the 2005 analysis, for example, shows that in the 13th hour, 25 percent of fatal crashes are fatigue-related, while the 14th hour shows 0 percent fatigue crashes; the 11th hour shows 9.6 percent, while the 12th shows only 8.7 percent. Further, data can vary across years. For example, in data and analysis explained below, in 2004 there was not a single fatigue-related fatal crash in the 11th hour. None of these widely varying values are precise measures of what would be seen if more observations were available. If TOT affects fatigue crash risks, it is more likely to be due to an underlying tendency to become more fatigued with longer periods of driving than to the individual effects of particular hours of driving. The need to fit a function to the data, extrapolating from the large volumes of crash experience at low TOT levels, was in fact recognized by the Court in its 2004 decision: The mere fact that the magnitude of time-on-task effects is *uncertain* is no justification for *disregarding* the effect entirely. The agency, for example, could have extrapolated the time-on-task effects of driving longer hours using crash-risk data derived from drivers who drove for shorter periods of time. ( *Public Citizen* v. *FMCSA* , 374 F.3d 1209, D.C. Cir. 2004, Slip opinion at 16) FMCSA believes the use of a combined data point at the average TOT and average fatigue crash risk along with the use of a cubic function were reasonable approaches to the need to fit a function and use the limited data available for high TOT values. Moreover, in reassessing this model, we have evaluated the suggestions made by Public Citizen and found that they would have been inappropriate. Specifically, Public Citizen suggested a method by which the average crash risk shown in the data for longer driving hours could have been combined and then placed at 13 hours for the purposes of modeling. If fatigue goes up steadily with TOT, one would expect the average fatigue percentage of crashes at *and beyond* 13 hours will be higher than the fatigue percentage at *exactly* 13 hours. Thus, combining all the high-TOT data at 13 hours would have biased upward the estimated relationship between TOT and fatigue-related crash risk. It is true that FMCSA did not use more recent statistical modeling techniques that utilize all of the individual observations of crashes across all TOT levels, but rather aggregated observations at specific hours of TOT to calculate and model those percentages. 2 One flaw in the original approach is that the cubic functional form allows for fatigue percentages that are greater than 100 percent or less than zero, which are outside the range of possible values for fatigue percentages. Another issue is that, by combining the data beyond the 12th hour, the analysis leaves out some of the available information: for example, it does not consider the relative numbers of crashes at different TOT levels. The revised analysis, described below, addresses these shortcomings in the original approach and employs a superior statistical method for analyzing binary outcomes, i.e., whether the crash was fatigue-related crash or not. FMCSA specifically requests comment on this new modeling approach. 2 In an analysis recently submitted to the Court by ATA, an expert statistician states that there is a “reasonable basis in statistical theory and practice for FMCSA's approach.” He has concluded that FMCSA's approach “has a reasonable basis, in contrast with [Public Citizen's] illustrative example, which is virtually guaranteed to produce a biased result.” The expert found that “FMCSA's cubic regression curve matches the curves produced by more sophisticated methods quite closely over the relevant range of driving hours, in contrast to [Public Citizen's] illustrative alternative curve, which departs substantially from the curves produced by more sophisticated methods.” Declaration of Dr. M. Laurentius Marais, Ph.D., at ¶ 6. See Tab F of the ATA Motion's Addendum to read Dr. Marais's declaration. It is in the docket referenced at the beginning of this notice. In response to the D.C. Circuit, FMCSA has re-estimated the function using a flexible logistic function, which lets predicted fatigue values range only from 0 to 100 percent. In this approach, every available crash data point was used, and several variants were tested to find the best-fitting logistic curve. See the RIA's Appendix V for details. The RIA is in the docket referenced at the beginning of this notice. In addition, because there are other determinants of fatigue-related crash risk besides the number of hours driving, FMCSA also explored taking other variables into account, including time of day, day of the week, and type of power unit (truck tractors or straight trucks). Again, this multivariate approach to predicting risk is a standard statistical technique. These extra factors did not change the simple relationship of TOT to fatigue crash risk; however, there are other interesting results relevant to the restart provision we will explain further below. This approach yielded a TOT fatigue crash risk function that was generally similar to the original cubic function for low TOT levels, but lay somewhat lower at the 11th hour as shown in Exhibit 2. ER17DE07.008 *Division of the Fatigue Percentage by its Average.* Dividing the predicted fatigue crash risk by an average value is a reasonable way to create a TOT adjustment factor that changes relative fatigue values within a set of data without changing the average value of that set. The fatigue model used in the original analysis yielded raw fatigue predictions for each simulated driving hour, but did not take TOT explicitly into account. Suppose these raw predictions happened to average 7 percent fatigue. To adjust these predictions to account for TOT effects, each simulated hour's fatigue percentage should be multiplied by an adjustment factor based on the TOT fatigue function: The raw predicted value for an 11th hour of driving, for example, should be multiplied by a larger value than for a 1st or 8th hour. FMCSA could have used the TOT fatigue function directly as an adjustment factor: Raw predicted values for the 11th hours could have been multiplied by 0.072, and those for the 1st hours by 0.014. On average, however, the resulting values would have been much smaller than the original values, because the average value of the TOT fatigue function across all hours is less than 0.03. To return the typical fatigue value to a more realistic level, the adjusted values would have had to be scaled up by close to two orders of magnitude. As an alternative, the TOT fatigue function can first be divided by its average. This step creates an adjustment factor that averages 1.0, with some values above 1 and some below. Using this adjustment factor will take the TOT effect into account while leaving the typical measured fatigue level relatively unchanged. *Choice of the Divisor.* In the original analysis, the TOT adjustment factor was created by dividing the TOT fatigue function by 2.92 percent, which was the average relative fatigue-related crash risk level for the first 11 hours as seen in the underlying data. It was argued by Public Citizen that the average value of the function for the first 10 hours would have been more appropriate. Because of the details of the analysis, however, and the way the results were scaled, the choice of divisor has no effect on the results. As demonstrated in Appendix V of the RIA, when the fatigue adjustment factors are applied to both the baseline and policy options, the divisor cancels itself out, and has no effect on the estimate of the relative fatigue crash percentages with or without the 11th hour. Thus, FMCSA concluded both that there is a conceptual basis for dividing the predicted fatigue levels by TOT by the average fatigue level—to create an adjustment factor centered on 1.0—and also that the choice of an exact divisor is unimportant because that factor cancels out in the mathematical calculation. Updates to the Analysis FMCSA concluded that two issues newly identified by the D.C. Circuit needed to be addressed in revising the estimated benefits of eliminating the 11th hour. First, the function used by the Agency was not ideal. As discussed above, although we continue to believe our original approach is reasonable, we have developed a more sophisticated model. Second, the approach laid out above was implemented incorrectly. Although all TOT hours should have been adjusted, in the 2005 analysis, only hour 8 or more were given adjustment factors. The Agency has calculated how these two issues would have affected the estimated benefits of eliminating the 11th hour by estimating the change in the average fatigue crash risk twice: once with the original approach, and once with an updated approach. For each approach, this was accomplished by • Estimating the fraction of driving that was done in each TOT hour, assuming that driving 11 hours was legal; • Multiplying the fraction for each TOT hour by a TOT fatigue adjustment factor; • Summing the results of this multiplication; • Repeating these calculations for a case that allowed only 10 hours of driving; and • Finding the percentage change in the fatigue percentages between the 11 and 10 hour cases. The details of these calculations are shown in Appendix V of the RIA. Under the original analysis, the fatigue crash risk appeared to fall by almost 3.6 percent if the 11th driving hour were restricted. Under the revised analysis, the fatigue crash risk fell by 5.1 percent. Thus, correcting the TOT approach is expected to increase the projected TOT safety benefits by a factor of about 5.1 percent/3.6 percent, or about 1.42 times. Thus, if the analysis had been done correctly, the true benefits would be about 1.42 times the original estimate of $60 million, or about $85 million per year. Comparisons of Revised Benefits to Estimated Costs The increase of $25 million in benefits per year still leaves the projected benefits of restricting the 11th hour of driving of $85 million per year far short of the projected costs. The costs of prohibiting the 11th hour were estimated by finding the average reduction in driver productivity in shifting between a case that assumed driving time is capped at 11 hours and a variant that capped driving time at 10 hours. As described in Appendix V of the RIA, the change in productivity of almost 2 percent, valued at almost $300 million per percentage point, led to an estimated cost of $586 million per year for eliminating the 11th hour. In the original analysis, subtracting the benefits of $60 million left estimated net costs of $526 million; with the revised TOT analysis, the net costs are now estimated to be $501 million. This reduction in net costs from $526 million to $501 million amounts to less than 5 percent of total net costs. Thus, the revisions to the TOT analysis have very little effect on the estimated cost-effectiveness of eliminating the 11th hour. The RIA did present a sensitivity analysis that showed, under a variety of unique circumstances, the net costs could fall from $526 million to about $240 million. As such, the conclusion reached in the RIA accompanying this rule was that, regardless of the assumptions made, whether they were related to the percent of all large truck crashes that are fatigue-related, the relative risk associated with fatigue-related large truck crashes in the 11th hour, or the value of a statistical life, there would still be a minimum annual net cost of approximately $160 million to eliminate the 11th hour of driving. *The 34-hour restart provision.* The 34-hour restart provision gives drivers, particularly long-haul drivers, operational flexibility in planning their trips that previously was not available with the 7- and 8-day limits. FMCSA set the limit at 34 hours because that would provide drivers with an opportunity to obtain two 8-hour sleep periods while keeping them on a 24-hour cycle. The Agency adopted the 34-hour restart after reviewing studies considering the time periods necessary for overcoming cumulative fatigue caused by sleep debt. [Dinges, D.F., *et al.* (1997), p. 267; Balkin, T., *et al.* (2000), p. ES-8; Belenky, G., *et al.* (2003), p. 11; Van Dongen, H.P.A., *et al.* (2003), p. 125. The research studies cited in this interim rule are included in the List of References in the 2005 final rule (70 FR 49978, at 50067). Copies or abstracts are in the docket referenced at the beginning of this notice.] As the Agency explained in 2005, fatigue resulting from sleep loss is usually characterized as acute, resulting from a single insufficient sleep period; or cumulative, resulting from two or more insufficient sleep periods [Rosekind, M.R., *et al.* (1997), p. 7.2]. Rosekind describes three types of sleep loss (i.e., total sleep loss, partial sleep loss, and sleep debt): “Sleep loss can occur either totally or as a partial loss. Total sleep loss involves a completely missed sleep opportunity and continuous wakefulness for about 24 hours or longer. Partial sleep loss occurs when sleep is obtained within a 24-hour period but in an amount that is reduced from the physiologically required amount or habitual total. Sleep loss also can accumulate over time into what is often referred to as 'sleep debt.' Sleep loss, whether total or partial, acute or cumulative, results in significantly degraded performance, alertness and mood” [ *Id.* ]. Public Citizen's challenge to the 2005 rule argued that the restart provision allows drivers to work more hours each week, leading to cumulative fatigue that is different from sleep debt. In its opinion invalidating the 34-hour restart the Court agreed, explaining that it was interested in a “different kind” of cumulative fatigue, the cumulative fatigue “associated with the increased driving and working hours that [the 34-hour restart] would permit,” and not “the `sleep deficit' that `accumulates with successive sleep-deprived days.' ” The Court concluded that FMCSA had not adequately considered this “cumulative fatigue.” This interim rule responds to this finding by the Court in two parts. First, the Agency found in 2005 that few studies address the effect of recovery periods between work periods spanning multiple days, such as a workweek [O'Neill, T.R., *et al.* (1999), p. 2; Wylie, C.D., *et al.* (1997), p. 27; Smiley, A., & Heslegrave, R. (1997), p. 14]. After reviewing the studies relevant to the 34-hour recovery period, as cited in the 2003 rule and those submitted by commenters to the 2005 NPRM, the Agency determined that current scientific evidence is limited with respect to the type of cumulative fatigue raised by Public Citizen and the Court. Studies of time-on-task frequently measure “fatigue” as a function of drowsiness. For example, Wylie, C.D., *et al.* 's 1996 operational study of 80 long-haul drivers engaged in revenue-generating runs in the U.S. (under the 10-hour driving limit) and Canada (under that country's 13-hour driving limit), reported that time-on-task was not a strong or consistent predictor of observed fatigue, measured as drowsiness, as observed in video records of comparable daytime segments of driving. In Wylie's study, no difference in drowsiness was found between 10 and 13 hours of driving. Some measures of performance, such as lane tracking and individual cognitive performance, as well as self-rating of fatigue, were better at 10 hours of driving time than at 13 (lane tracking was confounded by difference in driving routes and road conditions in the two countries). Conversely, reaction time was better at 13 hours of driving than at 10. The authors noted that the lack of variance in drowsiness between driving periods may be attributable to the fact that the study measured only daytime drowsiness. Other research suggests the body's circadian rhythm limits the negative effects of more hours of work during daytime operations. [Wylie, C.D., *et al.*

(1996)pp. 5.13-5.14]. A 1999 study evaluated the effects on fatigue and performance during a daytime schedule of 14 hours on duty and 10 hours off duty, with drivers performing simulated driving and loading/unloading tasks. The authors found mild cumulative effects on subjective measurements of sleepiness; a slight but statistically significant deterioration in duty-day subjective sleepiness, reaction time response, and measures of driving performance over the course of a week; but no cumulative deterioration of driver response in crash-likely situations. The authors reported that a schedule of 14 hours on duty (with 12 hours of driving) and 10 hours off duty for 5 consecutive day periods did not appear to produce significant cumulative fatigue over the 2-week testing period [O'Neill, T.R., *et al.* (1999), p. 48]. Additionally, as its second part of its response to the Court's finding, FMCSA sought recent (i.e., post-2005) scientific studies addressing cumulative fatigue of the type focused upon by the Court. Although some popular literature discusses “burnout,” the Agency does not consider these anecdotal narratives to be evidence that cumulative fatigue is a significant concern under normal driving conditions. While the Agency concluded based on a reasonable review of the literature that cumulative fatigue associated with increased weekly truck driving activity under the conditions similar to that studied in the literature was not a substantial problem, the critics of the 2005 rule did not provide any scientific literature supporting their claims of cumulative fatigue specific to truck driving. It is therefore not surprising that FMCSA has been unable at this time to identify an available model that it could use to evaluate the effects of cumulative fatigue as a factor separate from fatigue caused by sleep deficits in a motor carrier context. FMCSA seeks existing studies or models that could be used to further analyze and validate the veracity of these claims regarding cumulative fatigue, specifically studies or models analyzing or focused on truck driving. Furthermore, Public Citizen discussed a scenario by which the new rulemaking would allow for a substantially higher number of hours than would be found under the more normal driving conditions similar to those studied in the literature. This would be accomplished by driving 11 hours, immediately going off duty for 10 hours, and repeating this pattern. First, although such a pattern could develop in certain operations for certain periods, nothing like this was observed in FMCSA's 2005 and 2007 Field Surveys. Additionally, non-standard driving patterns were allowed under the pre-2003 rule that had the potential to result in significantly more sleep-associated fatigue than the driving patterns that would be allowed even under Public Citizen's unlikely scenario. For example, under the pre-2003 HOS rules, a driver was permitted to exclude intermittent periods of off-duty time from the maximum 15 hours of on-duty time, after which the driver could not drive a CMV. Therefore, a driver having several off-duty periods (e.g., meal breaks, inactivity awaiting dispatch, personal business) of several hours each during the day could legally drive a CMV in the 24th or later hour after the start of the duty day. Under the current HOS rules, this driver could not drive a CMV after the 14th hour of coming on duty following 10 or more consecutive hours off duty, regardless of any intermittent off-duty periods. FMCSA therefore believes the pre-2003 possibilities of “extreme” driving behavior are actually eliminated under the 2003 or 2005 rule. FMCSA specifically requests comment on this conclusion. Furthermore, FMCSA has conducted additional technical analysis of the Trucks Involved in Fatal Accidents

(TIFA)data (referenced later in this IFR) to examine the potential relationship between the probability of a fatigue-related large truck crash and other factors that one might expect to influence the likelihood of a fatigue-related crash. We believe this further analysis is relevant to both the more standard driving schedules commonly observed in the industry, and work schedules where commercial drivers may be pressing the daily driving and weekly on-duty limits. This is because TIFA data captures various types of commercial drivers involved in fatal large truck crashes, without regard to specific operating schedules. As such, if cumulative driving hours across a non-interrupted series of days independently caused an increase in fatigue-related crash risk, FMCSA believes this analysis would identify it. After studying the pattern of restarts in the industry, FMCSA determined that a reasonable proxy for the time spent driving over multiple days after a restart is the day of the week. This is because the majority of restarts happen over a weekend, as revealed in the 2007 Field Survey discussed later in this preamble. Specifically, a logistic regression modeling approach was used for this analysis and TIFA data covering the period 1991-2004. Several additional TIFA variables of interest were included in the logistic regression beyond the “hours of driving” used to address time on task

(TOT)in the regulatory impact analysis (see RIA in docket for details of that analysis). These additional variables included day of the week of the crash, time of day of the crash, the number of vehicles involved in the crash, and the type of vehicle involved (i.e., straight truck versus tractor-trailer combination). The additional variables made it possible to broaden the analysis of potential causes of large truck fatigue-related crashes, which added interesting insights but did not, in the end, change the TOT analysis itself (as is fully discussed in the RIA). For instance, FMCSA modeled single- and multi-vehicle crashes. For these analyses we excluded cases where the hours of driving were not reported, where the vehicle was government operated and exempt under 49 CFR 390.3(f)(2), or where the vehicle was a daily rental and the gross vehicle weight rating

(GVWR)was 26,000 pounds or less. We fitted various logistic models to the data. Specifically FMCSA estimated five unique logistical regression models which included the following independent variables: • Model 1: Hours of Driving; • Model 2: Hours of Driving, Day of week, Time of day (0 to 24), Large Truck Type (Single or Tractor/Trailer); • Model 3: Hours of Driving, Day of week grouped (Mon, Tue-Thu, Fri, Sat-Sun), Time of day in 3-hour groups, Large Truck Type (Single or Tractor/Trailer); • Model 4: Hours of Driving, Time of day (0 to 24), Large Truck Type; and • Model 5: Hours of Driving, Time of day in 3-hour groups, Large Truck Type. The day-of-week variables in Models 2 and 3 were found not to be significant and so were excluded from Models 4 and 5. The fact that fatigue did not appear to change systematically throughout the week has a direct bearing on the question of the accumulation of fatigue with long hours of work over multi-day periods. Drivers of large trucks tend to take their extended breaks (i.e., restart periods) over the weekend as was revealed by the 2007 FMCSA Field Survey data discussed in a later section of this preamble. If heavy working schedules of truck drivers actually led to substantial increases in cumulative fatigue, we would expect to see driving performance deteriorate over the course of the week. FMCSA believes this provides sound evidence that drivers are not accumulating significant levels of “time on task”

(TOT)cumulative fatigue over the course of the week. The Agency has not identified any evidence that cumulative fatigue represents a significant problem under the 2003 or 2005 rule. As it stated in the 2005 final rule (70 FR 50022) with respect to the impacts of the 11-hour driving rule and the 34-hour restart, FMCSA continues to believe that “the average driver [does] not, and cannot realistically, drive and work the longer weekly hours, on a regular basis,” as suggested by opponents of those two provisions. It is virtually impossible for a driver to drive 77/88 hours over 7/8 days and to be on duty 84/98 hours over the same 7/8 day period. To follow the scenario identified by these opponents, the driver would be severely limited in his or her ability to obtain fuel and food, to attend to personal hygiene needs, to park large trucks, to communicate with dispatchers, to pick up loads, to unload, and to do paperwork. FMCSA believes this is so unrealistic that seeing this type of driving behavior during the course of an inspection would cast doubt on the accuracy of the logbooks. Recent operational data do not show that drivers are working or driving these maximum amounts of hours. FMCSA believes that it is a valid exercise of its judgment to base its decision regarding the 11-hour limit and 34-hour restart on the emerging factual data about actual driving behavior and not exclusively on hypothetical and speculative calculations about the potential behavior of drivers. Affidavits submitted to the Court by ATA in support of its motion to stay the mandate provide evidence that weekly driving hours have not increased significantly under the new HOS rules. Instead, the rules, and the 34-hour restart provision in particular, are described by several trucking officials as having increased the operational flexibility available to drivers and carriers to schedule and complete work. There is, furthermore, no evidence in the crash data of the harmful effects of the “cumulative fatigue” expected by the critics of the 2005 rule to result from their extreme estimates of increased duty hours. Recent data in fact show that vehicle miles have only slightly increased, while the fatal crash rate for the same period has declined. Although the Court did not reach the issue of the implications for drivers' health of the 11-hour driving limit and the 34-hour restart, the Agency continues to affirm its previous conclusions, reached after a careful examination of the available evidence, that changes to HOS under the 2005 rule, including its 11-hour limit and 34-hour restart, do not have a deleterious effect on the physical condition of drivers. FMCSA continues to believe that its conclusions accurately reflect a preponderance of the scientific data. FMCSA refers interested parties to 70 FR 49978, at 49982-49992. F. Evaluation of Recent Safety and Operational Data Under 11-Hour and 34-Hour Rules The 11-hour driving limit and the 34-hour restart provisions have been in place since January 2004. Thus, FMCSA has been able to compile and review a significant amount of new safety and operational data throughout the industry (data that were not available for consideration during the Court's review of the 2005 Rule). The data from this period of more than 3 years has enabled the Agency to assess the impacts of the 11-hour limit and 34-hour restart on safety, and to assess compliance with the current rules compared to the pre-2003 rules. Safety Data This section focuses on the most current safety data, including reviews of the following studies and data sources:

(1)Fatality Analysis Reporting System

(FARS)data for calendar years 2003 and 2006;

(2)Trucks Involved in Fatal Accidents

(TIFA)data for calendar years 2003 through 2005;

(3)a Virginia Tech Study of the 10th and 11th Driving Hours;

(4)an American Trucking Research Institute HOS Safety Study (2006);

(5)FMCSA HOS compliance rate data between 2003 and 2006; and

(6)industry crash data filed with the Court docket by ATA in 2007. Fatality Analysis Reporting System

(FARS)FARS is a national census of fatal crashes involving motor vehicles, including large trucks. FARS data are reported annually by the States, maintained by the National Highway Traffic Safety Administration (NHTSA), and are generally recognized as the most reliable national motor vehicle crash data available. FARS data through 2006 are available to the public at: *http://www-fars.nhtsa.dot.gov/Main/index.aspx.* As discussed in the preamble to the HOS final rule in 2005, FMCSA analyzed the 2003 and 2004 FARS data to examine trends in large truck fatal crashes, and fatigue-related fatal crashes before and after initial implementation of the 11-hour driving limit and the 34-hour restart, in January 2004. Analysis of the first 9 months of data from the 2003 Annual FARS Report and the 2004 Early FARS Assessment Files (which have traditionally contained most of the fatal crashes that eventually appear in the FARS Final Report File) revealed that fatigue-coded large truck crashes, as a percent of the total large truck fatal crashes in those years, decreased from 1.7 percent to 1.5 percent. (For 2003, 54 fatigue-coded large truck crashes divided by 3,120 total large truck fatal crashes equals 1.7 percent; for 2004, 43 fatigue-coded large truck crashes divided by 2,954 total large truck fatal crashes equals 1.5 percent.) This 0.2 percent difference in the percent of fatigue-coded fatal large truck crashes represented a one-year decrease of 11.8 percent (0.2 divided by 1.7), using 2003 as the baseline. It should be noted that NHTSA releases the annual FARS data in three waves: The first release is the Early Assessment File, which represents a projection of a partial year's worth of data to full-year and is released in the spring of the calendar year following the crash data year on interest (i.e., 2004 FARS Early Assessment data were released in Spring 2005); the second release is the Annual Report File, which represents a full year's worth of data and is released in the Fall of the calendar year following the crash data year of interest (i.e., 2003 FARS Annual Report File data were released in Fall 2004); finally, the Final Report File represents a full year's worth of data but additional data related to the crashes in the file are added. The Final Report File is released in the Fall of the second calendar year following the crash data year of interest (i.e., 2003 FARS Final Report File data were released in Fall 2005). Since the issuance of the 2005 rule, NHTSA has released the final versions of the 2003 and 2004 FARS data files. While the numbers of fatigue-coded fatal large truck crashes were revised minimally upward in both years (as would be expected moving from Early Assessment and Annual Report files to Final Report Files), the percent of these crashes where the large truck driver was coded as fatigued (1.7 percent in CY2003 and 1.5 percent in CY2004) did not change. See Table 1. Table 1.—Fatal and Fatigue-Related Fatal Crashes Involving Large Trucks, by Calendar Year Year Total large truck fatal crashes Fatigue-coded large truck crashes Fatigue-coded large truck fatal crashes, as percent of total Large truck vehicle miles traveled

(VMT)(millions) Large truck fatal crash rate* (per 100 million VMT) 2000 4,573 99 2.2 205,520 2.23 2001 4,451 65 1.5 209,032 2.13 2002 4,224 70 1.7 214,603 1.97 2003 4,335 74 1.7 217,917 1.99 2004 4,478 66 1.5 220,811 2.03 2005 4,551 82 1.8 222,836 2.04 2006 4,321 69 1.6 ** 223,282 1.94 Fatigue-related large truck crashes are defined as those where the large truck driver was coded as fatigued at the time of the crash. * Large Truck Fatal Crash Rate is defined as the number of fatal large truck crashes per 100 million large truck vehicle miles traveled. ** 2006 Large Truck Vehicle Miles Traveled

(VMT)Projection based on 2006 FHWA Total VMT projection. A large truck is defined as a truck with a gross vehicle weight rating

(GVWR)greater than 10,000 pounds (includes medium and heavy trucks). Source: FMCSA Analysis of Fatality Analysis Reporting System (FARS), NHTSA. The FARS data for calendar years 2000 through 2006 (where all but the 2006 file have been finalized by NHTSA) show that the percent of fatigue-coded large truck crashes fluctuated from a high of 2.2 percent in 2000 to a low of 1.5 percent in 2001 and 2004. In the 3 years since the 2003 HOS rule has been in effect, the number of fatigue-related large truck crashes as a percent of all large truck fatal crashes each year has remained relatively stable. And although the coding of driver fatigue at the time of a crash may be under-reported in some cases (given the difficulty in verifying fatigue-related crashes), there is no reason to believe that this under-reporting varied from year to year during this period. From these data sets, FMCSA determined that the 2005 rule, including the 11-hour limit and 34-hour restart provisions, has not had a negative impact on safety; overall large truck safety has not been compromised by the 11-hour limit or the 34-hour restart. Also, more broadly, FARS and General Estimates System 3

(GES)data indicate that the total number of large truck fatalities fell significantly between 2005 and 2006 (by 4.7 percent), while large truck injuries fell by 7 percent. In calendar year 2000 large truck fatalities totaled 5,282 and injuries totaled 140,000. In contrast, in calendar year 2006 large truck fatalities dropped to 4,995 (or a decrease of 5.4 percent), while large truck injuries fell to 106,000 (a decrease of 24 percent). Using 2006 vehicle miles traveled

(VMT)forecast data from the Federal Highway Administration and applying it to large trucks, the large truck fatal crash rate in 2006 is estimated to have decreased to 1.94 fatal crashes per 100 million large truck VMT, from 2.23 fatal crashes per 100 million large truck VMT in 2000, for a reduction of 13 percent over the last seven year period (see Table 1). The 1.94 fatal crashes per 100 million large truck VMT represents the lowest large-truck fatal crash rate recorded since the U.S. Department of Transportation began collecting data in 1975. 3 General Estimates System is a nationally representative sample of motor vehicle crash data that are produced annually by NHTSA and used in traffic safety analyses by NHTSA as well as other DOT agencies. For more information, see *http://www-nrd.nhtsa.dot.gov/departments/nrd-30/ncsa/GES.html.* It is particularly relevant for analyzing the effect of the new rules, and the 34-hour restart provision in particular, to examine the crash profile of combination unit trucks (CUTs), because they have average vehicle weights greater than 26,000 pounds and are the principal heavy trucks used in the long-haul operations covered by today's 11-hour and 34-hour restart interim rules. In addition, drivers of CUTs are most likely to be involved in a fatal large truck crash. 4 Data from the 2002 Vehicle Inventory and Use Survey

(VIUS)of the Department of Commerce's Census Bureau indicate that the primary range of operations for 29 percent of heavy vehicles were trips of greater than 200 miles, compared to only 12 percent of medium and light-duty trucks (with average vehicle weights of 10,001 to 26,000 pounds). In addition, FMCSA's examination of the records of duty status of over-the-road and local drivers reviewed as part of its 2005 Field Survey found that 247 of 421 (or 59 percent) of the over-the-road drivers used the restart provision at least once, while 57 of 125 (or 46 percent) of local drivers did so. In 2006, CUTs were involved in a total of 3,194 fatal crashes. This total of CUT-involved fatal crashes is the lowest since 1995. Applying Federal Highway Administration projections for VMT in 2006 to CUTs, the fatal crash rate for 2006 for combination unit trucks equaled 2.22 per 100 million VMT, which is the lowest CUT fatal crash rate since records began being collected in 1975. In addition, according to NHTSA's GES data, the CUT injury-crash rate in 2006 was 27.5 per 100 million VMT, and the property-damage-only

(PDO)crash rate was 99.1 per 100 million VMT. Both the injury crash rate and the PDO crash rate for CUTs in 2006 were also the lowest since records began being collected in 1975. 4 Source Trucks involved in Fatal Accidents

(TIFA)data. Such data, in conjunction with other data presented elsewhere in this IFR, indicate clearly that the overall safety performance of the U.S. motor carrier industry has been maintained since implementation of the 2003/2005 HOS rules. Trucks Involved in Fatal Accidents

(TIFA)Data The Trucks Involved in Fatal Accidents

(TIFA)data file, another data set the Agency relies on to evaluate and make determinations regarding the HOS rule, combines large truck fatal crash data obtained annually from NHTSA's FARS with additional data items collected by the University of Michigan Transportation Research Institute (UMTRI). The UMTRI collects the additional data items through telephone interviews with truck drivers, carriers, or investigating officers after fatal crashes. UMTRI combines vehicle, crash, and occupant records from FARS with information obtained through TIFA, such as the physical configuration of the large truck, the motor carrier's operating authority, and the hour of daily driving at the time of the crash. TIFA and FARS variables of particular interest include whether the large truck driver was coded as being fatigued at the time of the crash, the time of day, the intended trip distance, and hours driving since the last mandatory off-duty period (a minimum of 8 hours in the case of data through calendar year 2003 and 10 hours in the case of calendar year 2004 and 2005 data). TIFA data used in the regulatory impact analysis

(RIA)for the 2005 HOS rule were for the years 1991 through 2002 (the most recent data available when the Agency published its 2005 rule). The sample size of this file represents more than 50,000 medium/heavy trucks involved in fatal crashes in the U.S., of which approximately 1,000 involved large trucks where the truck driver was fatigued. TIFA data for this period indicated that there were 94 vehicles involved in fatal crashes in the 11th hour of driving, of which 9 were coded as fatigue-related. This represents 94 instances in which the vehicle was being operated in the 11th hour following only 8 consecutive hours off duty, a violation under the rules in effect unless the driver was operating in intrastate commerce under State rules or under the adverse driving conditions exception. The TIFA data covering calendar years 2003 through 2005 were not available for analysis at the time the Agency published the 2005 HOS rule, but these new data are illustrative, particularly with regard to the downward trend in the number of large trucks involved in fatigue-related fatal crashes each year after the Agency published the 2003 HOS rule (see Table 2). Table 2.—Large Trucks Involved in Fatal and Fatigue-Related Fatal Crashes in the 11th Hour of Driving, by Calendar Year Calendar year

(CY)Fatal crashes Fatigue-coded (large truck driver) Fatigue-coded as percent of total 1991-2002 94 9 9.6 2003 13 1 7.7 2004 16 0 0.0 2005 13 1 7.7 Source: Trucks Involved in Fatal Accidents (TIFA), 1991-2005. Specifically, in CY2003, 13 large trucks were involved in fatal crashes where the large truck driver was operating in the 11th hour of driving, but in only one of those crashes was the truck driver coded as being fatigued. In CY2004, the first year under the new HOS rule, a total of 16 large trucks were involved in fatal highway crashes in the 11th hour. This total is an increase of three over the 13 large trucks involved in fatal crashes in the 11th hour of driving in 2003, when driving in the 11th hour was illegal for most drivers. However, in 2004 *no* large trucks were involved in fatigue-related fatal crashes in the 11th driving hour. The 2005 TIFA data show 13 large trucks involved in fatal crashes while the truck driver was in the 11th hour of driving. In only one of those crashes was the truck driver coded as fatigued. The 2004 and 2005 TIFA data represent an improvement over the pre-2003 period, in terms of the percentage of large truck drivers operating in the 11th hour who were coded as fatigued at the time of the crash. Virginia Tech Transportation Institute

(VTTI)Studies In 2005, FMCSA contracted with the Virginia Tech Transportation Institute

(VTTI)to analyze data on crash risk during the 10th and 11th hour of driving as an adjunct to a large on-the-road driving study VTTI was conducting under an FMCSA and NHTSA joint initiative. This study offered an opportunity to analyze empirical data obtained under the 2003 HOS rule. The primary goal was to determine the effect, if any, of the 11th hour of driving on driver performance and drowsiness. This study did not include all drivers who participated in VTTI's large on-the-road driving study; only data collected through May 1, 2005 were available and used in the analysis published with the 2005 HOS rule (August 2005). This study, however, did involve 82 drivers working for three trucking companies who had driven approximately 1.69 million miles, under the 2003 HOS rule. [Hanowski, R.J., *et al.* (2005)] In the analysis filed with the 2005 HOS rule, the researchers found no statistically significant difference in the number of critical incidents between the 10th and 11th hours of driving [Hanowski, R.J., *et al.* (2005), p. 9]. The study defined critical incidents as crashes, near crashes (where a rapid evasive maneuver is needed to avoid a crash), and crash-relevant conflicts (which require a crash-avoidance maneuver less severe than a near-crash, but more severe than normal driving). When the occurrence of critical incidents is used as a surrogate for driver performance decrements, there was no statistically significant difference between the 10th and 11th hour of driving. The VTTI study team meticulously examined video for each critical incident to detect driver drowsiness i.e., slow eyelid closure—a validated measure of drowsiness. VTTI concluded that when a critical incident occurred, drivers were not measurably drowsier in the 11th than the 10th hour of driving. These results may be related to another finding, showing that drivers appear to be getting more sleep under the 2003 rule than they did when the minimum off-duty period was only 8 hours. Compared to four sleep studies conducted under the pre-2003 rules, the Hanowski study found that drivers operating under the 2003 rule are obtaining on average over one hour of additional sleep per day [ *Id* , p. 8]. In 2007, American Trucking Research Institute (ATRI), affiliated with the ATA, contracted with VTTI to complete the analysis with all drivers whose data was collected as part of the Drowsy Driver Warning System Field Operational Test. This analysis included data for an additional 16 drivers or a total of 98 drivers (for a total of over 2 million miles of driving data) and the initial study's results and conclusions still hold; namely, that there was no statistically significant difference in the number of critical incidents occurring in the 10th versus the 11th hours of driving [Hanowski, R.J., *et al.* (2007)]. A copy of this VTTI analysis was submitted by ATRI to FMCSA and placed in the docket for this IFR. Additionally in 2007, FMCSA contracted with VTTI to expand the analysis on all 98 drivers to examine critical incidence in 1st through the 11th hour driving for all drivers and for those drivers who drove a total of 11 hours. For this analysis, all critical incidents (crashes, near-crashes, crash relevant conflicts) were grouped by driving hour. An analysis of the odds ratios was calculated to estimate the relative risk of increased driving hours on critical incident occurrence. Each hour that a driver drove became a trip and was used to calculate the relative frequency of critical incidents. Figure 1 shows the preliminary findings (final results due by December 31, 2007) for the number of trips that drivers drove over the course of the Field Operational Test. VTTI used the number of trips shown in Figure 1 to assess the relative frequency of critical incident occurrence by hour of driving and these results are shown in Figure 2. While the data show a slightly elevated risk of critical incidents in the 1st hour of driving there was no discernable trend for driving hours two through eleven. VTTI examined the odds ratios to estimate the relative risk and determined that there was no statistically significant difference in the risk of a critical incident between hours 2 through 11 [Hanowski, R.J., *et al.* (2007)]. This result also held for drivers who drove an entire 11 hour period. A copy of this VTTI analysis is in the docket for this IFR. These findings are very similar to the findings of the Driver Fatigue and Alertness Study. O'Neill stated that “simple time-on-task is not a uniformly effective determiner of performance. Factors such as time-of-day (and its relation to circadian cycle) and rest break schedule are so influential that other factors customarily associated with performance deterioration over time are dwarfed” [O'Neill, T.R. *et al,*

(1999)p. 40]. Wylie concluded that “the strongest and most consistent factor influencing driver fatigue and alertness in this study was time-of-day” [Wylie, C.D.

(1998)p. ES-8]. Again, the findings from these three VTTI studies should not be surprising; they were consistent with the research from Wylie's Driver Fatigue and Alertness Study, which at the time of its publication was the largest on-the-road driver fatigue study. These VTTI studies showed that time-on-task or the number of hours driven is not a good predictor of driving degradation. There was no increased risk of critical incidents (crashes, near-crashes, crash relevant conflicts) of driving in the 11th verses the 10th hour of driving. ER17DE07.009 Hours of Service Compliance Rates (2003 vs. 2006) In addition to examining large truck crash data, FMCSA also examined motor carrier compliance rates with the HOS regulations over time via roadside inspection data collected and reported by States to FMCSA. Specifically, to examine changes in compliance rates with 49 CFR part 395 regulations before and after implementation of the HOS rules, FMCSA examined differences between CY2003 (the calendar year before implementation of the latest HOS rule) and CY2006 (the calendar year during which full implementation of the latest HOS rules would be reasonably expected and the latest full year of data available). Results, as seen in Table 3, indicate that the total number of driver inspections with HOS violations increased by 3 percent over this period (from 513,393 to 526,992). However, the total number of driver inspections conducted in CY2006 actually increased 8 percent from CY2003. As such, the total HOS violation rate (i.e., those driver inspections with at least one HOS violation divided by total number of driver inspections in that year) decreased from 17.4 percent in 2003 to only 16.5 percent in 2006. Table 3.—Driver Inspections With HOS Violations, Number and Percent Change, Calendar Year 2003 and CY2006 Part 395

(HOS)violation type CY2003 Number Percent * CY2006 Number Percent * Growth rate Percent Total Driver Inspections 2,958,598 NA 3,191,358 NA 8 Total Number of Inspections With HOS Violations 513,393 526,992 3 10 or 11 Hour Rule 63,773 12 55,268 10 −13 15 or 14 Hour Rule 12,905 3 90,489 17 601 60 or 70 Hour Rule 18,363 4 8,144 2 −56 No Log 46,379 9 43,926 8 −5 False Log (Out-Of-Service) Violation 22,501 4 25,149 5 12 False Log (Non-Out-Of-Service) Violation 13,465 3 11,390 2 −15 Form & Manner Violation 162,701 32 157,007 30 −3 Log Not Current 243,831 48 237,498 45 −3 * Percentage calculations for individual violations will add to more than 100 percent, as two separate HOS violations may be cited during a single inspection. As such, there is potential double counting, in that the single inspection is counted within both violation rows. Driver Inspections defined as Level 1, 2, or 3 Level Inspection according to Commercial Vehicle Safety Alliance

(CVSA)Commercial Driver Inspection Types. Source: FMCSA Motor Carrier Management Information System, Snapshot October 2, 2007. Inspections with violations of driving-time limits decreased by 13 percent during this time period. Inspections with violations of the 60-/70-hour rule decreased by approximately 56 percent over this period, as one would expect, given the availability of the 34-hour restart provision. In fact, six of the eight specific HOS violations cited at the roadside during this period decreased and only two increased. As for violations of the daily on-duty (14/15 hour) regulation and logbook falsifications, roadside inspection officials indicate that those citations increased mainly because inspectors can spot violations much more easily under the 2005 rule than they could under the pre-2003 HOS rule (which allowed for an extendable daily on-duty period via breaks). Under the 14-hour rule, safety inspectors need only identify the start of the workday and count to the 14th hour, unless the driver has a qualifying sleeper berth period of at least 8 but less than 10 hours. By contrast, under the former 15-hour rule, all miscellaneous off-duty periods had to be considered to potentially extend the window; this includes making a determination whether the period satisfied the requirements to be counted as off duty. The above data show overall improvements in compliance with the HOS regulations and provides additional evidence that overall safety performance has not been compromised by the 2003 and 2005 HOS rules. 2006 American Transportation Research Institute Safety Study In 2006, ATRI designed a research study to provide empirical data on the safety impacts of the HOS rule. The ATRI study examined aggregated collision and driver injury data from motor carriers before and after implementation of the 2003 HOS rule. The study was significant because it involved 23 medium-to-large trucking fleets, roughly 100,000 commercial drivers and more than 10 billion vehicle miles of travel each year. The study population was comprised of ATA members and the fleets represented in the study included both for-hire and private fleets, as well as those operating in the truckload

(TL)and less-than-truckload

(LTL)segments. The participating carriers from the TL and LTL segments represented 16 and 15 percent, respectively, of all total industry activity in those segments. The study's final report, issued March 2006, indicates that the vast majority of trucks examined in the study were heavy trucks, or tractor-trailer combination units (those units with gross vehicle weight ratings above 26,000 pounds). Weighted results (i.e., based on averages of crashes and injuries divided by mileage for participating fleets) showed consistent and meaningful reductions in crash rates from before to after the 2003 rule became effective in January 2004. Specifically, the study found statistically significant reductions in the overall collision rate per million VMT (−3.7 percent), as well as reductions in the preventable collision rate (−4.8 percent), the driver injury rate (−12.6 percent), and the collision-related injury rate (−7.6 percent). Weighted averages were used in the study, meaning each fleet's contribution to the total rate was proportional to its mileage, and the study primarily examined rates, since those allow researchers to normalize any change in the number of large truck crashes by the total vehicle miles driven in those years. Further, these results are consistent with the trends in the FARS data described above. Data from the ATRI safety study further support the position that overall safety of the motor carrier industry has been maintained since the 2003 and 2005 HOS rules became effective. Carrier Safety Data Filed With ATA Motion In addition to the data sets and studies discussed above, ATA filed a series of affidavits or declarations with the Court on September 6, 2007, with its motion for a stay of the Court's mandate. In those documents, ATA highlighted some of the recent safety experiences of its member trucking companies that have operated both before and after the new HOS rules. Although these affidavits are not necessarily a statistically representative sample of the effects of the new rulemakings on safety, their company experiences are consistent with the statistical results described above, and do represent some of the largest and most expansive trucking operations in the United States. Copies of the ATA motion and the complete affidavits and declarations of its member trucking companies that ATA included with its motion can be found in the docket referenced at the beginning of this notice. Schneider National Inc., the eighth largest for-hire trucking company in the United States based on revenues, operates approximately 12,000 over-the-road tractors and directly or indirectly employs more than 15,000 commercial drivers. According to Donald Osterberg, 5 Vice President of Safety and Driver Training, “in almost every category assessed, Schneider [has] experienced improved safety performance under the current HOS rules (as compared with 2003 * * *). With regard to accidents that we describe as “Ultra Major” because they have potential liability exposure in excess of $250,000, our 2006 numbers were down 41.67% from our 2003 experience. Similarly, in 2006, our potential fatigue related crashes were down 27.39% as compared with 2003 * * *. Our fatigue related crashes as a percentage of total preventable crashes were down 17.85% in 2006 as compared with 2003. Our lost time injuries per 10,000 loads was down 24.14% in 2006 as compared with 2003 * * *. Our Ultra Major frequency per MM [million miles] was down 35.77% in 2006 as compared with 2003. Our fatigue related major crashes per MM was down 20.05% in 2006 as compared with 2003. And our preventable potential fatigue related crashes was down 9.55% in 2006 as compared with 2003.” 5 See Tab I of the ATA Motion's Addendum to read Mr. Osterberg's declaration. It is in the docket referenced at the beginning of this notice. Mr. Greer Woodruff, 6 Senior Vice President for Safety and Security of J.B. Hunt, the tenth largest for-hire trucking company in 2006 based on revenues, stated: 6 See Tab M of the ATA Motion's Addendum to read Mr. Woodruff's affidavit. It is in the docket referenced at the beginning of this notice. During the three full years the new hours of service regulations have been in place (2004, 2005, and 2006), J.B. Hunt has seen a 4% decline in its preventable DOT recordable accident rate * * *. In addition, many accident types that could be fatigue related have seen a marked decline in a comparison of the same time frames: Jacknife—down 61.76%; Ran Traffic Control—down 24.53%; Rollaway—down 50%; and Roll Over—down 8.94%. Similarly, J.B. Hunt has seen a significant reduction in driver out-of-service rates related to hours of service in the comparative periods, an average 9.3% drop. There were many additional affidavits from safety managers of large U.S.-based trucking companies who attested to the same positive impact on crash rates since the new HOS rules became effective. These statements are also generally consistent with FARS, TIFA, and other data analyzed by FMCSA, and all serve to consistently indicate that the operating environment since January 2004 under the new HOS rules is generally as safe or safer than the conditions before implementation of the 2003 rule. Operational Data on 11-Hour Limit and 34-Hour Restart To better understand how the motor carrier industry has implemented the 2005 HOS rule and to get a current update on the use of various provisions, FMCSA compiled and reviewed several new data sets on the industry's current use of the 34-hour restart provision and the 11th hour of driving, and on average weekly hours worked after implementation of the 2005 rule. Data compiled or reviewed were obtained from:

(1)The 2005 and 2007 FMCSA Field Surveys;

(2)ATA's operations survey of its members in 2007; and

(3)industry operations data filed in the D.C. Circuit by ATA in 2007. 2005 and 2007 FMCSA Field Data Collection Efforts In October 2007, FMCSA initiated a data collection effort by its field staff in connection with compliance reviews 7 and safety audits 8 to assess the specific operational ways the motor carrier industry has implemented and used the 2003/2005 HOS rule. The data collected were based upon the drivers' records of duty status or time records, and included the period April 2007 through November 2007. (Motor carriers are only required to maintain records of duty status for six months.) The data show that drivers are using the 11 th hour of driving time somewhat more often than in the comparable 2005 survey, but few are using the full 11 hours of driving time and none are utilizing the maximum driving and on-duty time allowed by the rule. In addition, most drivers are taking restart periods that far exceed the 34-hour minimum. 7 A compliance review is an in-depth review of a motor carrier's compliance with the Federal Motor Carrier Safety Regulations (49 CFR parts 380 to 399) and Hazardous Materials Regulations (49 CFR parts 100 to 180), as applicable. Motor carriers are selected for a compliance review based upon poor safety performance or receipt of a non-frivolous complaint, or in follow-up to previous compliance/enforcement actions. 8 A safety audit, on the other hand, is a review of the carrier's safety-management practices and controls and is conducted within the first 18 months of the motor carrier beginning interstate operations. The safety audit is used to both educate the carrier and gather data to evaluate and determine whether the carrier has in place basic safety management controls to ensure safe operation of CMVs. The survey results are based upon data collected from a cross-section of industry in compliance reviews and safety audits; driver records from both private and for-hire motor carriers were included, as well as truckload and less-than-truckload carriers. A similar effort was undertaken in late 2004 and early 2005 and discussed in the 2005 HOS rule. A copy of the 2005 and the 2007 FMCSA field data collection reports are in the docket referenced at the beginning of this notice. The most recent project was conducted in conjunction with normal motor carrier review activities during the period of October 22, 2007, to November 16, 2007, and where appropriate, results from the 2007 effort were compared to FMCSA's 2005 Field Survey results. To ensure the quality of the data collected, the Agency excluded drivers who were found to have falsified their records. Overall, daily driving, weekly on-duty, and restart period data were collected from 1035 drivers operating for 337 motor carriers. The majority of the enforcement actions reviewed (70 percent) as part of this data collection effort consisted of compliance reviews; while 30 percent involved a safety audit. By comparison, in 2005, 81 percent of the activity involved a compliance review, with 19 percent representing safety audits. Of the carriers surveyed in the most recent effort, 90 percent were classified as for-hire motor carriers, while 10 percent were private carriers. In the 2005 effort, of the 269 motor carriers reviewed, 85 percent were for-hire carriers. Of the drivers surveyed in 2007, 86 percent operated primarily beyond a 100 air-mile radius during the period reviewed, while 14 percent primarily operated within a 100 air-mile radius. By comparison, in 2005 approximately 80 percent of drivers reviewed were classified as over-the-road OTR drivers. It should be noted that in the 2005 effort, an over-the-road driver was defined as a driver who did not return to the terminal (work-reporting location) or home nightly. The definitions were changed slightly in 2007 to “within” and “beyond” a 100 air-mile radius to allow for a more explicitly defined difference between driver types. This made it easier for FMCSA investigators to catalogue drivers in one of two groups, and FMCSA Field managers believed the change in definitions would not significantly impact the data obtained in each of the two efforts. *Results:* The data collected in the 2007 effort revealed the following: *Restart Period.* Of the 1035 drivers included in the data collection, 869 drivers (84 percent) had at least one continuous off-duty period equal to or greater than 34 hours in length during the typical work week. Of the 542 drivers included in the 2005 survey, 393 (or 73 percent) of all drivers surveyed took at least one restart period during the period evaluated. Looking at the length of all the restart periods recorded in the 2007 survey (1,925), 8 percent were exactly 34 hours, while 5 percent were between 34-36 hours, 22 percent were between 36 and 44 hours, and 65 percent exceeded 44 hours. The 2005 survey results were fairly similar, in that 5 percent of restart periods were exactly 34 hours, 6 percent were between 34-36 hours, 22 percent were between 36 and 44 hours, and 68 percent exceeded 44 hours, although it should be noted that the 2007 data indicates that 8 percent of periods are exactly 34 hours duration (versus 5 percent in 2005). In 2007, FMCSA added a new variable to the data collection effort; specifically, the day of week that the restart period began. The distribution was as follows: 16 percent occurred on Monday, 10 percent on Tuesday, 10 percent on Wednesday, 11 percent on Thursday, 23 percent on Friday, 18 percent on Saturday, and 12 percent on Sunday. Thus, the 2007 data revealed that 53 percent of the restarts began between Friday and Sunday. Of these restart periods of 72 hours or less (or what is typically considered a “true” restart), the average number of hours each restart period is 49 hours. In other words, while the restart provision is being used by drivers, the average restart period is far longer than 34 hours. *11th Hour Driving.* Of the 16,676 driving periods 9 reviewed in the 2007 effort, 27 percent involved the 11th hour of driving, while 4 percent involved driving beyond the 11th hour (in the last case, the daily driving hour limits either do not apply (e.g., drivers operating in intrastate commerce under State rules) or the drivers were in violation of the rule). In the 2005 effort, FMCSA found that approximately 17 percent of driving periods involved the 11th hour, while 4 percent of driving periods exceeded the 11th hour of driving. 9 A driving period for this study was any work period after the driver had 10 or more consecutive hours off duty. Looking just at the driving periods of the “beyond 100 air-mile” drivers in the 2007 survey, FMCSA found that 27 percent of these driving periods involved the 11th hour of driving, with 4 percent involved driving beyond the 11th hour. The 2005 results showed that 23 percent of the driving periods of over-the-road drivers exceeded 10 hours. The percentage of daily driving periods involving the 11th hour for the “within 100 air mile” drivers in the 2007 survey equaled 25 percent, with another 10 percent operating beyond the 11th hour, leading FMCSA to conclude that this sample of “within 100 air mile” drivers may not be representative of short-haul drivers in the industry overall. Results from the 2007 FMCSA Field Survey are generally consistent with results from the 2005 effort, although driving in the 11th hour is somewhat higher in 2007 then in 2005 (i.e., 27 percent versus 17 percent). However, this is to be expected as the provision remains in place and available for use by industry over a longer time period. ATA Operational Usage Survey of Members ATA conducted a survey of its members in August 2007, requesting data on usage of two important provisions of the 2003/2005 HOS rule; namely, the availability of the 11th driving hour and the restart provision. A copy of the ATA survey is in the docket referenced at the beginning of this notice. Data compiled for the study was for the month of June 2007. Information was gathered from 69 motor carriers, representing several industry segments, most frequently the truckload and less-than-truckload segments. The number of drivers represented by these companies total approximately 234,000, or roughly 8 percent of the 3 million professional truck drivers that were estimated to be operating in the 2005 HOS regulatory impact analysis. The survey sample was considered to be quite large. The survey asked about usage of the 11th hour of driving by participating companies. Companies surveyed indicated that 46 percent of their drivers were using the 11th driving hour, and that the 11th driving hour was used an average of 8.42 times during the (30-day) month of June. To examine the number of daily trips by all drivers in the month of June that utilized the 11th hour of driving, we multiplied the 46 percent by 8.42 and arrived at an average daily use of the 11th driving hour by all drivers of 3.87 (or roughly 4) times per month. Dividing this result by 30 days in the month of June indicates that on average, 13 percent of daily trips utilized the 11th hour. Alternatively, one could divide by 22 working days in the month (i.e., assuming four 2-day weekend breaks during the month), which would indicate the 11th driving hour is used in 18 percent of daily driving trips. For validation purposes, FMCSA compared the ATA results to those generated by the Agency in its regulatory impact analysis for the 2005 HOS rule. These results are generally consistent with the estimates derived from operational modeling conducted by FMCSA for the 2005 HOS regulatory impact analysis, which had estimated that 55 percent of commercial drivers used the 11th hour of driving in 28 percent of their daily on-duty periods, yielding an average use of the 11th driving hour in approximately 15 percent of trips. 10 Additionally, data from the 2005 FMCSA Field Survey indicated that the 11th driving hour was used in 16.2 percent of daily on-duty periods, while the FMCSA's 2007 Field Survey data revealed that 27 percent of daily on duty periods recorded by drivers utilized the 11th hour of driving. Data from Schneider National, Inc. indicated that the 11th hour was used in only 10.7 percent of daily on-duty periods. Compared with other estimates regarding use of the 11th driving hour, FMCSA finds the latest ATA results are generally consistent with earlier findings and reveal that the 11th hour is being used by commercial drivers for operational flexibility. 10 In its regulatory impact analysis accompanying the 2005 HOS Rule, and as part of a broader sensitivity analysis, FMCSA also assumed higher usage levels of the 11th driving hour to determine the impact of its assumptions on the cost-benefit analysis results. Regardless of the assumptions made regarding usage of the 11th hour of driving, FMCSA found that eliminating the 11th hour driving provision was not cost beneficial. Regarding usage of the 34-hour restart, ATA survey respondents indicated that 65 percent of their drivers utilized the provision, and those that did, used it an average of 3.41 times per month. In its 2005 Field Survey data, FMCSA found that 73 percent of drivers used the restart provision at least once a week. It its 2007 Field Survey, FMCSA indicated that 90 percent of drivers included in the data collection had taken at least one extended off duty (restart) period of at least 34 hours, with the vast majority of drivers taking many more than the minimum 34 hours. In data collected prior to the 2005 rule, the OOIDA reported that almost 90 percent of drivers surveyed used the restart provision at least some of the time. 11 In a survey of private fleets in 2004, Stephen Burks reported that drivers for private carriers used the restart provision in 61 percent of their runs. 12 Depending on which specific source of data is used, the most recently published information regarding use of the restart provision is generally consistent with other information filed by researchers, associations, and others shortly before implementation of the 2005 HOS rule. The most recently published information regarding use of the restart provision indicates that industry is using the restart provision to provide operational flexibility. 11 John H. Siebert, “A Survey of Owner-Operators and Company Drivers on their Use of Three New ‘Hours of Service Features,’ ” OOIDA Foundation, September 15, 2004. 12 Stephen V. Burks, A Survey of Private Fleets on their Use of Three New ‘Hours of Service Features,’ ” September 15, 2004. Carrier Information Filed With ATA Motion Mr. Greer Woodruff, 13 Senior Vice President of J.B. Hunt, stated in an affidavit filed with ATA's Motion for Stay with the D.C. Circuit, that “In terms of usage, J.B. Hunt drivers engaged in nationwide truckload operations on average use the 11th hour or some portion of it about 10.8% of their daily driving days (approximately 3 times per month). When used, the operations within the 11th hour averaged approximately 40 minutes. While this number is relatively modest, the importance of the availability of the 11th hour for scheduling purposes cannot be overstated.” Mr. Tom Anderson, 14 Director of Safety and Training for Interstate Distributor Company (IDC), a large truckload carrier based in Tacoma, Washington, attested to similar usage of the 11th driving when he filed his declaration. In a random audit of 300 company drivers, Mr. Anderson states that his drivers used the 11th driving hour only 3.1 to 3.7 times per month, or that consistent with J.B. Hunt's usage of the provision and other estimates mentioned earlier in this section. Also, Mr. Woodruff of J.B. Hunt states that, “The 11th hour has allowed J.B. Hunt and our drivers to more efficiently use their daily drive time with only a modest increase (about 1.8%) in average daily driving hours and with less concern about an hours-of-service violation or being stranded in an inappropriate location.” The information submitted by Mr. Woodruff regarding use of the 11th driving hour is consistent with estimates from other sources and those used in the 2005 RIA for the HOS rule, as discussed in earlier sections of this preamble. All of these data indicate that the 11th driving hour in particular is an important provision to the industry in terms of allowing drivers to maintain operational flexibility. 13 See Tab M of the ATA Motion's Addendum to read Mr. Woodruff's affidavit. It is in the docket referenced at the beginning of this notice. 14 See Tab B of the ATA Motion's Addendum to read Mr. Anderson's affidavit. It is in the docket referenced at the beginning of this notice. FMCSA Decision to Re-Adopt the 11-Hour Limit and 34-Hour Restart FMCSA concludes it is necessary to re-adopt the 11-hour driving limit and 34-hour restart provisions to avoid significant and costly disruption of existing industry practices while ensuring that the actions and underlying safety analysis are available for comments from all interested parties before issuing a final rule. The Agency made this decision based on its evaluation of new safety and operational data, additional analysis and modeling of the relationship between hours of driving and fatigue-related large truck crashes, discussion of the concept of cumulative fatigue in the context of driving activity, and the collection and evaluation of new data on the benefits and costs of the 11-hour driving limit and the 34-hour restart provisions, and the affidavits and declarations from some of America's largest trucking companies. G. Regulatory Analyses and Notices *Administrative Procedure Act* . The FMCSA has determined that it has good cause under 5 U.S.C. 553(b) to adopt this interim final rule without prior notice and opportunity for comment and under 5 U.S.C. 553(d) to make the IFR final less than 30 days after publication. Specifically, the agency finds that notice and comment are both “impracticable” and “contrary to the public interest” pursuant to § 553(b). In order to avoid the huge administrative and operational burden that would be imposed on State enforcement agencies and motor carriers and drivers by the issuance of the Court's mandate at the end of December, this rule must be issued without normal notice and comment procedures. In addition, the variety of State HOS standards that would exist in the absence of this IFR, along with the influx of the 106,000 additional drivers that FMCSA estimates will be needed to handle current freight volume, could offset safety gains made since 2003 (as identified in section F of this IFR), which would obviously be contrary to the public interest. The 2005 rule includes a provision stating that “[a]ny regulations on hours of service of drivers in effect before April 28, 2003, which were amended or replaced by the final rule adopted on April 28, 2003 [69 FR 22456] are rescinded and not in effect” (§ 395.0). Because the D.C. Circuit did not address the meaning of this provision, either in *OOIDA* v. *FMCSA* or in its order responding to FMCSA's support of ATA's motion for a stay, the interaction between § 395.0 and the law of the Circuit has created significant doubt whether any daily driving limit would exist when the Court's mandate issues. The Agency must now adopt an IFR to forestall the confusion and uncertainty that would otherwise occur within the motor carrier industry, interfering with efforts to restore an orderly HOS regime. There are precedents in the D.C. Circuit for the proposition that vacatur of a rule leaves a vacuum which the Agency must fill. There are other precedents holding that vacatur automatically restores the prior rule, if any. It is therefore unclear—absent an IFR—whether there would be any daily driving limit in effect when the Court's mandate issues, since § 395.0 rescinded all pre-2003 daily driving limits, or whether the limit would be 10 hours. (The 34-hour restart provision would necessarily disappear upon issuance of the Court's mandate because there was no restart rule in effect before April 28, 2003, that could be rescinded by § 395.0 or restored by the Court's decision.) The problem is further complicated by the fact that, after the D.C. Circuit vacated the entire 2003 rule [ *Public Citizen* v. *FMCSA* , 374 F.3d 1209 (D.C. Cir. 2004)], Congress restored the vacated rule until FMCSA issued a new rule addressing the issues raised by the Court's 2004 decision, or September 30, 2005, whichever occurred first. [Section 7(f) of the Surface Transportation Extension Act of 2004, Part V, Public Law 108-310, 118 Stat. 1144, at 1154.] The meaning of the D.C. Circuit precedents restoring a prior rule upon vacatur of a challenged provision is unclear when, as here, the daily driving limit immediately preceding the 11-hour limit adopted by FMCSA in 2005 and vacated in 2007, was the same 11-hour limit (restored by the Surface Transportation Extension Act). FMCSA has therefore determined that it would be contrary to the public interest not to issue an IFR that forestalls the confusion attendant upon issuance of the Court's mandate and establishes clearly the HOS rules drivers and motor carriers must follow. Neither FMCSA and its State enforcement partners nor the motor carrier industry could adapt quickly enough to a 1-hour reduction in driving time and elimination of the 34-hour restart at the end of the stay granted by the Court to ensure orderly enforcement and compliance. Both the enforcement community and the regulated entities need a substantial amount of time to come to terms with such significant changes in the HOS rules, especially changes that make enforcement more complex and compliance more expensive. Furthermore, after committing substantial resources to reviewing recent safety data following the Court's September 28 stay, FMCSA has become convinced that reversion to a prior regulatory regime (and possibly no regulation at all) would likely offset some of the large-truck safety gains made on America's highways since 2003 and that an IFR is needed to preserve the current rules while seeking public comment. Millions of CMV drivers are subject to FMCSA's HOS rules. Because the Agency's enforcement staff is relatively small, adequate enforcement of the rules requires partnership with State officials through the Motor Carrier Safety Assistance Program (MCSAP) [49 CFR part 350]. FMCSA provides annual MCSAP grants to States that agree to adopt and enforce as State laws or regulations, motor carrier safety regulations which are compatible with the FMCSRs. For State safety regulations applicable to CMVs operating in interstate commerce, “compatible” regulations must be identical to, or have the same effect as, the FMCSRs. All of the States, the District of Columbia, Puerto Rico, and the U.S. Territories accept MCSAP funds and enforce compatible laws or regulations, including hours-of-service rules. The States have approximately 10,000 officers available for enforcement of State safety regulations compatible with the FMCSRs. These officers account for 95% of FMCSA's available enforcement resources; they conduct 96% (3.1 million) of the roadside inspections per year. MCSAP grantees use different methods of adopting compatible laws and regulations: Of the 50 States and the District of Columbia, 23 jurisdictions automatically adopt any FMCSA safety rule as a State regulation, 22 use an administrative process, and 6 require action by the State legislature. In order to accommodate these various adoption methods, 49 CFR 350.331(d) of the MCSAP rules allow States 3 full years after the effective date of an FMCSA to rule to adopt a compatible State rule. States typically adopt safety-related rules as soon as possible, but adoption is not simultaneous among the States. When FMCSA promulgated a new hours-of-service rule on April 23, 2003, it adopted a compliance date of January 4, 2004, more than 8 months after its publication. More than 9,000 State enforcement officers were trained on the requirements of the new hours-of-service rule between October and the end of December 2003, either by FMCSA directly or by State personnel trained by FMCSA. States amended their operations manuals and enforcement guidelines to implement the new rules. Similarly, FMCSA and the States reprogrammed computers as necessary to ensure that hand-held devices used at roadside and office systems tracked the new HOS rules. The same process would be needed to prepare for enforcement of an HOS rule with a 10-hour driving limit and without 34-hour restart provision. States that use administrative or legislative processes to adopt safety regulations compatible with Federal regulations would require an amount of time similar to that required to adopt new hours-of-service regulations. Additionally, all of the officers trained on the 11-hour driving limit and the 34-hour restart provision in the fall and early winter of 2003 would have to be re-trained on the previous rules. Experienced officers may be able to adapt to the previous rules without much difficulty, but newly hired officers who have never worked with the previous regulatory regime would require full-scale training. State agencies would have to amend, print, and distribute manuals and enforcement guidelines before re-training could begin. Computers—both the hand-held devices often used at roadside and the larger machines used by the central office of the enforcement agency—would have to be re-programmed. Enforcement would suffer during the transition period. Re-training would take officers away from their safety activities at roadside. Officers would need to work overtime to maintain the same level of enforcement, or those activities would have to be reduced for a time, with the result that unsafe motor carriers and drivers would have a better chance of escaping detection. If the provisions of the pre-2003 hours-of-service rules were reinstated after the stay expires, nationwide enforcement would be far from uniform. Some States would automatically adopt the Federal rule (but even their officers would require re-training before enforcement could begin), while others would continue to operate under the 2005 rule until the State legislature acted or an administrative process was completed. The resulting nationwide patchwork of regulations would render effective enforcement problematic. In view of the legal challenges to Federal hours-of-service rules in the last few years, States may be less inclined to adopt the latest Federal rule quickly, preferring to wait and see whether further changes are made that would affect their training and enforcement. The pattern of State hours-of-service regulations could therefore change from month to month, and might remain inconsistent for up to three full years as allowed by 49 CFR 350.331(d). The patchwork of regulations would create uncertainty about the HOS standard applicable during a trip. In fact, a driver could be subject to several different State rules in the course of a few hours. Adding to the confusion is the fact that FMCSA would have to evaluate driver HOS records under the rules mandated by the Court's decision during compliance reviews of motor carriers, while driver HOS records would be evaluated under State regulations at roadside inspections in States that do not immediately conform their rules to the Federal standard. The extent to which the 11-hour driving limit and the 34-hour restart are being used varies widely among industry segments, motor carriers, and individual drivers, but the sudden loss of these provisions would have a noticeable effect on many carriers and drivers and a substantial impact on some. We estimated that the loss of the 11-hour driving limit and the 34-hour restart would cost the industry about $2.1 billion per year, of which $1.6 billion would be attributable to the 34-hour restart and $500 million to the 11th hour of driving. See RIA in the docket for more details. By subtracting the estimated $125 million of safety benefits, the net annual cost to the industry would be approximately $2 billion. This cost is due to a 7 percent reduction in labor productivity for motor carriers due to loss of the 11th driving hour and the 34-hour restart provision. In the absence of an IFR, all motor carriers would have to revise their operational procedures immediately and many would have to purchase new equipment and hire more drivers (FMCSA estimates 106,000 additional drivers in the RIA), a significant burden in a huge and diverse industry. This would imply that the 106,000 additional drivers would cause additional congestion on America's highways. In an affidavit filed with the D.C. Circuit with ATA's motion for stay of the mandate in *OOIDA* v. *FMCSA* , the Senior Vice President of Corporate Safety and Security for J.B. Hunt, the 11th largest for-hire motor carrier in the industry in 2006, estimated that it would take his company “a minimum of 6 months * * * to make a proper transition to an hours of service regulation that does not include the 11 and 34 hour provisions, including time to undertake computer programming changes, system testing, engineering design and simulations, education of shippers/receivers, training of over 13,500 drivers and 2,000 non-driver personnel, hiring of additional drivers and the acquisition of additional equipment” (Greer Woodruff, 15 September 4, 2007). 15 See Tab M of the ATA Motion's Addendum to read Mr. Woodruff's affidavit. It is in the docket referenced at the beginning of this notice. The Executive Vice President of PeopleNet, which offers trucking customers an electronic system for maintaining and tracking driver logs, also filed an affidavit with the ATA petition. He reported that, “[e]ven with the leading edge technology platform that PeopleNet manages and the patented, Over-The-Air-Programming technology that allows for expedient deployment of code to all Onboard users, it would take approximately four to six months to design, test, and roll-out new software that is fully compliant with the elimination of the 34-hour restart provision and the eleven hour permitted driving time and provides the driver with the needed compliance assistance provided today” (Brian McLaughlin, 16 September 6, 2007). 16 See Tab G of the ATA Motion's Addendum to read Mr. McLaughlin's declaration. It is in the docket referenced at the beginning of this notice. Old Dominion Freight Lines, which redesigned its operations to better utilize the rules adopted in 2003, reported that elimination of the 34-hour restart for its pickup and delivery drivers could lead to “increased labor needs of 20% or in Old Dominion's case require the recruiting, hiring and training of over 600 drivers. In our industry the safety record of new drivers in their first year of work is not as good as that of experienced drivers. In 2006, Old Dominion had 1,971 accidents. Drivers in their first year made up 12% of the driver workforce, yet they had 526 or 27% of the total accidents” (Affidavit, Brian J. Stoddard, 17 August 31, 2007). The Frozen Food Express Group

(FFEG)made the same point: “FFEG's experience shows that drivers in their first year of driving are about 3 times more likely than a veteran driver to be involved in an accident” (Affidavit, David Hedgepeth, 18 September 4, 2007). 17 See Tab K of the ATA Motion's Addendum to read Mr. Stoddard's affidavit. It is in the docket referenced at the beginning of this notice. 18 See Tab E of the ATA Motion's Addendum to read Mr. Hedgepeth's affidavit. It is in the docket referenced at the beginning of this notice. The transportation manager for Cemex, the largest cement manufacturer in North America, reported that its drivers use the 34-hour restart to “re-set” their clocks during bad weather, when concrete cannot be poured. “Because the elimination of the 34-hour restart provision would curtail the flexibility that Cemex needs to supply its customers, Cemex would need to hire additional truck drivers if that provision were eliminated. It is very difficult to find good, qualified drivers, and Cemex would not be the only company competing for these limited driver resources. * * * The third-party carriers that Cemex uses to ship some of its cement would also be affected by the 34-hour restart provision. Those carriers would be competing with Cemex to hire additional drivers” (Affidavit, George Caine, 19 September 5, 2007). 19 See Tab D of the ATA Motion's Addendum to read Mr. Caine's declaration. It is in the docket referenced at the beginning of this notice. FMCSA believes that the problems described by J.B. Hunt, PeopleNet, Old Dominion, and Cemex would affect most motor carriers, in varying degree. All carriers would need to retrain drivers and support personnel if the driving time-limit were immediately reduced to 10 hours and the 34-hour restart were eliminated. Technological changes would be more burdensome for carriers that have invested heavily in computer-based management, tracking and communications systems. The need for new drivers and vehicles to handle the existing workload would depend on the extent to which a carrier and its drivers had utilized the 11-hour driving limit and the 34-hour restart. Despite uncertainties, FMCSA believes that all of these challenges would occur and that they would be seriously disruptive if they converged at the end of the 90-day stay granted by the Court. As demonstrated elsewhere in the preamble, this rule fully addresses the legal shortcomings identified in *OOIDA* v. *FMCSA.* Because the Court did not vacate the 11-hour driving limit or the 34-hour restart for reasons related to safety, but only because of procedural flaws, FMCSA's resolution of those flaws in this rule, combined with the impracticability of immediately establishing, enforcing, and complying with a new regulatory regime upon expiration of the Court's 90-day stay, compels the conclusion that the Agency has good cause to issue this rule without prior notice and comment. Motor carriers that need more drivers to compensate for reduced driving time may not be able to find them, and even if new drivers are located, their inexperience may cause additional crashes and offset gains made in highway safety since 2003. The crash and compliance data that has become available since the 2005 HOS rule was issued show that operational safety under the 2003/2005 rules have not been degraded and in some cases, data indicate improvement. Furthermore, the degree of disruption to the motor carrier industry caused by a sudden, major regulatory change could be serious enough to interfere with the timely delivery of some products. That risk is greater today than at any time in the past because of the widespread use in the American economy of “just-in-time” delivery as a method of reducing the overhead costs associated with warehousing. Disruptions in the supply chain caused by truckers' inability immediately to comply with a new HOS rule, to say nothing of an increase in crashes and congestion associated with 106,000 inexperienced drivers hired to satisfy a new HOS rule, would be contrary to the public interest, especially when the economy is already fragile due to the decline in housing starts and the financial pressure caused by non-performing subprime mortgages. The disruption to enforcement, operations, and compliance that justify an IFR also provide good cause to make the IFR final upon publication, before the end of the 90-day stay. Congressional Review Act Because FMCSA has determined that it has good cause under 5 U.S.C. 553(b) to adopt this rule without prior notice and opportunity for comment, the 60-day delay required by the Congressional Review Act before a major rule can become effective [see 5 U.S.C. 801(a)(3)] is not applicable and this rule can take effect on a date determined by the Agency [see 5 U.S.C. 808(2)]. FMCSA has established December 27, 2007, as the effective date of this rule. Executive Order 12866 The FMCSA has determined that this action is an economically significant regulatory action within the meaning of Executive Order 12866, This interim rule reinstates those provisions vacated by the Court as of December 27, 2007. The Agency has prepared a regulatory impact analysis analyzing the interim rule. A copy of the regulatory analysis document is included in the docket referenced at the beginning of this notice. The Office of Management and Budget

(OMB)has reviewed this document. Regulatory Flexibility Act Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA is not required to prepare a final regulatory flexibility analysis under 5 U.S.C. 604(a) for this interim final rule because the Agency has not issued a notice of proposed rulemaking prior to this action. However, FMCSA believes the RFA impacts of this IFR were adequately described by the 2005 final rule. Unfunded Mandates Reform Act of 1995 This IFR will not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, *et seq.* ), that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $128.1 million or more in any one year. Paperwork Reduction Act This final rule does not alter the existing information collection requests for HOS recordkeeping. National Environmental Policy Act FMCSA has prepared an environmental assessment

(EA)in accordance with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321, *et seq.* , as amended), the FMCSA's NEPA Implementing Procedures and Policy for Considering Environmental Impacts (FMCSA Order 5610.1), 20 the Council on Environmental Quality Regulations

(CEQ)regulations implementing NEPA (40 CFR parts 1500-1508), the DOT Order 5610.C (September 18, 1979, as amended on July 13, 1982 and July 30, 1985), entitled “Procedures for Considering Environmental Impacts,” and other pertinent environmental regulations, Executive Orders, statutes, and laws for consideration of environmental impacts of FMCSA actions. The Agency relies on all of the authorities noted above to ensure that it actively incorporates environmental considerations into informed decisionmaking on all of its actions, including rulemaking. 20 FMCSA's environmental procedures were published on March 1, 2004 (69 FR 9680), FMCSA Order 5610.1, National Environmental Policy Act Implementing Procedures and Policy for Considering Environmental Impacts, and effective on March 30, 2004. As shown in the Environmental Assessment that accompanies this IFR, none of the alternatives considered would have a significant adverse impact on the human environment. Subsequently, FMCSA has determined that this IFR will not significantly affect the quality of the human environment and that a comprehensive Environmental Impact Statement is not required. The EA for this IFR, as well as the Agency's finding of no significant impact (FONSI), are contained in the docket referenced at the beginning of this notice. Executive Order 13132 (Federalism) This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. The FMCSA has determined this rule does not have a substantial direct effect on States, nor would it limit the policymaking discretion of the States. Nothing in this document preempts any State law or regulation. Executive Order 12372 (Intergovernmental Review) The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program. Executive Order 12630 (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. Executive Order 12988 This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform. List of References Most of the research studies cited in this interim rule are included in the List of References in the 2005 final rule (70 FR 49978, at 50067). Copies or abstracts of the 2005 referenced studies, as well as newer research studies published after the 2005 rule, new safety and operational data, affidavits and declaration of trucking company executives, and the Regulatory Impact Analysis cited in this interim rule are in the docket referenced at the beginning of this notice. List of Subjects 49 CFR Part 385 Administrative practice and procedure, Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements. 49 CFR Part 395 Highway safety, Motor carriers, Reporting and recordkeeping requirements. In consideration of the foregoing, FMCSA is amending 49 CFR parts 385 and 395 as follows. PART 385—SAFETY FITNESS PROCEDURES 1. The authority citation for part 385 continues to read as follows: Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5113, 13901-13905, 31136, 31144, 31148, and 31502; Sec. 350 of Pub. L. 107-87; and 49 CFR 1.73. 2. In Appendix B to part 385— a. Amend section II by removing paragraph (c); b. Amend section VII by removing the entries for §§ 395.3(a)(1), 395.3(c)(1), and 395.3 (c)(2); c. Amend section II by adding paragraph (c); d. Amend section VII by adding entries for §§ 395.3(a)(1), § 395.3(c)(1), and (c)(2) to read as follows: Appendix B to Part 385—Explanation of Safety Rating Process II. Converting CR Information Into a Safety Rating

(c)Critical regulations are those identified as such where noncompliance relates to management and/or operational controls. These are indicative of breakdowns in a carrier's management controls. An example of a critical regulation is § 395.3(a)(1), requiring or permitting a property-carrying commercial motor vehicle driver to drive more than 11 hours. VII. List of Acute and Critical Regulations § 395.3(a)(1) Requiring or permitting a property-carrying commercial motor vehicle driver to drive more than 11 hours (critical). § 395.3(c)(1) Requiring or permitting a property-carrying commercial motor vehicle driver to restart a period of 7 consecutive days without taking an off-duty period of 34 or more consecutive hours (critical). § 395.3(c)(2) Requiring or permitting a property-carrying commercial motor vehicle driver to restart a period of 8 consecutive days without taking an off-duty period of 34 or more consecutive hours (critical). PART 395—HOURS OF SERVICE OF DRIVERS 3. The authority citation for part 395 continues to read as follows: Authority: 49 U.S.C. 504, 14122, 31133, 31136, 31502; Sec. 229, Pub. L. 106-159, 113 Stat. 1748; Sec. 113, Pub. L. 103-311, 108 Stat. 1673, 1676; and 49 CFR 1.73. 4. In § 395.1— a. Remove paragraphs (e)(1)(iv)(A), (e)(2)(v), (g)(1)(i)(B), (g)(1)(ii)(B), (g)(2)(ii), and (o)(3). b. Add paragraphs (e)(1)(iv)(A), (e)(2)(v), (g)(1)(i)(B), (g)(1)(ii)(B), (g)(2)(ii), and (o)(3) to read as follows: § 395.1 Scope of rules in this part.

(e)* * *

(1)* * * (iv)(A) A property-carrying commercial motor vehicle driver does not exceed 11 hours maximum driving time following 10 consecutive hours off-duty; or

(2)* * *

(v)The driver does not drive more than 11 hours following at least 10 consecutive hours off-duty;

(g)* * *

(1)* * *

(i)* * *

(B)May not drive more than 11 hours following one of the 10-hour off-duty periods specified in paragraph (g)(1)(i)(A)( *1* ) through ( *4* ) of this section; and

(ii)* * *

(B)Calculation of the 11-hour driving limit includes all driving time; compliance must be re-calculated from the end of the first of the two periods used to comply with paragraph (g)(1)(ii)(A) of this section.

(2)* * *

(ii)The driving time in the period immediately before and after each rest period, when added together, does not exceed 11 hours;

(o)* * *

(3)The driver has not taken this exemption within the previous 6 consecutive days, except when the driver has begun a new 7- or 8-consecutive day period with the beginning of any off-duty period of 34 or more consecutive hours as allowed by § 395.3(c). 5. In § 395.3— a. Remove paragraphs (a)(1) and (c). b. Add paragraphs (a)(1) and

(c)to read as follows: § 395.3 Maximum driving time for property-carrying vehicles.

(a)* * *

(1)More than 11 cumulative hours following 10 consecutive hours off-duty; (c)(1) Any period of 7 consecutive days may end with the beginning of any off-duty period of 34 or more consecutive hours; or

(2)Any period of 8 consecutive days may end with the beginning of any off-duty period of 34 or more consecutive hours. Dated: December 10, 2007. John H. Hill, Administrator. [FR Doc. E7-24238 Filed 12-14-07; 8:45 am] BILLING CODE 4910-EX-P 72 241 Monday, December 17, 2007 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0333; Directorate Identifier 2007-NM-236-AD] RIN 2120-AA64 Airworthiness Directives; SAAB Model SF340A and Model 340B Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, the FAA has published Special Federal Aviation Regulation 88 (SFAR88) * * * [which] required * * * [conducting] a design review against explosion risks. The unsafe condition is the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by January 16, 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 W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations 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: Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1112; fax

(JAA)has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference

(ECAC)representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Relevant Service Information Saab has issued Service Bulletin 340-28-024, dated February 26, 2007; and Revision 01, dated May 21, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 218 products of U.S. registry. We also estimate that it would take about 80 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $12,900 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $4,207,400, or $19,300 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **SAAB Aircraft AB:** Docket No. FAA-2007-0333; Directorate Identifier 2007-NM-236-AD. Comments Due Date

(a)We must receive comments by January 16, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to SAAB Model SF340A and Model 340B airplanes, all serial numbers, certificated in any category. Subject

(d)Air Transport Association

(ATA)of America Code 28: Fuel. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, the FAA has published Special Federal Aviation Regulation 88 (SFAR88) in June 2001. In their Letters referenced 04/00/02/07/01-L296 dated March 4, 2002 and 04/00/02/07/03-L024, dated February 3, 2003, the JAA (Joint Aviation Authorities) recommended the application of a similar regulation to the National Aviation Authorities (NAA). Under this regulation, all holders of type certificates for passenger transport aircraft with either a passenger capacity of 30 or more, or a payload capacity of 7,500 pounds (3402 kg) or more, which have received their certification since January 1, 1958, are required to conduct a design review against explosion risks. This Airworthiness Directive, which renders mandatory the modification [3162] to separate wiring of Fuel Quantity Indication System, is a consequence of the design review. The unsafe condition is the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Modification 3162 includes parking (stowing) of the existing wiring to the FQIS, installing new wires with shields to the FQIS, and operational and functional tests of the FQIS. Actions and Compliance

(f)Within 72 months after the effective date of this AD, unless already done, do modification 3162 in accordance with the Accomplishment Instructions of Saab Service Bulletin 340-28-024, Revision 01, dated May 21, 2007. Actions done before the effective date of this AD in accordance with Saab Service Bulletin 340-28-024, February 26, 2007, are considered acceptable for compliance with the requirements of this AD. FAA AD Differences Note 1: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

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

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

(425)227-1112; fax

(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

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

(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

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

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

(h)Refer to MCAI EASA Airworthiness Directive 2007-0170, dated June 15, 2007; and Saab Service Bulletin 340-28-024, Revision 01, dated May 21, 2007; for related information. Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24326 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0335; Directorate Identifier 2007-NM-292-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Bombardier Aerospace has completed a system safety review of the CL-600-2B19 aircraft fuel system against new fuel tank safety standards, introduced in Chapter 525 of the Airworthiness Manual through Notice of Proposed Amendment

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Rocco Viselli, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone

(516)228-7331; fax

(516)794-5531. 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-2007-0335; Directorate Identifier 2007-NM-292-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://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 Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2007-23, dated October 18, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Bombardier Aerospace has completed a system safety review of the CL 600-2B19 aircraft fuel system against new fuel tank safety standards, introduced in Chapter 525 of the Airworthiness Manual through Notice of Proposed Amendment

(NPA)2002-043. The identified non-compliances were assessed using Transport Canada Policy Letter No. 525-001 to determine if mandatory corrective action is required. The assessment and lightning tests showed that certain fuel tube self-bonded couplings do not provide sufficient lightning current capability. The assessment also showed that single failure of the integral bonding wire of the self-bonded couplings or excessive axial clearance at the reducer ferrules of certain self-bonded couplings could affect electrical bonding between fuel tubes. Insufficient electrical bonding between fuel tubes or insufficient current capability of fuel tube couplings, if not corrected, could result in arcing and potential ignition source inside the fuel tank during lightning strikes and consequent fuel tank explosion. To correct the unsafe condition, this directive mandates the replacement of certain fuel tube couplings with redesigned couplings. For certain couplings, the replacement includes a detailed inspection for wear of the sleeve and coupling and applicable corrective actions (including installing new O-rings and sleeves). You may obtain further information by examining the MCAI in the AD docket. The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate

(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Relevant Service Information Bombardier has issued Service Bulletin 601R-28-054, Revision A, dated August 7, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 692 products of U.S. registry. We also estimate that it would take about 21 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $2,417 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,835,124, or $4,097 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Bombardier, Inc. (Formerly Canadair):** Docket No. FAA-2007-0335; Directorate Identifier 2007-NM-292-AD. Comments Due Date

(a)We must receive comments by January 16, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, certificated in any category, serial numbers 7003 through 7067, and 7069 through 7981. Subject

(d)Air Transport Association

(ATA)of America Code 28: Fuel. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: Bombardier Aerospace has completed a system safety review of the CL-600-2B19 aircraft fuel system against new fuel tank safety standards, introduced in Chapter 525 of the Airworthiness Manual through Notice of Proposed Amendment

(f)Within 5000 flight hours after the effective date of this AD, unless already done, replace fuel tube couplings inside the wing and centre fuel tanks with redesigned couplings, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 601R-28-054, Revision A, dated August 7, 2006. Do all applicable inspections and corrective actions before further flight. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

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

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, New York Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Rocco Viselli, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone

(516)228-7331; fax

(516)794-5531. 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)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget

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

(h)Refer to MCAI Canadian Airworthiness Directive CF-2007-23, dated October 18, 2007, and Bombardier Service Bulletin 601R-28-054, Revision A, dated August 7, 2006, for related information. Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24327 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0339; Directorate Identifier 2007-NM-182-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 757 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 757 airplanes. This proposed AD would require repetitive inspections of the anchor tab of the bulkhead seal assemblies of the wing thermal anti-ice

(TAI)system for cracks at certain outboard stations of the left and right wings, and corrective action if necessary. This proposed AD also provides optional terminating action for the repetitive inspections. This proposed AD results from reports of cracks found at the anchor tab of the bulkhead seal assemblies of the wing TAI system. In one incident the anchor tab and bulkhead seal assembly had separated because of the cracks. We are proposing this AD to prevent failure of the anchor tab of the bulkhead seal assembly, which in icing conditions could result in insufficient airflow to the wing TAI system, subsequent ice on the wings, and consequent reduced controllability of the airplane. DATES: We must receive comments on this proposed AD by January 31, 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: Barbara Mudrovich, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)917-6477; fax

(TAI)system on Boeing Model 757 airplanes. In one incident the anchor tab and bulkhead seal assembly had separated because of the cracks. The anchor tab of the bulkhead seal assembly was held in position with a bolt. If the anchor tab fails, the TAI spray tube disconnects from the TAI duct, and it could not supply sufficient airflow for the wing TAI system. If the flight is in icing conditions and there is insufficient airflow, it could cause ice to form on the wings. These conditions, if not corrected, could result in reduced controllability of the airplane. Relevant Service Information We have reviewed Boeing Special Attention Service Bulletins 757-30-0021 and 757-30-0022, both Revision 1, both dated June 13, 2007. The service bulletins describe procedures for repetitive detailed inspections for cracks of the anchor tab of the bulkhead seal assemblies of the wing TAI system at certain outboard stations of the left and right wings, and corrective action before further flight if necessary. The compliance time specified in the service bulletin for the initial inspection is before the accumulation of 20,000 total flight hours or within 36 months from the effective date on the service bulletin, whichever occurs later. The corrective action includes replacing the bulkhead seal assembly or installing new duct anchor support brackets if cracks are found. If the bulkhead seal assembly is replaced, but new support brackets are not installed, the inspections must be repeated until the existing brackets are replaced. Replacing the support brackets eliminates the need for the repetitive inspections. The compliance time for the repetitive inspections is at intervals not to exceed 6,000 flight hours; for airplanes on which the bulkhead seal assemblies are replaced, the inspection is repeated within 20,000 flight hours after the replacement, and thereafter at intervals not to exceed 6,000 flight hours. 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 929 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 530 airplanes of U.S. registry. The proposed inspection 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 $84,800, 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-2007-0339; Directorate Identifier 2007-NM-182-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by January 31, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to all Boeing Model 757-200, -200PF, -200CB, and -300 series airplanes, certificated in any category. Unsafe Condition

(d)This AD results from reports of cracks found at the anchor tab of the bulkhead seal assemblies of the wing thermal anti-ice

(TAI)system. In one incident the anchor tab and bulkhead seal assembly had separated because of the cracks. We are issuing this AD to prevent failure of the anchor tab of the bulkhead seal assembly, which in icing conditions could result in insufficient airflow to the wing TAI system, subsequent ice on the wings, 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/Corrective Action

(f)At the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 757-30-0021 or 757-30-0022, both Revision 1, both dated June 13, 2007, as applicable; except where the service bulletins specify starting the compliance time “* * * from the date on this service bulletin,” this AD requires starting the compliance time from the effective date of this AD: Perform detailed inspections for cracks of the anchor tab of the bulkhead seal assemblies of the wing TAI system at certain outboard stations of the left and right wings by doing all the actions, including all applicable corrective actions, in accordance with the Accomplishment Instructions of the applicable service bulletin. Do all applicable corrective actions before further flight. Optional Terminating Action

(g)Installing a new duct anchor support bracket adjacent to the bulkhead seal assemblies in accordance with Part 2 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-30-0021 or 757-30-0022, both Revision 1, both dated June 13, 2007, as applicable, ends the repetitive inspections required by paragraph

(f)of this AD. Credit for Actions Done According to Previous Issues of Service Information

(h)Actions accomplished before the effective date of this AD in accordance with Boeing Special Attention Service Bulletins 757-30-0021 and 757-30-0022, both dated August 15, 2006, are considered acceptable for compliance with the corresponding actions specified in this AD. 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.

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24329 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0270; Directorate Identifier 2007-NM-211-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 757-200, -200PF, and -200CB 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 757-200, -200PF, and -200CB series airplanes. This proposed AD would require doing an ultrasound inspection for disbonded tear straps not mechanically fastened to the skin, and related investigative and corrective actions, if necessary. This proposed AD results from reports indicating that bonded skin panels may not have been correctly anodized in phosphoric acid before the tear strap doubler was bonded to the skin. We are proposing this AD to detect and correct a weak bond between the skin and tear strap. Such disbonding could reduce the ability of the skin to resist cracks and could adversely affect the structural integrity of the airplane. DATES: We must receive comments on this proposed AD by January 31, 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, for the service information identified in this proposed AD. 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, FAA, Seattle Aircraft Certification Office, 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-2007-0270; Directorate Identifier 2007-NM-211-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 bonded skin panels may not have been correctly anodized in phosphoric acid before the tear strap doubler was bonded to the skin between stations 439 to 900, and 1180 to 1621, and between stringers 10 left and 10 right, on Boeing Model 757-200, -200PF, and -200CB series airplanes. The cause of the disbonded tear straps has been attributed to a manufacturing process error. A weak bond between the skin and tear strap, if not corrected, could reduce the ability of the skin to resist cracks and could adversely affect the structural integrity of the airplane. Relevant Service Information We have reviewed Boeing Special Attention Service Bulletin 757-53-0077, Revision 1, dated August 6, 2007. The service bulletin describes procedures for doing an ultrasound inspection for disbonded tear straps not mechanically fastened to the skin between stations 439 to 900, and 1180 to 1621, and between stringers 10 left and 10 right, and doing applicable related investigative and corrective actions. The related investigative actions include doing a high frequency eddy current inspection to detect cracks around the fasteners, and doing a low frequency eddy current inspection to detect corrosion on the surface, as applicable. The corrective actions include installing rivets to repair disbonding, and contacting Boeing for crack and/or corrosion repair, as applicable. The service bulletin also specifies the following compliance times for: • *Related investigative actions:* Before further flight. • *Corrective actions:* Before further flight or within 3,000 flight cycles after the disbonding is found, depending on the location of the disbond. 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 744 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 487 airplanes of U.S. registry. The proposed actions would take about 16 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 $623,360, or $1,280 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 adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-0270; Directorate Identifier 2007-NM-211-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by January 31, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Boeing Model 757-200, -200PF, and -200CB series airplanes, certificated in any category; as identified in Boeing Special Attention Service Bulletin 757-53-0077, Revision 1, dated August 6, 2007. Unsafe Condition

(d)This AD results from reports indicating that bonded skin panels may not have been correctly anodized in phosphoric acid before the tear strap doubler was bonded to the skin. We are issuing this AD to detect and correct a weak bond between the skin and tear strap. Such disbonding could reduce the ability of the skin to resist cracks and could adversely affect the structural integrity 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. Initial Inspection

(f)At the applicable initial compliance time in paragraph (f)(1) or (f)(2) of this AD, do an external ultrasound inspection for disbonded tear straps not mechanically fastened to the skin between stations 439 to 900, and 1180 to 1621, and between stringers 10 left and 10 right, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-53-0077, Revision 1, dated August 6, 2007.

(1)For airplanes with less than or equal to 21,000 total flight cycles: Before the accumulation of 24,000 total flight cycles, but no earlier than 18,000 total flight cycles.

(2)For airplanes with more than 21,000 total flight cycles: Within 3,000 flight cycles after the effective date of this AD. Repetitive Inspection

(g)If no disbonding is found during the ultrasound inspection required by paragraph

(f)of this AD, repeat the inspection once before 36,000 total flight cycles, but no earlier than 30,000 total flight cycles. Related Investigative and Corrective Actions

(h)If any disbonding is found during the ultrasound inspection required by paragraph

(f)or

(g)of this AD, do the applicable related investigative and corrective actions by accomplishing all the actions specified in the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-53-0077, Revision 1, dated August 6, 2007, at the applicable compliance time specified in 1.E., “Compliance,” of the service bulletin; except as provided by paragraph

(i)of this AD.

(i)If any crack and/or corrosion is found during any inspection required by this AD, and Boeing Special Attention Service Bulletin 757-53-0077, Revision 1, dated August 6, 2007, specifies to contact Boeing for appropriate action: Before further flight, repair the crack and/or corrosion using a method approved in accordance with the procedures specified in paragraph

(j)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.

(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 December 7, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24383 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0349; Directorate Identifier 2007-CE-094-AD] RIN 2120-AA64 Airworthiness Directives; EADS SOCATA Model TBM 700 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

(AD)for the products listed above that would supersede an existing AD. This proposed AD results from mandatory continuing airworthiness information

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: A non-respect of the pilot door adjustment procedure could have damaged the stop fitting and could result in a consequent depressurization of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by January 16, 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. 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, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. 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: Albert J. Mercado, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4119; facsimile:

(816)329-4090. 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-2007-0349; Directorate Identifier 2007-CE-094-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://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 6, 2007, we issued AD 2007-04-08, Amendment 39-14939 (72 FR 7559 February 16, 2007). That AD required actions intended to address an unsafe condition on the products listed above. Since we issued AD 2007-04-08, EADS SOCATA TBM Aircraft Mandatory Service Bulletin SB 70-131, Amendment 1, dated June 2007, was issued, which adds a procedure in the replacement of the stop fittings. The Direction générale de l'aviation civile (DGAC), which is the aviation authority for France, has issued AD No. F-2007-016, October 10, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: A non-respect of the pilot door adjustment procedure could have damaged the stop fitting and could result in a consequent depressurization of the airplane. This proposed AD requires you to inspect the pilot door locking stop fittings for correct length and replace any incorrect length pilot door locking stop fittings found. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information EADS SOCATA has issued TBM Aircraft Mandatory Service Bulletin SB 70-131, Amendment 1, dated June 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 157 products of U.S. registry. We also estimate that it would take about 4.5 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $15 per product. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $58,875, or $375 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-14939 (72 FR 7559, February 16, 2007), and adding the following new AD: **EADS SOCATA:** Docket No. FAA-2007-0349; Directorate Identifier 2007-CE-094-AD. Comments Due Date

(a)We must receive comments by January 16, 2008. Affected ADs

(b)AD 2007-04-08, Amendment 39-14939. Applicability

(c)This AD applies to Model TBM 700 airplanes, serial numbers 126 through 322, that are:

(1)equipped with a pilot door; and

(2)certificated in any category. Subject

(d)Air Transport Association of America

(ATA)Code 53: Fuselage. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: A non-respect of the pilot door adjustment procedure could have damaged the stop fitting and could result in a consequent depressurization of the airplane. This AD requires you to inspect the pilot door locking stop fittings for correct length and replace any incorrect length pilot door locking stop fittings found. Requirements Retained From AD 2007-04-08

(f)Unless already done, inspect the pilot door locking stop-fittings for correct length within 30 days after March 23, 2007 (the effective date of AD 2007-04-08). Do the inspection following EADS SOCATA TBM Aircraft Mandatory Service Bulletin SB 70-131, dated July 2005, or EADS SOCATA TBM Aircraft Mandatory Service Bulletin SB 70-131, Amendment 1, dated June 2007. New Requirements of This AD: Actions and Compliance

(g)Do the following actions, unless already done:

(1)Any incorrect length pilot door locking stop-fittings replaced following the inspection required in paragraph

(f)of this AD in accordance with AD 2007-04-08, using the original issue of EADS SOCATA TBM Aircraft Mandatory Service Bulletin SB 70-131, dated July 2005, must be replaced again within the next 12 months after the effective date of this AD. Do the replacement using EADS SOCATA TBM Aircraft Mandatory Service Bulletin SB 70-131, Amendment 1, dated June 2007.

(2)Any incorrect length pilot door locking stop-fittings found during the inspection required in paragraph

(f)of this AD and not previously replaced in accordance with AD 2007-04-08, must be replaced before further flight. Do the replacement using EADS SOCATA TBM Aircraft Mandatory Service Bulletin SB 70-131, Amendment 1, dated June 2007. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

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

(1)Alternative Methods of Compliance (AMOCs): The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Albert Mercado, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4119; fax:

(816)329-4090. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

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

(2)Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

(3)Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Special Flight Permit

(i)If you have ordered parts and they are not available, then you may fly unpressurized until parts become available or for a period not to exceed 90 days after the inspection required in paragraph

(f)of this AD, whichever occurs first. You must also fabricate and install a placard as described below. Completing the action of paragraph (g)(2) of this AD terminates the placard requirement.

(1)Fabricate (using letters at least 1/8 inch in height) a warning placard that states “This airplane is prohibited from pressurized flight.”

(2)Install the placard in full view of the pilot. The owner/operator holding at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Regulations (14 CFR 43.7) may install the placard as required in paragraph

(h)of this AD. Related Information

(j)Refer to MCAI Direction generale de l'aviation civile

(DGAC)AD No. F-2007-016, October 10, 2007; and EADS SOCATA TBM Aircraft Mandatory Service Bulletin SB 70-131, Amendment 1, dated June 2007, for related information. Issued in Kansas City, Missouri, on December 11, 2007. John R. Colomy, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24321 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0338; Directorate Identifier 2007-NM-139-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135BJ, -135ER, -135KE, -135KL, -135LR, -145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP 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 EMBRAER Model EMB-135BJ, -135ER, -135KE, -135KL, -135LR, -145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes. The existing AD currently requires reviewing the airplane maintenance records for recent reports of vibration from the tail section or rudder pedals. The existing AD also currently requires repetitively inspecting the skin, attachment fittings, and control rods of rudder II to detect cracking, loose parts, wear, or damage; and related investigative/corrective actions if necessary. This proposed AD would require the existing repetitive inspection to be done with new service information. This proposed AD also would require replacing the locking tab washers on the control rods of the rudder II and installing springs on the hinge assemblies of the rudder II, which would terminate the repetitive inspection requirements. This proposed AD results from reports of rudder vibration due to wear. We are proposing this AD to prevent failure of the rudder control rods, which could result in jamming of the rudder II, and possible structural failure and reduced controllability of the airplane. DATES: We must receive comments on this proposed AD by January 16, 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 Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil. 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: Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-2125; 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-2007-0338; Directorate Identifier 2007-NM-139-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 November 2, 2005, we issued AD 2005-25-04, amendment 39-14397 (70 FR 72902, December 8, 2005), for all EMBRAER Model EMB-135BJ, -135ER, -135KE, -135KL, -135LR, -145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes. That AD requires reviewing the airplane maintenance records for recent reports of vibration from the tail section or rudder pedals. That AD also requires repetitively inspecting the skin, attachment fittings, and control rods of rudder II to detect cracking, loose parts, wear, or damage; and related investigative/corrective actions if necessary. That AD resulted from reports of rudder vibration due to wear. We issued that AD to prevent failure of multiple hinge fittings, which could result in severe vibration, and to prevent failure of the rudder control rods, which could result in jamming of the rudder II; and possible structural failure and reduced controllability of the airplane. Actions Since Existing AD Was Issued Since we issued AD 2005-25-04, the Agĕncia Nacional de Aviação Civil (ANAC), which is the airworthiness authority for Brazil, issued Brazilian airworthiness directive 2005-09-02R2, effective May 10, 2007, to include updated procedures for the existing repetitive inspections and a terminating action for the repetitive inspections. Relevant Service Information EMBRAER has issued Alert Service Bulletin 145LEG-55-A010, Revision 02, dated May 16, 2006 (for Model EMB-135BJ airplanes); and 145-55-A036, Revision 03, dated May 16, 2006 (for Model EMB-135ER, -135KE, -135KL, -135LR, -145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes). (AD 2005-25-04 refers to EMBRAER Alert Service Bulletin 145LEG-55-A010, dated August 26, 2005; and 145-55-A036, Revision 01, dated September 5, 2005; as the appropriate sources of service information for accomplishing the required repetitive inspections). Revision 02 of EMBRAER Alert Service Bulletin 145LEG-55-A010 and Revision 03 of EMBRAER Alert Service Bulletin 145-55-A036 were issued to include more details for accomplishing the repetitive inspections. EMBRAER also has issued Alert Service Bulletin 145LEG-55-0011, Revision 01, dated January 23, 2007 (for Model EMB-135BJ airplanes); and 145-55-0038, Revision 01, dated January 23, 2007 (for Model EMB-135ER, -135KE, -135KL, -135LR, -145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes). The service bulletins describe procedures for replacing the locking tab washers on the control rods of the rudder II with new improved ones, and installing springs on the hinge assemblies of the rudder II. Accomplishment of these actions eliminates the need for the repetitive inspections specified in the service bulletins described previously. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The ANAC mandated the service information and issued Brazilian airworthiness directive 2005-09-02R2, effective May 10, 2007, to ensure the continued airworthiness of these airplanes in Brazil. EMBRAER Alert Service Bulletin 145LEG-55-A010, Revision 02, dated May 16, 2006, refers to EMBRAER Service Bulletins 145LEG-55-0008, Revision 02, dated May 26, 2006; and 145LEG-55-0009, Revision 01, dated November 23, 2005; as additional sources of service information for installing washers in the rudder II hinge fittings and control rod assembly. EMBRAER Alert Service Bulletin 145-55-A036, Revision 03, dated May 16, 2006, refers to EMBRAER Service Bulletins 145-55-0034, Revision 02, dated May 25, 2006; and 145-55-0035, Revision 02, dated March 28, 2006; as additional sources of service information for installing washers in the rudder II hinge fittings and control rod assembly. FAA's Determination and Requirements of the Proposed AD These airplanes are manufactured in Brazil 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. Pursuant to this bilateral airworthiness agreement, the ANAC has kept the FAA informed of the situation described above. We have examined the ANAC'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 2005-25-04 and would retain the requirements of the existing AD. This proposed AD would also require accomplishing the actions specified in the service bulletins described previously. Costs of Compliance 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 Records review (required by AD 2005-25-04) 1 $80 None $80 463 $37,040 Terminating action (new proposed action) 5 80 644 1,044 463 483,372 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 39-14397 (70 FR 72902, December 8, 2005) and adding the following new airworthiness directive (AD): **Empresa Brasileira de Aeronautica S.A. (EMBRAER):** Docket No. FAA-2007-0338; Directorate Identifier 2007-NM-139-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by January 16, 2008. Affected ADs

(b)This AD supersedes AD 2005-25-04. Applicability

(c)This AD applies to all EMBRAER Model EMB-135BJ, -135ER, -135KE, -135KL, -135LR, -145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes; certificated in any category. Unsafe Condition

(d)This AD results from reports of rudder vibration due to wear. We are issuing this AD to prevent failure of multiple hinge fittings, which could result in severe vibration, and to prevent failure of the rudder control rods, which could result in jamming of the rudder II; and possible structural failure and 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 2005-25-04 Records Review

(f)Within 5 days after December 23, 2005 (the effective date of AD 2005-25-04): Review the airplane maintenance records to determine whether any vibration from the tail section or rudder pedals was reported within 120 flight hours or 100 flight cycles before December 23, 2005. Inspection

(g)At the applicable time specified in paragraph (g)(1) or (g)(2) of this AD: Do a detailed inspection of the skin, attachment fittings, and control rods of rudder II to detect cracks, loose parts, wear, or damage. Inspect in accordance with the Accomplishment Instructions of EMBRAER Alert Service Bulletin 145LEG-55-A010, dated August 26, 2005 (for Model EMB-135BJ airplanes); or 145-55-A036, Revision 01, dated September 5, 2005 (for all other airplanes); except as provided by paragraph

(l)of this AD. Do all related investigative/corrective actions before further flight by doing all applicable actions specified in the service bulletin; except as required by paragraphs

(i)and

(l)of this AD. Repeat the inspection at intervals not to exceed 2,500 flight hours, except as required by paragraph

(h)of this AD.

(1)If any vibration was reported during the time period specified in paragraph

(f)of this AD, inspect within 2 days after the records review.

(2)If no vibration was reported during the time period specified in paragraph

(f)of this AD, except as required by paragraph

(h)of this AD, inspect before the later of:

(i)2,500 total accumulated flight hours.

(ii)600 flight hours or 500 flight cycles, whichever occurs first, after December 23, 2005. Note 1: For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as a mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.”

(h)If any vibration from the tail section or rudder pedals is reported after December 23, 2005, do the inspection specified in paragraph

(g)of this AD before the next flight. Repeat the inspection thereafter at intervals not to exceed 2,500 flight hours. Note 2: EMBRAER Alert Service Bulletin 145LEG-55-A010, dated August 26, 2005, and 145-55-A036, Revision 01, dated September 5, 2005; refer to EMBRAER Service Bulletins 145LEG-55-0008, Revision 01, dated January 14, 2005, 145LEG-55-0009, dated June 21, 2004, and 145-55-0034, Revision 01, dated January 14, 2005, as additional sources of service information for installing washers in the rudder II hinge fittings and control rod assembly. Exceptions to Service Bulletin Specifications

(i)Where EMBRAER Alert Service Bulletins 145LEG-55-A010 and 145-55- A036 specify to contact EMBRAER for repair instructions, operators must perform the repair before further flight using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the Departmento de Aviacao Civil (or its delegated agent).

(j)Although EMBRAER Alert Service Bulletins 145LEG-55-A010 and 145-55-A036 recommend sending a report of the inspection results to the manufacturer, this AD does not require a report. Credit for Prior Accomplishment of Earlier Service Bulletin

(k)For Model -135ER, -135KE, -135KL, -135LR, -145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes: Accomplishment of the inspection and applicable related investigative/corrective actions before December 23, 2005, in accordance with EMBRAER Alert Service Bulletin 145-55-A036, dated August 20, 2005, is acceptable for compliance with the corresponding requirements of this AD. New Requirements of This AD New Revision to Service Bulletins

(l)As of the effective date of this AD, use only the Accomplishment Instructions of EMBRAER Alert Service Bulletin 145LEG-55-A010, Revision 02, dated May 16, 2006 (for Model EMB-135BJ airplanes); or 145-55-A036, Revision 03, dated May 16, 2006 (for all other airplanes); as applicable; to do the actions required by paragraphs

(g)and

(h)of this AD, until the actions required by paragraph

(m)of this AD are done. Note 3: EMBRAER Alert Service Bulletin 145LEG-55-A010, Revision 02, dated May 16, 2006 (for Model EMB-135BJ airplanes) refers to EMBRAER Service Bulletins 145LEG-55-0008, Revision 02, dated May 26, 2006; and 145LEG-55-0009, Revision 01, dated November 23, 2005; as additional sources of service information for installing washers in the rudder II hinge fittings and control rod assembly. Note 4: EMBRAER Alert Service Bulletin 145-55-A036, Revision 03, dated May 16, 2006 (for EMB-135ER, -135KE, -135KL, -135LR, -145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes), refers to EMBRAER Service Bulletins 145-55-0034, Revision 02, dated May 25, 2006; and 145-55-0035, Revision 02, dated March 28, 2006; as additional sources of service information for installing washers in the rudder II hinge fittings and control rod assembly. Terminating Action

(m)Within 5,500 flight hours or 36 months after the effective date of this AD, whichever occurs first, replace the locking tab washers on the control rods of the rudder II and install springs on the hinge assemblies of the rudder II, in accordance with the Accomplishment Instructions of EMBRAER Alert Service Bulletin 145LEG-55-0011, Revision 01, dated January 23, 2007 (for Model EMB-135BJ airplanes); or 145-55-0038, Revision 01, dated January 23, 2007 (for all other airplanes); as applicable. Accomplishment of the replacement and installation constitutes terminating action for the requirements of this AD. Credit for Prior Accomplishment of Earlier Service Bulletins

(n)Actions done before the effective date of this AD in accordance with the Accomplishment Instructions of EMBRAER Alert Service Bulletin 145LEG-55-0011, dated May 12, 2006 (for Model EMB-135BJ airplanes); or 145-55-0038, dated May 12, 2006 (for all other airplanes); as applicable; are acceptable for compliance with the requirements of paragraph

(m)of this AD. Alternative Methods of Compliance (AMOCs) (o)(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.

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

(3)AMOCs approved previously in accordance with AD 2005-25-04 are approved as AMOCs for the corresponding provisions of this AD. Related Information

(p)Brazilian airworthiness directive 2005-09-02R2, effective May 10, 2007, also addresses the subject of this AD. Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24330 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0337; Directorate Identifier 2007-NM-111-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Model A319, A320, and A321 Series Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: During planned maintenance visit on two aircraft, corrosion was found on the upper surface of the wing lower skin panel N o 1, inside the Right Hand

(RH)inboard dry bay. It was discovered that [certain] access panels * * * had been omitted from the access requirements of the associated AMM (airplane maintenance manual) task (AMM 05-25-40) until the August 2001 revision. The result is that some * * * inspections may have not been fully accomplished due to non-removal of [certain] panels * * *. If the area has not been inspected with the correct access, and if AIRBUS Service Bulletin

(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 W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations 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 Dulin, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-2141; fax

(RH)inboard dry bay. It was discovered that access panels 540CZ, 540DZ, 640CZ and 640DZ had been omitted from the access requirements of the associated AMM (aircraft maintenance manual) task (AMM 05-25-40) until the August 2001 revision. The result is that some ZL-540-02-1 or ZL-540-02-2 (or ZL-540-02 and ZL-640-02) inspections may have not been fully accomplished due to non-removal of panels 540CZ, 540DZ, 640CZ and 640DZ. If the area has not been inspected with the correct access, and if AIRBUS Service Bulletin

(SB)A320-57-1121 has not been performed, then some aircraft could remain insufficiently inspected until the next scheduled inspection. This may result in a high risk of corrosion findings greater than level 1. Corrosion findings greater than level 1 in the wing could result in reduced structural integrity of the airplane. The corrective actions include an inspection for corrosion in the wing tank dry bay, and repair if necessary. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Airbus has issued Service Bulletin A320-57-1121, dated October 9, 2002. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 103 products of U.S. registry. We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $32,960, or $320 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Airbus:** Docket No. FAA-2007-0337; Directorate Identifier 2007-NM-111-AD. Comments Due Date

(a)We must receive comments by January 16, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Airbus Model A319, A320, and A321 series airplanes, certificated in any category, all certified models, all serial numbers, on which Maintenance Review Board Report

(MRBR)zonal tasks ZL-540-02 and ZL-640-02 (for MRBR up to Revision 7) or MRBR zonal task ZL-540-02-1 or ZL-540-02-2 (for MRBR since Revision 8) have already been performed before the effective date of this AD, and for which it cannot be substantiated that access panels 540CZ, 540DZ, 640CZ and 640DZ were removed for inspection. This AD does not apply to the airplanes identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD.

(1)Airplanes on which zonal tasks ZL-540-02-1 and ZL-540-02-2 (or ZL-540-02 and ZL-640-02) have been performed in accordance with airplane maintenance manual

(AMM)05-25-40 at August 2001 revision or later revision.

(2)Airplanes on which one of the following Airworthiness Limitation Items (ALI)/MRBR tasks have been performed: 572004-01-X, 572004-03-X; 572020-01-X, 572020-02-X; 572027-01-X, 572027-03-X; 572053-01-X, 572053-02-X; 572060-02-X; or 572061-02-X; where X represents the task applicability index.

(3)Airplanes delivered after March 27, 2007. Note 1: Up to MRBR Revision 7, ZL-540-02 covered Zone 540 and ZL-640-02 covered Zone 640. Since MRBR Revision 8, ZL-540-02-1 or ZL-540-02-2 also cover the corresponding RH wing zone (Zone 640). Subject

(d)Air Transport Association

(ATA)of America Code 57: Wings. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: During planned maintenance visit on two aircraft, corrosion was found on the upper surface of the wing lower skin panel N° 1, inside the Right Hand

(f)Unless already done, do the following actions. Within 14 months after the effective date of this AD, perform a detailed visual inspection of the wing tank dry bay to detect corrosion and if any corrosion is found, before further flight, contact Airbus for repair instructions and repair. Do all applicable actions in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-57-1121, dated October 9, 2002. Another approved method for doing the detailed inspection and applicable corrective actions is the accomplishment of one of the following ALI/MRBR tasks: 572004-01-X, 572004-03-X; 572020-01-X, 572020-02-X; 572027-01-X, 572027-03-X; 572053-01-X, 572053-02-X; 572060-02-X; or 572061-02-X; and ZL-540-02-X if panels 540CZ, 540DZ, 640CZ, and 640DZ panels have been removed; where X represents the task applicability index. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

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

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

(425)227-2141; fax

(425)227-1149. Before using any 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)Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget

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

(h)Refer to MCAI EASA Airworthiness Directive 2007-0064R1, dated September 21, 2007, and Airbus Service Bulletin A320-57-1121, dated October 9, 2002, for related information. Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24332 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0334; Directorate Identifier 2007-NM-206-AD] RIN 2120-AA64 Airworthiness Directives; ATR Model ATR42 and ATR72 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: [T]he FAA has published a set of new rules related to the fuel tank safety, including the Special Federal Aviation Regulation 88 (SFAR 88). The JAA (Joint Aviation Authority) has issued an Interim Policy JAA INT/POL 25/12, to recommend the application of a similar requirement to the National Aviation Authorities

(NAA)[of Europe]. * * * ATR carried out a safety review on the fuel tank systems and zones adjacent to the fuel tanks on all ATR models * * *. The unsafe condition is the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by January 16, 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:*

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1137; fax

(NAA)[of Europe]. This recommendation was followed by French DGAC, which rendered the compliance to JAA INT/POL 25/12 mandatory for all ATR Aircraft. Under this regulation, all holders of type certificates are required to conduct a design review of their fuel tank systems against explosion risk. It also requires the development and implementation of maintenance and inspection instructions to maintain the safety of the fuel tank system. To answer JAA INT/POL 25/12, and in accordance with SFAR 88 requirements and guideline, ATR carried out a safety review on the fuel tank systems and zones adjacent to the fuel tanks on all ATR models using relevant safety assessment methods of JAR 35.1309. As a result of this safety review, ATR developed for ATR 42 the modification 05355 (SB (service bulletin) ATR42-28-0039), and for ATR 72 the modification 05356 (SB ATR72-28-1019). Those modifications consist in the installation of fuses adapters on wiring entering the fuel tanks and current limitation devices. For ATR 72 aircraft, the modification also requires replacement of the high level sensors with new sensors having shorter harness. The modification also includes related investigative and corrective actions, which include inspecting the electrical harness for correct installation and adjusting the harness as necessary, and, for Model ATR42 airplanes, inspecting the bonding strap for correct installation and adjusting the bonding strap. You may obtain further information by examining the MCAI in the AD docket. The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate

(JAA)has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference

(ECAC)representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Relevant Service Information ATR has issued Service Bulletins ATR42-28-0039, Revision 04, dated June 12, 2007; and ATR72-28-1019, Revision 05, dated June 12, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 55 products of U.S. registry. We also estimate that it would take about 150 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $23,000 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,925,000, or $35,000 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **ATR-GIE Avions De Transport Régional (Formerly Aerospatiale):** Docket No. FAA-2007-0334; Directorate Identifier 2007-NM-206-AD. Comments Due Date

(a)We must receive comments by January 16, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to the airplanes specified in paragraphs (c)(1) and (c)(2) of this AD.

(1)ATR Model ATR42-200, -300, -320, and -500 airplanes, certificated in any category, serial numbers 1 through 642.

(2)ATR Model ATR72-101, -201, -102, -202, -211, -212, and -212A airplanes, certificated in any category, serial numbers 1 through 724. Subject

(d)Air Transport Association

(ATA)of America Code 28: Fuel. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: [T]he FAA has published a set of new rules related to the fuel tank safety, including the Special Federal Aviation Regulation 88 (SFAR 88). The JAA (Joint Aviation Authority) has issued an Interim Policy JAA INT/POL 25/12, to recommend the application of a similar requirement to the National Aviation Authorities

(NAA)[of Europe]. This recommendation was followed by French DGAC, which rendered the compliance to JAA INT/POL 25/12 mandatory for all ATR Aircraft. Under this regulation, all holders of type certificates are required to conduct a design review of their fuel tank systems against explosion risk. It also requires the development and implementation of maintenance and inspection instructions to maintain the safety of the fuel tank system. To answer JAA INT/POL 25/12, and in accordance with SFAR 88 requirements and guidelines, ATR carried out a safety review on the fuel tank systems and zones adjacent to the fuel tanks on all ATR models using relevant safety assessment methods of JAR 35.1309. As a result of this safety review, ATR developed for ATR 42 the modification 05355 (SB (service bulletin) ATR42-28-0039), and for ATR 72 the modification 05356 (SB ATR72-28-1019). Those modifications consist in the installation of fuses adapters on wiring entering the fuel tanks and current limitation devices. For ATR 72 aircraft, the modification also requires replacement of the high level sensors with new sensors having shorter harness. The modification also includes related investigative and corrective actions, which include inspecting the electrical harness for correct installation and adjusting the harness as necessary, and, for Model ATR42 airplanes, inspecting the bonding strap for correct installation and adjusting the bonding strap. The unsafe condition is the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Actions and Compliance

(f)Within 41 months after the effective date of this AD, unless already done, modify the fuel system and do all applicable related investigative and corrective actions according to the instructions given by the applicable service bulletin listed in Table 1 of this AD. Do all applicable related investigative and corrective actions before further flight. Actions accomplished before the effective date of this AD in accordance with Avions de Transport Regional Service Bulletin ATR42-28-0039, Revision 03, dated November 15, 2006, are considered acceptable for compliance with the corresponding action specified in this AD. Table 1.—Service Information Avions de Transport Regional Service Bulletin Revision level Date ATR42-28-0039 (for Model ATR42 Airplanes) 04 June 12, 2007. ATR72-28-1019 (for Model ATR72 Airplanes) 05 June 12, 2007. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: The additional actions specified in the MCAI for operators that have done actions in accordance with previous issues of the service bulletins are not complete. Therefore, this AD only refers to ATR Service Bulletin ATR42-28-0039, Revision 03, dated November 15, 2006; Revision 04, dated June 12, 2007; and ATR72-28-1019, Revision 05, dated June 12, 2007; as appropriate sources of service information for accomplishing the required actions. Operators that have done actions in accordance with previous issues of the service bulletins may request an approval for an alternative method of compliance

(AMOC)according to paragraph

(g)of this AD, provided that the AMOC provides an acceptable level of safety. Other FAA AD Provisions

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

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

(425)227-1137; fax

(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

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

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

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

(h)Refer to MCAI EASA Airworthiness Directive 2007-0226, dated August 24, 2007, and the service information listed in Table 2 of this AD, for related information. Table 2.—Related Service Information Avions de Transport Regional Service Bulletin Revision level Date ATR42-28-0039 04 June 12, 2007. ATR72-28-1019 05 June 12, 2007. Issued in Renton, Washington, on December 10, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24382 Filed 12-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Parts 4 and 9 [Notice No. 79; Re: Notice No. 77] RIN 1513-AA92 Proposed Establishment of the Calistoga Viticultural Area; Comment Period Extension AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury. ACTION: Notice of proposed rulemaking; extension of comment period. SUMMARY: In response to industry member requests, we are extending the comment period for Notice No. 77, Proposed Establishment of the Calistoga Viticultural Area, a notice of proposed rulemaking published in the **Federal Register** on November 20, 2007, for an additional 90 days. DATES: Written comments on Notice No. 77 must now be received on or before March 20, 2008. ADDRESSES: You may send comments on Notice No. 77 to one of the following addresses: • *http://www.regulations.gov* (Federal e-rulemaking portal; follow the instructions for submitting comments); or • Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412. You may view copies of this notice, Notice No. 77, and any comments we receive about the proposals described in Notice No. 77 under Docket No. TTB-2007-0067 on the Regulations.gov Web site at *http://www.regulations.gov* . A link to Docket No. TTB-2007-0067 is also available on the TTB Web site at *http://www.ttb.gov/regulations_laws/all_rulemaking.shtml* , within the entry for Notice No. 77. In addition, you may view copies of the same materials described above by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. To make an appointment, call

(202)927-2400. FOR FURTHER INFORMATION CONTACT: Amy R. Greenberg, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street, NW., Suite 200E, Washington, DC 20220; telephone 202-927-8210; or e-mail *Amy.Greenberg@ttb.gov* . SUPPLEMENTARY INFORMATION: On March 31, 2005, the Alcohol and Tobacco Tax and Trade Bureau

(TTB)published a notice of proposed rulemaking in the **Federal Register** regarding the establishment of the Calistoga viticultural area (see Notice No. 36, 70 FR 16451). In light of comments regarding the potential adverse impact on established brand names that we received in response to that first notice, we published a second notice of proposed rulemaking on November 20, 2007, as Notice No. 77 (72 FR 65256) requesting comments on our proposal to provide “grandfather” protection for certain brand names used on existing certificates of label approval, provided those labels also carry information that would dispel an impression that the wine meets the requirements for using the viticultural area name. As originally published, comments on Notice No. 77 are due on or before December 20, 2007, 30 days after its publication. Also on November 20, 2007, TTB published Notice No. 78 (72 FR 65261), a notice of proposed rulemaking regarding our regulations on the establishment of American viticultural areas. The proposed amendments clarify rules for preparing, submitting, and processing viticultural area petitions. The proposals contained in Notice No. 78 also include an amendment to 27 CFR 4.39(i) that would establish a “grandfather” provision to protect wine labels using a viticultural area name, provided that the label in question was approved and in actual commercial use for a specified period of time preceding TTB's receipt of a perfected petition for establishment of the viticultural area. As originally published, comments on Notice No. 78 are due on or before January 22, 2008, 60 days after its publication. After the publication of Notice No. 77, TTB received two requests from wine industry groups to extend that notice's comment period. Both the Napa Valley Vintners, a trade group representing over 300 Napa Valley (California) vintners, and the Wine Institute, a trade representing 1,100 California wineries and wine-related businesses, requested that the comment period for Notice No. 77 be extended an additional 90 days. In support of its extension request, Napa Valley Vintners indicates that the proposed grandfather provision contained in Notice No. 77 “is of great concern to our association” and is “inextricably linked” to TTB's more general grandfathering proposal contained in Notice No. 78. The association believes that its decisions regarding the two notices “should be made at the same time.” Its requested 90-day extension, the group states, will allow its Winegrower Appellation Committee to consider the grandfather provision and the specific questions posed by TTB in Notice No. 77. The Napa Valley Vintners' request notes that its appellation committee's recommendations must then be presented to the group's board of directors, which only meets once a month. The Wine Institute, in its comment period extension request, also noted that Notice Nos. 77 and 78 deal with similar issues “that call for consistent rather than staggered comment periods.” In addition, the Wine Institute stated that, with the holiday season, its membership “is engaged in one of its busiest months of the year.” In response to these requests, TTB extends the original 30-day comment period for Notice No. 77 for an additional 90 days, so that the comment period will equal 120 days. Therefore, comments on Notice No. 77 are now due on or before March 20, 2008. Drafting Information Michael Hoover of the Regulations and Rulings Division drafted this notice. John J. Manfreda, Administrator. [FR Doc. E7-24361 Filed 12-14-07; 8:45 am] BILLING CODE 4810-31-P DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Parts 4, 9, and 70 [Notice No. 80; Re: Notice No. 78] RIN 1513-AB39 Proposed Revision of American Viticultural Area Regulations; Extension of Comment Period AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury. ACTION: Notice of proposed rulemaking; extension of comment period. SUMMARY: In response to industry member requests, we are extending the comment period for Notice No. 78, Proposed Revision of American Viticultural Area Regulations, a notice of proposed rulemaking published in the **Federal Register** on November 20, 2007, for an additional 60 days. DATES: Written comments on Notice No. 78 must now be received on or before March 20, 2008. ADDRESSES: You may send comments on Notice No. 78 to one of the following addresses: • *http://www.regulations.gov* (Federal e-rulemaking portal; follow the instructions for submitting comments); or • Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412. You may view copies of this notice, Notice No. 78, and any comments we receive about the proposals described in Notice No. 78 under Docket No. TTB-2007-0068 on the Regulations.gov Web site at *http://www.regulations.gov* . A link to Docket No. TTB-2007-0068 is also available on the TTB Web site at *http://www.ttb.gov/regulations_laws/all_rulemaking.shtml* , within the entry for Notice No. 78. In addition, you may view copies of the same materials described above by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. To make an appointment, call

(202)927-2400. FOR FURTHER INFORMATION CONTACT: Rita D. Butler, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street, NW., Suite 200-E, Washington, DC 20220; telephone: 202-927-1608, fax: 202-927-8525. SUPPLEMENTARY INFORMATION: On November 20, 2007, the Alcohol and Tobacco Tax and Trade Bureau

(TTB)published a notice of proposed rulemaking in the **Federal Register** as Notice No. 78 (72 FR 65261) requesting comments on proposed amendments to our regulations regarding the use of geographic brand names found in 27 CFR part 4 and the establishment of American viticultural areas

(AVAs)contained in 27 CFR part 9. The proposed amendments address the effect that the approval of an AVA may have on established brand names and clarify the rules for preparing, submitting, and processing viticultural area petitions. TTB also proposes to add to the regulations statements regarding the viticultural significance of established viticultural area names, or key portions of those names, for wine labeling purposes. As originally published, comments on Notice No. 78 are due on or before January 22, 2008, 60 days after its publication. Also on November 20, 2007, TTB published Notice No. 77 in the **Federal Register** (72 FR 65256), a notice of proposed rulemaking regarding the establishment of the Calistoga viticultural area in Napa County, California. Specifically, Notice No. 77 sought comments on a proposal to provide “grandfather” protection for certain brand names used on existing certificates of label approval. As originally published, comments on Notice No. 77 are due on or before December 20, 2007, 30 days after its publication. After the publication of Notice No. 78, TTB received three requests from wine industry groups to extend that notice's comment period. Requests for 60-day extensions were received from the Napa Valley Vintners, a trade group representing over 300 Napa Valley (California) vintners, and the Wine Institute, a trade representing 1,100 California wineries and wine-related businesses. The Oregon Winegrowers Association, a trade association with 239 grape grower and winery members, requested a 120-day extension. In support of its extension request, Napa Valley Vintners indicates that the proposed amendments to the AVA program cannot be considered by its membership within the announced comment period. The group states that it only meets once a month, and “because of the complexity of the subjects covered in the Notice, the current holiday season and market visits already scheduled by our winery members during January, we will be unable to complete our deliberations and finalize our comments until after our general membership meeting in March.” The Wine Institute, in its comment period extension request, stated that Notice No. 78 “is complex and far-reaching, and will affect many of our members.” The Wine Institute also noted that the comment period deadline for Notice No. 78 runs up against the January 27, 2008, comment deadline for Notice No. 73, a notice of proposed rulemaking regarding “Serving Facts” labeling for alcohol beverages, “which is already demanding a large part of our resources and membership participation,” all of which is occurring during the holiday season when its membership “is engaged in one of its busiest months of the year.” In addition, the group adds that Notice Nos. 77 and 78 deal with similar issues “that call for consistent rather than staggered comment periods.” The Oregon Winegrowers Association, noting the “complex and lengthy” proposals outlined in Notice No. 78, states that it will require additional time to thoroughly understand the full impact of the proposals, acquaint its board members with their meaning, garner consensus within the industry, and respond in detail to the notice's proposals. In response to these requests, TTB extends the original 60-day comment period for Notice No. 78 for an additional 60 days so that the comment period will equal 120 days. Therefore, comments on Notice No. 77 are now due on or before March 20, 2008. Drafting Information Michael Hoover of the Regulations and Rulings Division drafted this notice. Signed: December 11, 2007. John J. Manfreda, Administrator. [FR Doc. E7-24364 Filed 12-14-07; 8:45 am] BILLING CODE 4810-31-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 756 [Stats No. CR-1-FOR; Docket ID OSM-2007-0019] Crow Tribe Abandoned Mine Land Reclamation Plan AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior. ACTION: Proposed rule; public comment period and opportunity for public hearing on proposed amendment. SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing receipt of a proposed amendment to the Crow Tribe Abandoned Mine Land Reclamation

(AMLR)Plan (hereinafter, the Crow Plan) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The Crow Tribe has requested concurrence from the Secretary of the Department of the Interior with its certification of completion of all coal-related reclamation objectives. If the Secretary concurs with the certification, the Crow Tribe intends to request AMLR funds to pursue projects in accordance with section 411 of SMCRA. DATES: Comments on the proposed rule must be received by 4:00 p.m., m.s.t., January 16, 2008 to ensure our consideration. If requested, we will hold a public hearing on the amendment on January 11, 2008. We will accept requests to speak until 4 p.m., m.s.t., January 2, 2008. ADDRESSES: You may submit comments by either of the two following methods: • *Federal e-Rulemaking Portal: http://www.regulations.gov.* The notice is listed under the agency name “Office of Surface Mining Reclamation and Enforcement” and has been assigned Docket ID: OSM-2007-0019. • *Mail/Hand Delivery:* Jeffrey Fleischman, Director, Casper Field Office; Office of Surface Mining Reclamation and Enforcement; 150 East “B” Street, Room 1018, Casper, Wyoming 82601. Please include the Docket ID (OSM-2007-0019) with your comments. If you would like to submit comments through the Federal eRulemaking Portal, go to *www.regulations.gov* and do the following. Find the blue banner with the words “Search Documents” and go to “Optional Step 2.” Select “Office of Surface Mining Reclamation and Enforcement” from the agency drop-down menu, then click the “Submit” button at the bottom of the page. The next screen will have the title “Document Search Results.” The proposed rule is listed under the Docket ID as OSM-2007-0019. If you click on OSM-2007-0019, you can view and print a copy of the amendment, the proposed rule, add comments, and view any comments submitted by other persons. We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than the two listed above will be included in the docket for this rulemaking and considered. For additional information on the rulemaking process and the public availability of comments, see “III. Public Comment Procedures” in the SUPPLEMENTARY INFORMATION section of this document. You may receive one free copy of this amendment by contacting OSM's Casper Field Office. You may access this amendment's docket, review copies of the Crow Plan and this amendment, find a listing of any scheduled public hearings, and review all written comments received in response to this document during normal business hours, Monday through Friday, excluding holidays, at the following addresses: *Federal e-Rulemaking Portal: http://www.regulations.gov.* The notice has been assigned Docket ID: OSM-2007-0019. Jeffrey Fleischman, Director, Casper Field Office, Office of Surface Mining Reclamation and Enforcement, 150 East “B” Street, Room 1018, Casper, Wyoming 82601,

(307)261-6550, *jfleischman@osmre.gov.* Carl Venne, Chairman, Crow Tribe Executive Branch, Bacheeitche Avenue, Crow Agency, Montana 59022,

(406)638-3715. FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Casper Field Office Director, Telephone:

(307)261-6550, Internet address: *jfleischman@osmre.gov.* SUPPLEMENTARY INFORMATION: I. Background on the Crow Plan II. Description of the Proposed Amendment III. Public Comment Procedures IV. Procedural Determinations I. Background on the Crow Plan The Abandoned Mine Land Reclamation Program was established by Title IV of the Act (30 U.S.C. 1201 *et seq.* ) in response to concerns over extensive environmental damage caused by past coal mining activities. The program is funded by a reclamation fee collected on each ton of coal that is produced. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Indian tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mines. On January 4, 1989, the Secretary of the Interior approved the Crow Tribe's AMLR Plan. You can find general background information on the Crow Plan, including the Secretary's findings and the disposition of comments, in the January 4, 1989, **Federal Register** (54 FR 116). You can also find later actions concerning Crow Tribe's Plan and plan amendments at 30 CFR 756.20. II. Description of the Proposed Amendment By letter dated May 29, 2007, the Crow Tribe indicated to OSM that all high priority coal-related hazards on the Crow Reservation have been successfully addressed. As such, the Crow Tribe seeks certification of completion of all coal-related problems. If this request is approved by OSM it will mark the addressing, for the present, of all known existing coal-related problems within the Crow Reservation eligible for funding under the AMLR program. If approved, the certificate of completion will be codified at 30 CFR 756.20. In accordance with 30 CFR 875.13(c), the Crow Tribe may then implement a program under Section 411 of SMCRA. OSM is seeking public comment on the adequacy of the Crow Tribe's certification that it has addressed all reclamation relating to abandoned coal mine lands. In addition, OSM is aware of the potential for problems occurring in the future which relate to pre-August 3, 1977, coal mining. In accordance with 30 CFR 875.13(a)(3), the Crow Tribe agrees to acknowledge and give top priority to any coal-related problem(s) that may be found or occur after submission of the certificate of completion. The full text of the plan amendment is available for you to read at the locations listed above under ADDRESSES . III. Public Comment Procedures Under the provisions of 30 CFR 884.15(a), OSM requests your comments on whether the amendment satisfies the applicable Tribal reclamation plan approval criteria of 30 CFR 884.14. If we approve the amendment, it will become part of the Crow Plan. *Electronic or Written Comments:* If you submit written comments, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent Tribal or Federal laws or regulations, technical literature, or other relevant publications. We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than those listed above (see ADDRESSES ) will be included in the docket for this rulemaking and considered. *Public Availability of Comments:* Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available in the electronic docket for this rulemaking at *www.regulations.gov.* While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Public Hearing If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.s.t. on January 2, 2008. If you are disabled and need reasonable accommodation to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing. If only one person expresses an interest, a public meeting rather than a hearing may be held, with the results included in the docket for this rulemaking. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard. IV. Procedural Determinations Executive Order 13175—Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have identified potential effects on a federally recognized Indian tribe (the Crow Tribe) that will result from this rule which is based on an amendment submitted by the Crow Tribe. This rule will enable the Crow Tribe to utilize AMLR grant monies to implement a program under Section 411 of SMCRA. We have been in consultation with the Crow Tribe and will fully consider tribal views when we develop the final rule. Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis of the amendment submitted by the tribe. Executive Order 12866—Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget

(OMB)under Executive Order 12866 (Regulatory Planning and Review). Executive Order 12988—Civil Justice Reform The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, this rule meets the applicable standards of subsections

(a)and

(b)of that section. However, these standards are not applicable to the actual language of tribal AMLR plans and revisions thereof because each plan is drafted and promulgated by a specific Indian tribe, not by OSM. Decisions on the proposed Crow Tribe AMLR plan and revisions thereof submitted by the Tribe are based on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the applicable Federal regulations at 30 CFR Part 884. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is

(1)considered significant under Executive Order 12866, and

(2)likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act No environmental impact statement is required for this rule since agency decisions on proposed tribal AMLR plans and revisions thereof are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4321 *et seq.* ) by the Manual of the Department of the Interior (516 DM 13.5(29)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ). Regulatory Flexibility Act The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The proposed rule, if adopted, would affect only the Crow Tribe and, as previously stated, would allow the tribe to request AMLR funds to pursue projects in accordance with section 411 of SMCRA. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), of the Small Business Regulatory Enforcement Fairness Act. Based on the nature of the amendment submitted by the tribe, we have determined that the rule: a. Does not have an annual effect on the economy of $100 million. b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. Unfunded Mandates This rule will not impose an unfunded mandate on State, local, or Tribal governments or the private sector of $100 million or more in any given year. This determination is based on the nature of the amendment submitted by the tribe. List of Subjects in 30 CFR Part 756 Abandoned mine reclamation programs, Indian lands, Surface mining, Underground mining. Dated: November 5, 2007. Louis Hamm, Acting Regional Director, Western Region. [FR Doc. E7-24389 Filed 12-14-07; 8:45 am] BILLING CODE 4310-05-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 943 [SATS No. TX-058-FOR; Docket ID: OSM-2007-0018] Texas Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior. ACTION: Proposed rule; public comment period and opportunity for public hearing on proposed amendment. SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing receipt of a proposed amendment to the Texas regulatory program (Texas program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Texas proposes revisions to its regulations regarding annual permit fees. Texas intends to revise its program to improve operational efficiency. This document gives the times and locations that the Texas program and proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested. DATES: Comments on the proposed rule must be received on or before 4 p.m., c.t., January 16, 2008, to ensure our consideration. If requested, we will hold a public hearing on the amendment on January 11, 2008. We will accept requests to speak at a hearing until 4 p.m., c.t. on January 2, 2008. ADDRESSES: You may submit comments by either of the two following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* The proposed rule is listed under the agency name “OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT” and has been assigned Docket ID: OSM-2007-0018. • *Mail/Hand Delivery:* Alfred L. Clayborne, Director, Tulsa Field Office, Office of Surface Mining Reclamation and Enforcement, 1645 South 101st East Avenue, Suite 145, Tulsa, Oklahoma 74128-4629. Please include the Docket ID (OSM-2007-0018) with your comments. If you would like to submit comments through the Federal eRulemaking Portal, go to www.regulations.gov and do the following. Find the blue banner with the words “Search Documents” and go to “Optional Step 2.” Select “Office of Surface Mining Reclamation and Enforcement” from the agency drop-down menu, then click the “Submit” button at the bottom of the page. The next screen will have the title “Document Search Results.” The proposed rule is listed under the Docket ID as OSM-2007-0018. If you click on OSM-2007-0018, you can view and print a copy of the amendment, the proposed rule, add comments, and view any comments submitted by other persons. We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than the two listed above will be included in the docket for this rulemaking and considered. For additional information on the rulemaking process and the public availability of comments, see “III. Public Comment Procedures” in the SUPPLEMENTARY INFORMATION section of this document. You may receive one free copy of the amendment by contacting OSM's Tulsa Field Office. See below FOR FURTHER INFORMATION CONTACT . You may review a copy of the amendment during regular business hours at the following locations: Tulsa Field Office, Office of Surface Mining Reclamation and Enforcement, 1645 South 101st East Avenue, Suite 145, Tulsa, Oklahoma 74128-4629, Telephone:

(918)581-6430. Surface Mining and Reclamation Division, Railroad Commission of Texas, 1701 North Congress Avenue, Capitol Station, P.O. Box 12967, Austin, Texas 78711-2967, Telephone:

(512)463-6900. FOR FURTHER INFORMATION CONTACT: Alfred L. Clayborne, Director, Tulsa Field Office. Telephone:

(918)581-6430. E-mail: *aclayborne@osmre.gov.* SUPPLEMENTARY INFORMATION: I. Background on the Texas Program II. Description of the Proposed Amendment III. Public Comment Procedures IV. Procedural Determinations I. Background on the Texas Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Texas program effective February 16, 1980. You can find background information on the Texas program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Texas program in the February 27, 1980, **Federal Register** (45 FR 12998). You can also find later actions concerning the Texas program and program amendments at 30 CFR 943.10, 943.15 and 943.16. II. Description of the Proposed Amendment By letter dated October 2, 2007 (Administrative Record No. TX-664), Texas sent us an amendment to its program under SMCRA (30 U.S.C. 1201 *et seq.* ) at its own initiative. Below is a summary of the changes proposed by Texas. The full text of the program amendment is available for you to read on the internet at *www.regulations.gov* and at the other locations listed above under ADDRESSES . Texas proposes to revise its regulation at 16 Texas Administrative Code

(TAC)section 12.108(b) regarding annual permit fees by:

(1)Decreasing the amount of the fee for each acre of land within the permit area on which coal or lignite was actually removed during the calendar year,

(2)Increasing the amount of the fee for each acre of land within a permit area covered by a reclamation bond on December 31st of the year, and

(3)Increasing the amount of the fee for each permit in effect on December 31st of the year. III. Public Comment Procedures Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program. Written Comments Send your comments to us by one of the two methods specified above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than the two listed above (see ADDRESSES ) will be included in the docket for this rulemaking and considered. Public Availability of Comments Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Public Hearing If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., c.t. on January 2, 2008. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard. Public Meeting If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the docket for this rulemaking. IV. Procedural Determinations Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation. Executive Order 12866—Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget

(OMB)under Executive Order 12866. Executive Order 12988—Civil Justice Reform The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections

(a)and

(b)of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met. Executive Order 13132—Federalism This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects 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. This determination is based on the fact that the Texas program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Texas program has no effect on Federally-recognized Indian tribes. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is

(1)considered significant under Executive Order 12866, and

(a)Does not have an annual effect on the economy of $100 million;

(b)Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and

(c)Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. Unfunded Mandates This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. List of Subjects in 30 CFR Part 943 Intergovernmental relations, Surface mining, Underground mining. Dated: November 9, 2007. Ervin J. Barchenger, Acting Regional Director, Mid-Continent Region. [FR Doc. E7-24393 Filed 12-14-07; 8:45 am] BILLING CODE 4310-05-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 946 [Docket ID: OSM-2007-0013; SATS No. VA-124-FOR] Virginia Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Proposed rule; reopening of public comment period. SUMMARY: We are announcing receipt of revisions to a previously proposed amendment to the Virginia regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The revisions concern Virginia's standards for revegetation success for certain postmining land uses. The amendment is intended to render the State's regulations no less effective than the Secretary's regulations in meeting the requirements of the Act. This document gives the times and locations that the Virginia program and proposed amendment to that program are available for your inspection and the comment period during which you may submit written comments on the revisions to the amendment. DATES: Comments on the proposed rule must be received on or before January 2, 2008 to ensure our consideration. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* The proposed rule is listed under the agency name “OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT.” It has been assigned Docket ID: OSM-2007-0013. If you would like to submit comments through the Federal eRulemaking Portal, go to *www.regulations.gov* and do the following. Find the blue banner with the words “Search Documents” and go to “Optional Step 2.” Select “Office of Surface Mining Reclamation and Enforcement” from the agency drop-down menu, then click the “Submit” button at the bottom of the page. The next screen will have the title “Document Search Results.” The proposed rule is listed under the Docket ID as OSM-2007-0013. If you click on OSM-2007-0013, you can view the proposed rule, add comments, and view any comments submitted by other persons. • *Mail/Hand Delivery:* Mr. Earl Bandy, Director, Knoxville Field Office, Office of Surface Mining Reclamation and Enforcement, 1941 Neeley Road, Suite 201, Compartment 116, Big Stone Gap, Virginia 24219. Please include the Docket ID (OSM-2007-0013) with your written comments. We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than those listed above will be included in the docket for this rulemaking and considered. For additional information on the rulemaking process and the public availability of comments, see “III. Public Comment Procedures” in the SUPPLEMENTARY INFORMATION section of this document. You may also request to speak at a public hearing by contacting the individual listed under FOR FURTHER INFORMATION CONTACT . *Docket:* The proposed rule, additional documentation, and any comments that are submitted may be viewed over the internet at *www.regulations.gov.* Look for Docket ID: OSM-2007-0013. In addition, you may review copies of the Virginia program, this amendment, a listing of any scheduled public hearings, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting: Mr. Earl Bandy, Director, Knoxville Field Office, Office of Surface Mining Reclamation and Enforcement, 1941 Neeley Road, Suite 201, Compartment 116, Big Stone Gap, Virginia 24219, Telephone:

(276)523-4303. E-mail: *ebandy@osmre.gov.* Mr. Gavin Bledsoe, Virginia Division of Mined Land Reclamation, P. O. Drawer 900, Big Stone Gap, Virginia 24219, Telephone:

(276)523-8100. E-mail: *gavin.bledsoe@dmme.virginia.gov.* FOR FURTHER INFORMATION CONTACT: Mr. Earl Bandy, Director, Knoxville Field Office; Telephone:

(276)523-4303. E-mail: *ebandy@osmre.gov.* SUPPLEMENTARY INFORMATION: I. Background on the Virginia Program II. Description of the Proposed Amendment III. Public Comment Procedures I. Background on the Virginia Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Virginia program on December 15, 1981. You can find background information on the Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Virginia program in the December 15, 1981, **Federal Register** (46 FR 61088). You can also find later actions concerning Virginia's program and program amendments at 30 CFR 946.12, 946.13, and 946.15. II. Description of the Proposed Amendment By letter dated February 13, 2007 (Administrative Record Number VA-1059), the Virginia Department of Mines, Minerals and Energy

(DMME)submitted an amendment to the Virginia program. In its submission, DMME proposed to revise the Virginia program regarding, among other things, revegetation success standards. We announced receipt of the proposed amendment in the April 9, 2007, **Federal Register** (72 FR 17452). The public comment period closed on May 9, 2007. The portion of the February 13, 2007, amendment dealing with revegetation success standards involved proposed changes to Virginia's regulations at 4 VAC 25-130-816 and 817.116(a)(2) and (b)(3)(v)(C). DMME proposed to revise subsection (a)(2) to consider the levels of ground cover, production, or stocking as being equal to the approved success standard when they were not less than 70% of that success standard. DMME also proposed to revise subsection (a)(2) by adding an exception to the success standard requirements as provided for in subsection (b). Subsection

(b)provides success standards for certain approved postmining land uses. Finally, DMME proposed to amend subsection (a)(2) by deleting a provision requiring that the sampling techniques for measuring success use a 90% statistical confidence interval (i.e., one-sided test with a 0.10 alpha error). In subsection (b)(3)(v)(C), DMME proposed to amend standards for herbaceous vegetation success on postmining land uses where woody plants are used for wildlife management, recreation, shelter belts or forest uses other than commercial forest land by requiring that areas planted with a mixture of herbaceous and woody species sustain a herbaceous ground cover of 70%. After the February 13, 2007, proposed rule was published in the **Federal Register** , DMME revised the portion of its proposed amendment dealing with revegetation success standards. By electronic mail dated April 18, 2007, (Administrative Record Number VA-1074), DMME stated that it wished to withdraw the changes it previously made to 4 VAC 25-130-816 and 817.116(a)(2) regarding the sampling techniques and retain the original language. Additionally, DMME indicated that it wished to revise the herbaceous ground cover success standard of 4 VAC 25-130-816 and 817.117(b)(3)(v)(C) to require that postmining land uses of wildlife management, recreation, shelter belts, or forest uses other than commercial forest land that are planted with a mixture of herbaceous and woody species must sustain a herbaceous ground cover of 80%. We announced these proposed revisions in a July 5, 2007, **Federal Register** notice (72 FR 36632) in which we reopened the public comment period. The reopened public comment period closed July 20, 2007. After our review of the second resubmission of the amendments and based on our discussions regarding the amendment with DMME, DMME chose to resubmit 4 VAC 25-130-816 and 817.116(b)(3) and 816 and 817.116(b)(3)(v)(C) with added language that would facilitate the growth of woody plants in areas to be developed for fish and wildlife habitat, recreation, shelter belts, or forestry. By electronic mail dated August 30, 2007 (Administrative Record Number VA-1082), DMME stated that it would revise parts of 4 VAC 25-130-816 and 817.116 based, in part, on discussions with us regarding the benefits of using the Forestry Reclamation Approach (FRA). The FRA is a method for reclaiming coal-mined land to forests and is based on knowledge gained from both scientific research and experience. It is designed to restore forest land capability and accelerate the natural process of forest development. The FRA advocates selection of a suitable rooting medium for tree growth, loosely grading the growth medium to reduce compaction, using ground covers compatible with growing trees, planting early succession and commercially valuable tree species, and using proper tree planting techniques. DMME's first proposed revision occurs at 4 VAC 25-130-816 and 817.116(b)(3). DMME is proposing to modify this section to indicate that for areas to be developed for fish and wildlife habitat, recreation, shelter belts, or forest products, woody plants must be stocked at least equal to the rates specified in the approved reclamation plan. Additionally, DMME is proposing to add a requirement that in order to minimize competition with woody plants, herbaceous ground cover should be limited to that necessary to control erosion and support the postmining land use. Seed mixtures and seeding rates will be specified in the approved reclamation plan. The proposed revisions correspond to the Federal regulations at 30 CFR 816 and 817.116(b)(3) that provide the standards for success of revegetation and are essentially identical to the ground cover standards for areas where trees will be planted that were adopted by OSM in the Tennessee Federal Program on March 2, 2007 (72 FR 9616) and codified at 30 CFR 942.816 and 942.817. With this new amendment, 4 VAC 25-130-816 and 817.116(b)(3) is proposed to read as follows: 4 VAC 25-130-816.116(b)(3) and 817.116(b)(3). Revegetation; standards for success.

(3)For areas to be developed for fish and wildlife habitat, recreation, shelter belts, or forestry, the stocking of woody plants must be at least equal to the rates specified in the approved reclamation plan. To minimize competition with woody plants, herbaceous ground cover should be limited to that necessary to control erosion and support the postmining land use. Seed mixtures and seeding rates will be specified in the approved reclamation plan. Such parameters are described as follows: DMME's second proposed revision occurs at 4 VAC 25-130-816 and 817.116(b)(3)(v)(C). DMME deleted “products, success of vegetation shall be determined on the basis of tree and shrub” and added “the stocking of woody plants must be at least equal to the rates specified in the approved reclamation plan. To minimize competition with woody plants, herbaceous ground cover should be limited to that necessary to control erosion and support the postmining land use. Seed mixtures and seeding rates will be specified in the approved reclamation plan. Such parameters are described as follows:” With this new amendment, 4 VAC 25-130-816 and 817.116(b)(3)(v)(C) is proposed to read as follows: 4 VAC 25-130-816.116(b)(3)(v)(C) and 817.116(b)(3)(v)(C). Revegetation; standards for success.

(v)Where woody plants are used for wildlife management, recreation, shelter belts, or forest uses other than commercial forest land:

(C)Areas planted with a mixture of herbaceous and woody species shall sustain a herbaceous vegetative ground cover in accordance with guidance provided by the division and the approved forestry reclamation plan and establish an average of 400 woody plants per acre. At least 40 of the woody plants for each acre shall be wildlife food-producing shrubs located suitably for wildlife enhancement, which may be distributed or clustered on the area. III. Public Comment Procedures Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Virginia program. Written or Electronic Comments Send your written or electronic comments to OSM at one of the addresses given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than those listed above will be included in the docket for this rulemaking and considered. Public Availability of Comments Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. List of Subjects in 30 CFR Part 946 Intergovernmental relations, Surface mining, Underground mining. Dated: November 16, 2007. Thomas D. Shope, Regional Director, Appalachian Region. [FR Doc. E7-24392 Filed 12-14-07; 8:45 am] BILLING CODE 4310-05-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2007-1128; FRL-8506-9] Approval and Promulgation of Implementation Plans; Nebraska; Interstate Transport of Pollution AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing a revision to the Nebraska State Implementation Plan

(SIP)for the purpose of approving the Nebraska Department of Environmental Quality's

(NDEQ)actions to address the “good neighbor” provisions of the Clean Air Act Section 110(a)(2)(D)(i). These provisions require each state to submit a SIP that prohibits emissions that adversely affect another state's air quality through interstate transport. NDEQ has adequately addressed the four distinct elements related to the impact of interstate transport of air pollutants. These include prohibiting significant contribution to downwind nonattainment of the National Ambient Air Quality Standards (NAAQS), interference with maintenance of the NAAQS, interference with plans in another state to prevent significant deterioration of air quality, and efforts of other states to protect visibility. The requirements for public notification were also met by NDEQ. DATES: Comments on this proposed action must be received in writing by January 16, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-OAR-2007-1128 by one of the following methods: 1. *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail: jay.michael@epa.gov.* 3. *Mail:* Michael Jay, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. 4. *Hand Delivery or Courier.* Deliver your comments to Michael Jay, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30, excluding legal holidays. Please see the direct final rule that is located in the Rules section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Michael Jay at

(913)551-7460, or by e-mail at *jay.michael@epa.gov.* SUPPLEMENTARY INFORMATION: In the final rules section of the **Federal Register** , EPA is approving the state's SIP revision as a direct final rule without prior proposal because the Agency views this as a noncontroversial revision amendment and anticipates no relevant adverse comments to this action. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action, no further activity is contemplated in relation to this action. If EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed action. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule that is located in the rules section of this **Federal Register** . Dated: November 29, 2007. William Rice, Acting Regional Administrator, Region 7. [FR Doc. E7-24233 Filed 12-14-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [96100-1671-0000-W4] RIN 1018-AV21 Endangered and Threatened Wildlife and Plants; Proposed Rule To List Six Foreign Bird Species Under the Endangered Species Act AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to list three petrel species (order Procellariiformes), the Chatham petrel ( *Pterodroma axillaris* ), previously referred to as ( *Pterodroma hypoleuca axillaris* ); Fiji petrel ( *Pterodroma macgillivrayi* ); and the magenta petrel ( *Pterodroma magentae* ) as endangered, pursuant to the Endangered Species Act of 1973, as amended (Act). In addition, we propose to list the Cook's petrel ( *Pterodroma cookii* ); Galapagos petrel ( *Pterodroma phaeopygia* ), previously referred to as ( *Pterodroma phaeopygia phaeopygia* ); and the Heinroth's shearwater ( *Puffinus heinrothi* ) as threatened under the Act. This proposal, if made final, would extend the Act's protection to these species. The Service seeks data and comments from the public on this proposal. DATES: We must receive comments and information from all interested parties by March 17, 2008. Public hearing requests must be received by January 31, 2008. ADDRESSES: You may submit comments by one of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. • U.S. mail or hand-delivery: Public Comments Processing, Attn: RIN 1018-AV21; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. We will not accept e-mail or faxes. We will post all comments on *http://www.regulations.gov.* This generally means that we will post any personal information you provide us (see the Public Comments section below for more information). FOR FURTHER INFORMATION CONTACT: Mary M. Cogliano, PhD, Division of Scientific Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 110, Arlington, VA 22203; telephone 703-358-1708; fax, 703-358-2276; or e-mail, *ScientificAuthority@fws.gov.* SUPPLEMENTARY INFORMATION: Background In this proposed rule, we propose to list three foreign seabird species as endangered, pursuant to the Act (16 U.S.C. 1531, *et seq.* ). These species are: the Chatham petrel ( *Pterodroma axillaris* ), Fiji petrel ( *Pterodroma macgillivrayi* ), and magenta petrel ( *Pterodroma magentae* ). We also propose to list the Cook's petrel ( *Pterodroma cookii* ), Galapagos petrel ( *Pterodroma phaeopygia* ), and Heinroth's shearwater ( *Puffinus heinrothi* ) as threatened species under the Act. All species are considered pelagic, occurring on the open sea generally out of sight of land, where they feed year round. They return to nesting sites on islands during the breeding season where they nest in colonies (Pettingill 1970, p. 206). Chatham petrel ( *Pterodroma axillaris* ) The Chatham petrel is also known by its Maori name, ranguru. Fossil evidence indicates that this species was once widespread throughout the Chatham Islands of New Zealand [New Zealand Department of Conservation (NZDOC) 2001b]. However, the species is currently only known to breed on South East Island (Rangatira) (BirdLife International 2007a) and, as a result of recent release efforts, on Pitt Island (BirdLife International News 2006) within the Chatham Islands. The population of this species is very small, estimated at 800-1,000 birds based on recent research and banding studies (Taylor 2000), and is showing a decreasing population trend (BirdLife International 2007a). It is estimated that fewer than 200 pairs breed per year (NZDOC 2001b). The IUCN considers the Chatham petrel to be “Critically Endangered” (BirdLife International 2006a). Banding studies have shown that young birds of this species remain at sea for at least two years before returning to land to breed and nest. Based on limited feeding habits data, the species preys on squid and small fish (Heather and Robertson 1997, as cited in BirdLife International 2000). Fiji petrel ( *Pterodroma macgillivrayi* ) Synonyms for the Fiji petrel include *Pseudobulweria macgillivrayi* and *Thalassidroma macgillivrayi* . Very little information is available on the Fiji petrel and its life history. There have only been 12 substantiated sightings of this species on land since 1965, and a total of 13 historically. These sightings have all been on Gau Island (BirdLife International 2000), a 52.55-square mile (136.1 km 2 ) island in Fiji's Lomaiviti archipelago (Wikipedia 2007f). The population of this species is very small, estimated at less than 50 birds and is showing a decreasing population trend (BirdLife International 2007c). The IUCN classifies the Fiji petrel as “Critically Endangered” (BirdLife International 2006c). Magenta petrel ( *Pterodroma magentae* ) The magenta petrel, or Taiko as it is known locally, is native to Chatham Island, New Zealand (BirdLife International 2000), the largest island in the Chatham Islands chain, covering 348 square miles (900 km 2 , Wikipedia 2007b). Based on fossil evidence and historical records, it is believed that the magenta petrel was once the most abundant burrowing seabird on Chatham Island (Bourne 1964, Sutton and Marshall 1977, as cited in NZDOC 2001a). It has been reported that prior to 1900, indigenous Moriori and Maori harvested thousands of petrel chicks for food (Crockett 1994). The limited feeding habits data show that the magenta petrel preys on squid (Heather and Robertson 1997, as cited in BirdLife International 2000). The type specimen for the magenta petrel was first collected at sea in 1867, and after 10 years of intensive searching the species was re-discovered in 1978 in the southeast corner of Chatham Island (Crockett 1994). Since then, additional searches have resulted in the location and banding of 92 birds (BirdLife International 2007d). The IUCN considers this species as “Critically Endangered” (BirdLife International 2006d). The magenta petrel population is estimated at 120 individuals with a decreasing trend (BirdLife International 2007d). Cook's petrel *(Pterodroma cookii)* Cook's petrel is endemic to the New Zealand archipelago (del Hoyo, *et al.* 1992), which comprises two main islands, the North and South Islands, and numerous smaller islands. The total land area of the archipelago covers 103,700 square miles (268,680 km 2 , Wikipedia 2007i). Historically, Cook's petrels were harvested in large numbers as a food source by native Moriori (Oliver 1955). Although the Cook's petrel was once considered a dominant species on these islands, the species' breeding and nesting activities are now restricted to islands at the northern and southern limits of its former breeding range, including Great Barrier (Aotea), Little Barrier (Hauturu), and Codfish (Whenua Hou) Islands (del Hoyo, *et al.* 1992). The species' diet consists primarily of cephalopods, fish, crustaceans, and bioluminescent tunicates that can be hunted at night (Imber 1996). The IUCN classifies this species as “Endangered” (BirdLife International 2006b). Although the population on Little Barrier Island was thought to be about 50,000 pairs (BirdLife International 2007b), using GIS (Geographic Information System) technology, Rayner, *et al.* (2007b) determined that the population is around 286,000 pairs. In 2006, the Great Barrier Island population was considered to be in danger of extirpation because only four nest burrows had been located in recent years, and it was estimated that fewer than 20 pairs continued to breed on the island. However, the populations on Little Barrier and Codfish islands are likely to be increasing (BirdLife International 2007b). Galapagos petrel (Pterodroma phaeopygia) The Galapagos petrel is endemic to the Galapagos Islands, Ecuador (BirdLife International 2000), and is currently known to occur on the archipelago's islands of Santa Cruz, Floreana, Santiago, San Cristóbal, and Isabela, which cover a total land area of 2,680 square miles (6,942 km 2 , Cruz and Cruz 1987; Vargas and Cruz 2000, as cited in BirdLife International 2000). This species feeds mostly on squid, fish, and crustaceans (Castro and Phillips 1996, as cited in BirdLife International 2000), and has been observed foraging near the Galapagos Islands, as well as east and north of the islands (Spear, *et al.* 1995). The IUCN classifies the Galapagos petrel as “Critically Endangered” (BirdLife International 2006e). The total population is estimated to be 20,000-60,000 birds with a decreasing population trend (BirdLife International 2007e). Heinroth's shearwater (Puffinus heinrothi) Very little information is available on the Heinroth's shearwater and its life history. The species' nesting grounds have not been located, but observations of the species indicate that the species breeds on Bougainville Island in Papua New Guinea, and Kolombangara and Rendova Islands in the Solomon Islands (Buckingham, *et al.* 1995, Coates 1985, 1990, as cited in BirdLife International 2000). The IUCN categorizes this species as “Vulnerable” (BirdLife International 2006f). The population is estimated at 250-999 birds, with an unknown population trend; however, there is no substantial evidence of a decline (BirdLife International 2007f). Previous Federal Action Section 4(b)(3)(A) of the Act requires the Service to make a finding known as a “90-day finding” on whether a petition to add, remove, or reclassify a species from the list of endangered or threatened species has presented substantial information indicating that the requested action may be warranted. To the maximum extent practicable, the finding shall be made within 90 days following receipt of the petition and published promptly in the **Federal Register** . If the Service finds that the petition has presented substantial information indicating that the requested action may be warranted (referred to as a positive finding), Section 4(b)(3)(A) of the Act requires the Service to commence a status review of the species if one has not already been initiated under the Service's internal candidate assessment process. In addition, Section 4(b)(3)(B) of the Act requires the Service to make a finding within 12 months following receipt of the petition on whether the requested action is warranted, not warranted, or warranted but precluded by higher-priority listing actions (this finding is referred to as the “12-month finding”). If the listing of a species is found to be warranted but precluded by higher-priority listing actions, then the petition to list that species is treated as if it is a petition that is resubmitted on the date of the finding and is, therefore, subject to a new 12-month finding within one year. The Service publishes an Annual Notice of Resubmitted Petition Findings (annual notice) for all foreign species for which listings were previously found to be warranted but precluded. On November 24, 1980, we received a petition (1980 petition) from Dr. Warren B. King, Chairman, United States Section of the International Council for Bird Preservation (ICBP), to add 79 native and foreign bird species to the list of Threatened and Endangered Wildlife (50 CFR 17.11). The species covered by the 1980 petition comprised 19 native species and 60 foreign species, including the six seabird species of the family Procellariidae that are the subject of this proposed rule. In response to the 1980 petition, we published a notice to announce a positive 90-day finding on May 12, 1981 (46 FR 26464) for 77 species, as two of the foreign species identified were already listed under the Act. On January 20, 1984, we published a 12-month finding within an annual review on pending petitions and description of progress on all ESA listing amendments (49 FR 2485). In this notice, we found that listing all 58 foreign bird species on the 1980 petition was warranted but precluded by higher-priority listing actions, however, the species were not listed by name. On May 10, 1985, we published the first annual notice (50 FR 19761) in which we continued to find that listing all 58 foreign bird species on the 1980 petition was warranted but precluded by higher-priority listing actions. In our next annual notice (51 FR 996), published on January 9, 1986, we found that listing 54 species from the 1980 petition, including the six species that are the subject of this proposed rule, continued to be warranted but precluded by higher-priority listing actions, whereas new information caused us to find that listing the four remaining species was no longer warranted. We published additional annual notices of findings on July 7, 1988 (53 FR 25511), December 29, 1988 (53 FR 52746), April 25, 1990 (55 FR 17475), November 21, 1991 (56 FR 58664), and May 21, 2004 (69 FR 29354). In addition, on September 28, 1990, we published a final rule (55 FR 39858) to list six species from the 1980 petition to the List of Threatened and Endangered Wildlife. Per the Service's listing priority guidelines that were published on September 21, 1983 (48 FR 43098), in our April 23, 2007, Annual Notice on Resubmitted Petition Findings for Foreign Species (72 FR 20184), we determined that listing the six seabird species of family Procellariidae was warranted. The six species were selected from the list of warranted but precluded species for two reasons. First, this family grouping includes more high priority species than any other taxonomic family group in our list of warranted but precluded species; and, second, because of the significance and similarity of the threats to the species. Combining taxonomically related species that face similar threats into one proposed rule allows us to maximize our limited staff resources and thus increases our ability to complete the listing process for warranted-but-precluded species. Summary of Factors Affecting the Species Section 4(a)(1) of the Act (16 U.S.C. 1533 (a)(1)) and regulations promulgated to implement the listing provisions of the Act (50 CFR part 424) set forth the procedures for adding species to the Federal lists of endangered and threatened wildlife and plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act. These factors and their application to the Chatham petrel, Cook's petrel, Fiji petrel, Galapagos petrel, magenta petrel, and Heinroth's shearwater follow. Chatham petrel (Pterodroma axillaris) A. The Present or Threatened Destruction, Modification, or Curtailment of the Habitat or Range The range of this species changes intra-annually based on an established breeding cycle. During the breeding season (November to June) (NZDOC 2001b), breeding birds return to breeding colonies to breed and nest. During the non-breeding season, birds migrate far from their breeding range where they remain at sea until returning to breed. Therefore, our analysis of Factor A is separated into analyses of:

(1)The species' breeding habitat and range, and

(2)the species' non-breeding habitat and range. BirdLife International (2007a) estimates the range of the Chatham petrel to be 436,000 km 2 (168,300 mi 2 ); however, BirdLife International

(ACAP)in November 2001, which is designed to reduce impacts of fishing operations on populations of Procellariids (ACAP 2001), however the Chatham petrel is not listed in Annex 1 to this Agreement and, therefore, is not protected under this Agreement. Therefore, implementation of this Agreement has not reduced the threat of incidental take of this species in long-line fisheries (see Factor E below). Therefore we find that existing regulatory protections have not significantly reduced or removed the threats to the Chatham petrel. E. Other Natural or Manmade Factors Affecting the Continued Existence of the Species Based on the information available, the predominant threat to the Chatham petrel is nest burrow competition between this species and the more abundant broad-billed prion, which numbers around 300,000 individuals. The prion not only occupies potential Chatham petrel burrows, but has been observed actively evicting or lethally attacking eggs, nestlings, and occasionally adults of the Chatham petrel. Such competition has resulted in a high rate of pair bond disruption and a low rate of breeding success in Chatham petrels, despite the high percentage of egg-fertility (BirdLife International 2000; NZDOC 2001b). To reduce the threat posed by competition with the broad-billed prion on South East Island, the NZDOC has implemented nest site protection efforts for the Chatham petrel, including placement of artificial nest sites and the blockage of burrows to prevent occupation by the broad-billed prion (NZDOC 2001b). During the 2005-2006 breeding season, out of 155 known breeding pairs, 83 percent of the pairs successfully fledged one chick per pair (Wikipedia 2007d). Although these actions are improving the petrel's breeding success (NZDOC 2001b; Taylor 1999, as cited in BirdLife International 2000), only a small proportion of breeding burrows occupied by Chatham petrels have been located and, therefore, protected (Taylor 1999, as cited in BirdLife International 2000). Therefore, we consider nest burrow competition between this species and the broad-billed prion to be a significant threat to the Chatham petrel. The Chatham petrel's restricted breeding range puts the species at a greater risk of extinction. Breeding colonies were once widespread throughout the Chatham Islands (NZDOC 2001b), a group of about 10 islands within a 24.85 mile [40-kilometer (km)] radius covering a total land area of 373 square miles (966 km 2 , Wikipedia 2007c). Currently, however, breeding of this species is restricted to South East Island (BirdLife International 2007a) and, as a result of recent release efforts, Pitt Island (BirdLife International News 2006), a total land area of less than 1 mi 2 (Wikipedia 2007j,k). This habitat area is insufficient for the long-term survival of the Chatham petrel, particularly since breeding pairs, eggs, and nestlings on South East Island, the primary breeding area of this species, face the pervasive threat of nest-site competition with the broad-billed prion. It is estimated that the self-sustainability of the breeding population on Pitt Island as a result of the release program will take longer than four more years to achieve (NZDOC 2001b). The Chatham petrel's restricted breeding range combined with its colonial nesting habits and small population size of 800-1,000 birds (Taylor 2000) makes the species particularly vulnerable to the threat of adverse random, naturally occurring events (e.g., cyclones, fire) that destroy breeding individuals and their breeding habitat. Fire is a high risk in the Chatham Islands because the climate is very dry during the summer, and the vegetation becomes tinder dry. If fires do occur, the remoteness of the islands renders the fires unlikely to be exterminated by human intervention. Burrow-nesting species such as the Chatham petrel are at a high risk because they are likely to suffocate from smoke inhalation or to be lethally burned inside or while attempting to escape from their burrows (Taylor 2000). Another natural disaster, severe storms, has impacted New Zealand historically, and so the likelihood of future impacts of storms is high. A severe storm in 1985 stripped two islands in the Chatham Islands chain bare of vegetation and soil cover, causing high increases in egg mortality of nesting albatrosses (Taylor 2000). Considered the worst recorded cyclone in New Zealand's history, Cyclone Giselle hit New Zealand April 10, 1968, with wind speeds of 275 km/h (Wikipedia 2007). Although we are unaware of the impact of this cyclone on the Chatham petrel's population numbers or breeding habitat, the severity of the wind or waves created by such a storm has potential to significantly damage Chatham petrel burrows. These burrows are particularly vulnerable because they are located on coastal lowlands (del Hoyo, *et al.* 1992), and they are extremely fragile, occurring in soft soils (Taylor 2000). While species with more extensive breeding ranges or higher population numbers could recover from adverse random, naturally occurring events such as fire or storms, the Chatham petrel does not have such resiliency. Its very small population size and restricted breeding range puts the species at higher risk for experiencing the irreversible adverse effects of random, naturally occurring events. Therefore, we find that the combination of factors—the species' small population size, restricted breeding range, and likelihood of adverse random, naturally occurring events—to be a significant threat to the species. We are unaware of any documented cases of incidental take of Chatham petrels by commercial long-line fishing operations or entanglement in marine debris; however, it is generally recognized that all seabirds are at high risk of injury or mortality when they attempt to take bait from long-line fishing gear. The lack of data on these impacts could be a result of the species' low population number. Dr. Michael Rands, Director and Chief Executive of BirdLife International, has reported that the number of seabirds killed in long-line fishery operations continues to increase, and the long-line fishery, especially operations by unlicensed “pirate” vessels, is the single greatest threat to all seabirds [Australian Antarctic Division

(AAD)2007; BirdLife International News 2003]. Therefore, we consider the incidental take of Chatham petrels by commercial long-line fishing operations to be a significant threat to the species. Conclusion Predation by introduced species is an ongoing threat to the Chatham petrel, which historically reduced the species' population numbers. Nest burrow competition between the Chatham petrel and the more abundant broad-billed prion is a current, on-going threat to the Chatham petrel that is of high magnitude that has not been controlled by human intervention. The broad-billed prion occupies Chatham petrel burrows, actively evicting or lethally attacking eggs, nestlings, and occasionally adults of the Chatham petrel, and as a result is reducing the Chatham petrel's population which is already very small, estimated at 800-1000 individuals. Although the NZDOC has been actively working to protect Chatham petrel nest sites from the broad-billed prion, only a small proportion of Chatham petrel breeding burrows have been located and protected (Taylor 1999, as cited in BirdLife International 2000). This threat is magnified by the fact that the impacted area is the Chatham petrel's primary breeding location, and the breeding area is extremely small, less than 1 mi 2 in size. The only other location where the species has been documented to breed is the 40 ha (98.8 acre) enclosed area on Pitt Island where Chatham Petrels were reintroduced. It is currently uncertain whether the species will maintain this portion of its range as a breeding area; as of 2006, only one pair breeding in this area had successfully reared a chick. Once a population is reduced below a certain number of individuals, it tends to rapidly decline towards extinction (Franklin 1980; Gilpin and Soule 1986; Soule 1987). The Chatham petrel's small population, combined with its restricted breeding range and colonial nesting habits makes the species particularly vulnerable to the threat of random, naturally occurring events. These catastrophic events, such as cyclones and fire, are known to occur in New Zealand and have the potential to destroy breeding individuals and their breeding habitat. The threats within the species' breeding range are compounded by the threat posed by long-line fishing in the species' non-breeding range. Although New Zealand implements measures to protect other seabird species from this threat under the Agreement on the Conservation of Albatrosses and Petrels, the Chatham petrel is not currently offered protection by this Agreement. We are unaware of any documentation on the level of Chatham petrel mortality caused by long-line fisheries; however, the number of seabirds killed in long-line fishery operations continues to increase, and the long-line fishery, especially operations by unlicensed “pirate” vessels, is the single greatest threat to all seabirds (AAD 2007; BirdLife International News 2003). Therefore, the magnitude of this threat to the species in its non-breeding range is significant. Because the survival of this species is dependent on recruitment of chicks from its breeding range, the severity of threats to the Chatham petrel within its breeding range puts the species in danger of extinction throughout its range. Therefore, we find the Chatham petrel to be in danger of extinction throughout all of its range. Because we find that the Chatham petrel is endangered throughout all of its range, there is no reason to consider its status in a significant portion of its range. Fiji petrel (Pterodroma macgillivrayi) A. The Present or Threatened Destruction, Modification, or Curtailment of the Habitat or Range Although little is known about the Fiji petrel and its life history, based on general information common to all other Procellariid species, we know that the range of the Fiji petrel changes intra-annually based on an established breeding cycle. During the breeding season, breeding birds return to breeding colonies to breed and nest. During the non-breeding season, birds migrate far from their breeding range where they remain at sea until returning to breed. Therefore, our analysis of Factor A is separated into analyses of:

(1)The species' breeding habitat and range, and

(2)the species' non-breeding habitat and range. BirdLife International (2007c) estimates the range of the Fiji petrel to be 154,000 km 2 (59,460 mi 2 ); however, BirdLife International

(1)all 12 substantiated sightings of the species on land have been on Gau Island;

(2)Procellariids return to land only for breeding purposes, and

(3)the original specimen of this species collected in 1855 was determined to be an immature bird, based on its feathers and skull morphology (Bourne 1981, as cited in Priddel, *et al.* draft; Imber 1985b; Priddel, *et al.* draft); so it is reasonable to believe that its nest was in the vicinity. Based on the locations of Fiji petrel sightings on Gau Island, the species' breeding habitat is most likely to be undisturbed mature forest on rocky, mountainous ground within the island's cloud forest highlands (del Hoyo, *et al.* 1992; RARE Conservation 2006a). Based on the nesting habits of other colonial seabirds, it has been suggested that Fiji petrels nest in close proximity to collared petrels ( *Pterodroma leucoptera* ), which nest on the ground in this rugged terrain of interior Gau Island (Watling and Lewanavanua 1985). In 1985, it was estimated that over 27 square miles (70 km 2 ) of forest habitat up to 2,346 feet (715 meters) in elevation is potentially suitable for breeding and nesting of Fiji petrels on Gau Island (Watling and Lewanavanua 1985). Unlike the lowlands of Gau Island which have been cleared to a large extent for settlement, agriculture, and forest plantations, the upland interior forests where the species is believed to breed, has not been logged (Priddel, *et al.* draft; Veitayaki 2006). The only maintained inland trail leads to a telecommunication tower on a mountain peak just below Delaco. The 3,115 inhabitants of Gau Island live in coastal villages, where the majority live by subsistence fishing and farming, maintaining gardens up to 300 m in elevation. Although low-level forestry activities occur in lowland areas, no other intensive industry or agriculture is practiced on the island (Priddel, *et al.* draft). Veitayaki

(2006)noted that the practice of shifting cultivation on Gau Island using improved machinery and the indiscriminant use of fire is rapidly progressing toward the cloud forests within the interior of the island. However, no information was provided to show this is actually occurring. Veitayaki (2006), described a community-based conservation project on Gau Island that has been in place since 2001, whereby villagers in the district of Vanuaso Tikina are collaborating with the University of the South Pacific to sustainably manage their environmental resources. Goals of the project include preservation of the upland cloud forest, adoption of sustainable land use practices, protection of drinking water, and development of alternative sources of livelihood. The success of this project has provided momentum beyond the Vanuaso Tikina district, as there is interest in incorporating the same sustainable-use practices in the other villages on Gau Island (Veitayaki 2006). In 2003, the World Resources Institute

(WRI)reported that less than 1% (.88%) of Fiji's total land area is protected to such an extent that it is preserved in its natural condition (Earth Trends 2003a). Gau Island, however, is relatively pristine compared to most areas of Fiji due to the semi-subsistence lifestyle (Veitayaki 2006). The Fiji people show great pride in the Fiji petrel, making it the emblem of the national airline (Air Fiji) and presenting it on the Fijian Fifty-dollar banknote (Priddel, *et al.* draft). Legislation has been drafted to protect the Fiji petrel's habitat on Gau Island, once nesting colonies have been located (RARE Conservation 2006a) (see Factor D, below). Because Gau Island's upland forest habitat, where the species is most likely to breed, remains in a pristine condition and does not appear to be threatened with destruction or modification, we find that the present or threatened destruction, modification, or curtailment of this species' breeding habitat or range is not a threat to the species. The Fiji petrel's range at sea is poorly known; the species has been recorded once at sea near Gau Island and once at sea 200 km (124.3 mi) north of Gau Island (Watling 2000, as cited in BirdLife International 2000; Watling and Lewanavanua 1985). We are unaware of any present or threatened destruction, modification, or curtailment of this species' current sea habitat or range. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes We are unaware of any commercial, recreational, scientific, or educational purpose for which the Fiji petrel is currently being utilized. C. Disease or Predation The greatest threat to the long-term survival of the Fiji petrel is thought to be predation on breeding birds and their eggs and chicks by introduced predators such as rats and feral cats on Gau Island (BirdLife International 2000). Since nesting colonies of Fiji petrels have not been located, predation on the Fiji petrel has not been directly observed. However, cats and Pacific rats ( *R. exulans* ) have been found in the highland forests of Gau Island, where this species is most likely to breed (Imber 1986, as cited in Priddel, *et al.* draft; Watling and Lewanavanua 1985). The path to the telecommunications transmitter on the summit of Gau Island may have facilitated the movement of feral cats and Pacific and brown rats ( *R. norvegicus* ) into the Fiji petrel's breeding habitat (Watling 2000, as cited in BirdLife International 2000). The remains of collared petrels have been found in feral cat scats and killings in the highland forests of Gau Island, where the Fiji petrel is also believed to breed. It is suggested that the collared petrel nests successfully despite this predation threat because its synchronized nesting during the first half of the year swamps cat predation. The collection of a first-flight young of the Fiji petrel on Gau Island in the month of October, however, indicates that this species has a more extended or later breeding season, putting this more sparsely populated species at greater risk of predation (Watling 1986). Cats and rats are known to have caused many local extirpations of other petrel species (Moors and Atkinson 1984, as cited in Priddel, *et al.* draft). According to Priddel, *et al.* (draft) there do not appear to be any inaccessible cliffs or mountainous ledges where Fiji petrels could nest out of the reach of cats or rats. A feral pig ( *Sus scrofa* ) population has recently established in southern areas of Gau Island and is considered an emerging threat to the Fiji petrel (Priddel *et al.* draft). Feral pigs have caused the local extinction of other species of seabirds on numerous islands (Moors and Atkinson 1984, as cited in Priddel, *et al.* draft). Protecting Fiji petrel nest sites from introduced predators by creating barriers around the nests is not possible at this time because the exact location of the nesting sites is unknown. There is no information indicating that predator eradication has been attempted on Gau Island. Even if a predator eradication program were to be implemented, protection of the nest sites would be difficult due to the permanent habitation of humans on the island. Even if cats were prohibited as pets, there is still a high potential for cats and rats to be transported to Gau Island in boats transporting humans or other shipments. Because the threat of predation by introduced cats and rats has severely impacted closely related petrel species, and there are records of these introduced predators on Gau Island, especially feral cats and rats in the highland forests of Gau where the Fiji petrel is most likely to breed, we find that predation is a significant threat to the Fiji petrel. We are unaware of any threats due to predation on Fiji petrels during the non-breeding season while the species is at sea. Although several diseases have been documented in other species of petrels (see Chatham petrel Factor C), disease has not been documented in the Fiji petrel. Therefore, the significance of this threat to the Fiji petrel is unknown. D. The Inadequacy of Existing Regulatory Mechanisms Although the Fiji petrel is protected from international trade under Fijian law (Government of Fiji 2002, 2003), this protection has not significantly reduced or removed the threat of predation within the species' breeding range, nor has it reduced the threat posed by long-line fisheries (see Factor E below) within its range at sea. Community awareness of the conservation significance of the Fiji petrel has been promoted in Fiji. From 2002-2004, Milika Rati, a local conservationist on Gau Island, led a “Pride campaign” (RARE Conservation 2006a), a constituency-building program developed by the conservation organization RARE (RARE Conservation 2006b). Ms. Rati chose the Fiji petrel as the flagship mascot for this movement and used a series of high-profile activities to raise awareness of the conservation urgency of the species. This campaign resulted in a confirmed sighting of a Fiji petrel (RARE Conservation 2006a). A follow-up survey to the campaign revealed that 99 percent of the participants believed natural resource protection to be important, and 94 percent were aware that the Fiji petrel is at risk of extinction. Based on increased public awareness of the Pride campaign, a formal agreement supporting the creation of a bird sanctuary for the species was signed by all 16 of Fiji's village chiefs (RARE Conservation 2006a). The Australian Regional National Heritage Programme continues to fund the Pride campaign on Gau Island. The Wildlife Conservation Society, BirdLife International, and the National Trust of the Fiji Islands are collaborating to work towards implementation of conservation recommendations made by Ms. Rati, including minimizing predators (RARE Conservation 2006a). Although the Fiji petrel is protected from international trade (Government of Fiji 2002, 2003) by Fijian law and public awareness and support for the species' protection on Gau Island is strong, these conservation measures have not significantly reduced the threats to the species. E. Other Natural or Manmade Factors Affecting the Continued Existence of the Species Because of the paucity of recorded sightings of this species (see discussion of Factor A above), the population is apparently very small. The IUCN estimates the population to be less than 50 individuals, with a decreasing trend due to predation by introduced predators (BirdLife International 2007c). Species with such small population sizes are at greater risk of extinction. Once a population is reduced below a certain number of individuals, it tends to rapidly decline towards extinction (Franklin 1980; Gilpin and Soule 1986; Soule 1987). This species' risk of extinction is further compounded by its restricted current breeding range, which according to the best available information is limited to Gau Island, where an estimated 27 square miles (70 km 2 ) of potential breeding habitat is available. However, based on what is known about the species, this is considered a relatively small amount of appropriate habitat for breeding, particularly since breeding pairs, eggs, and nestlings on Gau Island face the pervasive threat of predation by introduced species such as feral cats and rats. The Fiji petrel's restricted breeding range combined with its colonial nesting habits and small population size of less than 50 birds (BirdLife International 2007c) makes the species particularly vulnerable to the threat of adverse random, naturally occurring events (e.g., cyclones, flooding, and landslides) that destroy breeding individuals and their breeding habitat. Fiji is vulnerable to the devastating affects of cyclones inter-annually between November and April. On average, 15 cyclones affect this country each decade (World Meteorological Organization 2004). The most severe cyclone in within the past 100 years was cyclone Kina in January, 1993, with wind speeds of 120 knots spanning an area 180 miles (289.7 km) from its center. The Government of Fiji declared the area a disaster, because virtually all areas of Fiji were impacted by this cyclone and the associated flooding (UN Department of Humanitarian Affairs 1993). Landslides are common in Fiji's mountainous areas during these severe weather conditions (World Meteorological Organization 2004), and would be particularly threatening to breeding Fiji petrels and their breeding habitat. While species with more extensive breeding ranges or higher population numbers could recover from adverse random, naturally occurring events such as cyclones, the Fiji petrel does not have such resiliency. Its very small population size and restricted breeding range puts the species at higher risk for experiencing the irreversible adverse effects of random, naturally occurring events. One such event could destroy the entire known breeding population on Gau Island. Therefore, we find that the combination of factors—the species' small population size, restricted breeding range, and likelihood of adverse random, naturally occurring events—to be a significant threat to the species. Although we are unaware of any documented cases of incidental take of Fiji petrels by commercial long-line fishing operations or entanglement in marine debris, these long-line fishing operations have been identified as a threat to all seabird species (see analysis under Chatham petrel, Factor E). Moreover, the lack of data on these impacts to the Fiji petrel could be a result of the species' low population number. Therefore, we find the incidental take of Fiji petrels by commercial long-line fishing operations to be a significant threat to the species. Conclusion The primary threat to the Fiji petrel is most likely predation by introduced feral cats and rats within the species' breeding range. The probability of introduced predators preying on this species is high given that introduced feral cats are documented to prey upon the closely related collared petrel in the interior forests of Gau Island where the Fiji petrel is most likely to nest. Furthermore, the devastating impact of predation by introduced species has been documented in several closely-related species. There is no information indicating that predator eradication has been attempted on Gau Island. This threat is magnified by the fact that the threat likely threatens the species throughout its breeding range, the interior forests of Gau Island. Although the Fiji petrel is legally protected from international trade, to our knowledge Fiji has not successfully implemented measures to protect the species from the threat of predation. The Fiji petrel's low population size of less than 50 individuals puts the species at a high risk of extinction. The low population size combined with its restricted breeding and colonial nesting habits, typical of all Procellariid species, makes the species particularly vulnerable to the threat of random, naturally occurring events (e.g., cyclones) that are known to occur in Fiji and have the potential to destroy breeding individuals and their breeding habitat. The threats within the species' breeding range are compounded by the threat posed by long-line fishing in the species' non-breeding range. There is no information indicating that Fiji has implemented measures to protect the species from long-line fishery activities. However, because the survival of this species is dependent on recruitment of chicks from its breeding range, the severity of threats to the Fiji petrel within its breeding range puts the species in danger of extinction throughout all of its range. Therefore, we find the Fiji petrel to be in danger of extinction throughout all of its range. Because we find that the Fiji petrel is endangered throughout all of its range, there is no reason to consider its status in a significant portion of its range. Magenta petrel (Pterodroma magentae) A. The Present or Threatened Destruction, Modification, or Curtailment of the Habitat or Range of the Magenta Petrel The range of this species changes intra-annually based on an established breeding cycle. During the breeding season (September to May) (Imber, *et al.* 1994b; Taylor 1991), breeding birds return to breeding colonies to breed and nest. During the non-breeding season, birds migrate far from their breeding range where they remain at sea until returning to breed. Therefore, our analysis of Factor A is separated into analyses of:

(1)The species' breeding habitat and range, and

(2)the species' non-breeding habitat and range. BirdLife International (2007d) estimates the range of the magenta petrel to be 1,960,000 km 2 (7,568,000 mi 2 ); however, BirdLife International

(2000)identifies flooding of burrows as a threat, given that most known burrows are in wet areas in valley floors. He also notes that destruction of nest-sites by pigs and dogs accompanying pig-hunters near the burrows threatens the magenta petrel's breeding habitat. These threats to the magenta petrel's breeding habitat are magnified by the species' restricted habitat area on Chatham Island. Because of the very small number of breeding pairs, any loss of breeders from the population would increase the species' threat of extinction. Therefore, we find that the present and threatened destruction of the habitat of this species to be a significant threat to the species. The magenta petrel's range at sea is poorly known; however, research has documented foraging behavior south and east of the Chatham Islands (Imber, *et al.* 1994a). In addition, because the original specimen of this species was shot at sea eastwards in the temperate South Pacific Ocean, it is believed birds disperse there during the non-breeding season. We are unaware of any present or threatened destruction, modification, or curtailment of this species' current sea habitat or range. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes We are unaware of any commercial, recreational, scientific, or educational purpose for which the magenta petrel is currently being utilized. C. Disease or Predation The available information suggests that the most serious threat to the magenta petrel is predation on all life stages (eggs, chicks, and adults) of the species by introduced predators, including feral cats, pigs, weka, and rats. It is reported that periodically the species' entire annual breeding production is lost due to predation of eggs and chicks (BirdLife International 2007d). Permanent eradication of these introduced predators from Chatham Island is difficult due to the permanent habitation of humans on the island. Since the early 1990's, however, the NZDOC has monitored known breeding burrows and has implemented an intensive predator control program, including setting extensive trap lines and poisoning to remove introduced predators from the magenta petrel's breeding areas (Taylor 2000). This effort has significantly reduced the threat of predation on adult petrels, with only two being found dead in 20 years, as of the year 2000. However, a number of chicks are still lost in some seasons (Imber, *et al.* 1998). As additional burrows have been located and protection from predation expanded over the years, breeding has increased and breeding success has improved. In 1994, only four breeding pairs were known, but in 2004, 15 breeding pairs were observed (Brooke 2004, Hilhorst 2000, Taylor 2005, as cited in BirdLife International 2007d). Sixteen chicks were known to have fledged from 1987-2000 (Taylor 2000), and within a single year, 2002, a total of seven chicks fledged (BirdLife International 2007d). Eight birds fledged in the 2005 season, and a record 11 magenta petrel chicks fledged in the 2006 season (Chatham Island Taiko Trust 2006). Even though the predator control program has decreased the threat of predation to the magenta petrel, birds, especially chicks, are still killed by introduced predators, and only areas where petrels are known to breed are protected. Therefore, we find predation by introduced species to be a significant threat to the species. We are unaware of any threats due to predation on magenta petrels during the non-breeding season while the species is at sea. Although several diseases have been documented in other species of petrels (see Chatham petrel Factor C), disease has not been documented in the magenta petrel. Therefore, the significance of this threat to this species is unknown. D. The Inadequacy of Existing Regulatory Mechanisms The magenta petrel is protected from disturbance and harvest under New Zealand's Wildlife Act of 1953 and its Reserves Act of 1977. The petrel is designated as a Category A species by the NZDOC, which signifies the species is of the highest priority for conservation management (Molloy and Davis 1999). As such, the NZDOC developed a ten-year recovery plan for the magenta petrel in 2001, with the goals of preventing further loss of known breeding pairs, maximizing productivity at known breeding burrows, locating and protecting additional burrows, and establishing an additional predator-proof breeding area in southern Chatham Island (NZDOC 2001a). A measure of success of the recovery plan has been demonstrated by the successful protection of breeding pairs and increased productivity resulting from predator control efforts (see Factor C above). However, the threat of predation on magenta petrels by introduced species remains the greatest threat to the species. In 2006, a second protected area was established near the southern coast of Chatham Island at a location where magenta petrels were known to have bred in reasonable numbers 90 years ago. This 7.5-ha area, protected by landowner covenant, has been fenced to exclude livestock in an effort to allow the forest to recover. Within this area, 3 ha are enclosed by a predator-proof fence. Loudspeakers were placed on the site, and pre-recorded magenta petrel calls are being played to attract young males to the ground where it is hoped they will begin to dig burrows and eventually find a mate to breed. It is too early to know the success of this effort because it is anticipated that it will take several years for breeding to begin once young males start digging burrows. Captive rearing studies of the closely related grey-faced petrel ( *P. macroptera* ) have been undertaken, and its diet analyzed, to develop methods for captive rearing of magenta petrels in captivity should it ever be necessary to ‘rescue' abandoned or malnourished magenta petrel chicks (NZDOC 2001a; Taylor 2000). New Zealand ratified the Agreement on the Conservation of Albatrosses and Petrels in November 2001, which is designed to reduce impacts of fishing operations on populations of Procellariids (ACAP 2001), however the magenta petrel is not listed in Annex 1 to this Agreement and, therefore, is not protected under this Agreement. Therefore, implementation of this Agreement has not significantly reduced or removed the threat of incidental take of this species in long-line fisheries (see Factor E below). Therefore, we find that regulatory protections have not significantly reduced the threats to the magenta petrel. E. Other Natural or Manmade Factors Affecting the Continued Existence of the Species The magenta petrel population is extremely small, estimated at 120 individuals based on population surveys (Brooke 2004, Hilhorst 2000, Taylor 2005, as cited in BirdLife International 2007d) and is believed to be decreasing due to predation by introduced species (BirdLife International 2007d). The fact that it took 10 years of intensive searching to rediscover the species in 1978 is an indication of the rarity of the species. Species with such small population sizes are at greater risk of extinction. Once a population is reduced below a certain number of individuals, it tends to rapidly decline towards extinction (Franklin 1980; Gilpin and Soule 1986; Soule 1987). This species' risk of extinction is compounded by its restricted breeding range, which is limited to Chatham Island. Based on what is known about the species, the breeding habitat available on Chatham Island is a relatively small amount of appropriate habitat for breeding, particularly since breeding pairs, eggs, and nestlings on Chatham Island continue to be threatened by introduced species such as feral cats and rats. The magenta petrel's restricted breeding range combined with its colonial nesting habits and small population size of less than approximately 120 birds makes the species particularly vulnerable to the threat of adverse random, naturally occurring events (e.g., storms, fire) that destroy breeding individuals and their breeding habitat (NCDOC 2001b). Fire is a high risk in the Chatham Islands because the climate is very dry during the summer, and the vegetation becomes tinder dry. Burrow-nesting species such as the magenta petrel are at a high risk because they are likely to suffocate from smoke inhalation or to be lethally burned inside or while attempting to escape from their burrows (Taylor 2000). Another natural disaster, severe storms, has impacted New Zealand historically (see Chatham petrel discussion of Factor E), and so the likelihood of future impacts of storms is high. Although we are unaware of the impact of previous cyclones on the magenta petrel's population numbers or breeding habitat, the severity of the wind or waves created by such storms or flooding associated with storms has potential to significantly damage magenta petrel burrows. These known burrows are particularly vulnerable to flooding because they are located on valley floors (NZDOC 2001a). While species with more extensive breeding ranges or higher population numbers could recover from adverse random, naturally occurring events such as fire or storms, the magenta petrel does not have such resiliency. Its very small population size and restricted breeding range puts the species at higher risk for experiencing the irreversible adverse effects of random, naturally occurring events. One such event could destroy the entire known breeding population on Chatham Island. Therefore, we find that the combination of factors—the species' small population size, restricted breeding range, and likelihood of adverse random, naturally occurring events—to be a significant threat to the species. Although we are unaware of any documented cases of incidental take of magenta petrels by commercial long-line fishing operations or entanglement in marine debris, these long-line fishing operations have been identified as a threat to all seabird species (see analysis under Chatham petrel, Factor E). Moreover, the lack of data on these impacts to the magenta petrel could be a result of the species' low population number. Therefore, we find the incidental take of magenta petrels by commercial long-line fishing operations to be a significant threat to the species. Conclusion Predation by introduced species such as rats, weka, and feral cats and pigs is a current, on-going threat to the magenta petrel that is of high magnitude that has not been controlled by human intervention. These introduced predators are known to destroy magenta petrel eggs, chicks, and adults, reducing the species' population (NZDOC 2001a), which is already very small, estimated at 120 individuals. Although the NZDOC has been actively working to protect magenta petrel nest sites from predation by introduced species, a number of chicks are still lost in some seasons (Imber, *et al.* 1998), and the breeding burrows that have not yet been located are not protected. This threat is magnified by the fact that a limited amount of breeding habitat is protected from habitat alteration or destruction. The breeding habitat that is protected remains at risk from accidental fires and flooding. The magenta petrel's low population size of approximately 120 individuals puts the species at a high risk of extinction. The low population size combined with its restricted breeding habitat and colonial nesting habits makes the species particularly vulnerable to the threat of random, naturally occurring events (e.g., cyclones, fire) that are known to occur in New Zealand and have the potential to destroy breeding individuals and their breeding habitat. One such event, such as a cyclone during the nesting season could destroy the entire breeding population on Chatham Island. The threats within the species' breeding range are compounded by the threat posed by long-line fishing in the species' non-breeding range. Although New Zealand implements measures to protect other seabird species from this threat under the Agreement on the Conservation of Albatrosses and Petrels, the magenta petrel is not currently offered protection by this Agreement. Because the survival of this species is dependent on recruitment of chicks from its breeding range, the severity of threats to the magenta petrel within its breeding range puts the species in danger of extinction throughout all of its range. Therefore, we find the magenta petrel to be in danger of extinction throughout all of its range. Because we find that the magenta petrel is endangered throughout all of its range, there is no reason to consider its status in a significant portion of its range. Cook's petrel (Pterodroma cookii) A. The Present or Threatened Destruction, Modification, or Curtailment of the Habitat or Range The range of this species changes intra-annually based on an established breeding cycle. During the breeding season, which appears to vary by population (Taylor 2000), breeding birds return to breeding colonies to breed and nest. During the non-breeding season, birds migrate far from their breeding range where they remain at sea until returning to breed. Therefore, our analysis of Factor A is separated into analyses of:

(1)The species' breeding habitat and range, and

(2)the species' non-breeding habitat and range. BirdLife International (2007b) estimates the range of the Cook's petrel to be 76,300,000 km 2 (29,460,000 mi 2 ); however, BirdLife International

(2000)defines “range” as the “Extent of Occurrence, the area contained within the shortest continuous imaginary boundary which can be drawn to encompass all the known, inferred, or projected sites of present occurrence of a species, excluding cases of vagrancy.” Because this reported range includes a large area of non-breeding habitat (i.e., the sea), our analysis of Factor A with respect to the Cook's petrel's breeding range focuses on the islands where the species is known to breed. The Cook's petrel breeds on Little Barrier, Great Barrier, and Codfish Islands in the Chatham Islands, New Zealand, covering a total land area of 126 square miles (327 km 2 , Wikipedia 2007e,g,h). The species breeds on steep slopes near ridge tops at 984 feet (300 m) above sea level or higher and prefers unmodified forest habitat with low, open canopies (Rayner, *et al.* 2007b). Fire is unlikely to be a threat to this species' breeding habitat because Cook's petrels breed primarily in damp forests (Imber 1985a, as cited in Taylor 2000). Breeding burrows are usually long and deep among tree roots and are not easily collapsed; so trampling by introduced species is not likely to be a threat to Cook's petrel nest sites (Taylor 2000). According to the best available information, a large amount of suitable habitat is available to the Cook's petrel on the three islands where it breeds. Of these islands, the largest, the Great Barrier Island covering 110 square miles (285 km 2 ), is the only one that has a permanent human population. This small population of 1,100 people is located primarily within coastal settlements, away from the species' breeding habitat. Inhabitants mostly make a living from farming and the tourist industry, but the island is not considered a major tourist destination due to its relative remoteness (Wikipedia 2007g). There is no indication that the Cook's petrel's breeding habitat on Great Barrier Island is threatened with human-induced habitat destruction or modification. The other two islands, Little Barrier and Codfish Islands, covering 11 and 5 square miles (28 km 2 and 14 km 2 ), respectively, are wildlife sanctuaries with restricted access. These islands are not inhabited by humans aside from rotational conservation staff (Wikipedia 2007e,h). Therefore, the Cook's petrel's breeding habitat on these islands is not threatened with human-induced habitat destruction or modification. In 2004, the Maungatautari Ecological Island Trust prepared “An Ecological Restoration Plan for Maungatautari,” which outlined suggested restoration of habitat and the removal of threats to attract or reintroduce Cook's petrel to the North Island in the Chatham Islands chain (McQueen 2004). The Trust has established a 13 square mile (34 km 2 ) predator exclosure to protect nest sites, and research is now underway to investigate reintroduction of the Cook's petrel to Maungatautari (Rayner, *et al.* 2007a). If successful, this effort would expand the breeding range of the species. Based on the lack of identified threats to the Cook's petrel's breeding habitat within its breeding range, we find that the present or threatened destruction, modification, or curtailment of the species' habitat or range is not a threat to the species. During the non-breeding season, the Cook's petrel migrates to the east Pacific Ocean, primarily between 34 °S and 30 °N (Heather and Robertson 1997, as cited in BirdLife International 2000). We are unaware of any present or threatened destruction, modification, or curtailment of this species' current sea habitat or range. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes We are unaware of any commercial, recreational, scientific, or educational purpose for which the Cook's petrel is currently being utilized. C. Disease or Predation The introduction of predatory species by European settlers is believed to have contributed to the historical population decline in this species. The best available information indicates that the Codfish Island population declined due to predation by an introduced bird, the weka (Marchant and Higgins 1990, as cited in BirdLife International 2000). In 1934, there were an estimated 20,000 breeding pairs on Codfish Island, but weka predation reduced the population to 100 pairs by 1984 (Bartle, *et al.* 1993, as cited in Taylor 2000). On Little Barrier and Great Barrier Islands, introduced feral cats and the Pacific rat reduced population numbers. The black rat ( *R. rattus* ) also contributed to the decline on Great Barrier Island (Heather and Robertson 1997, Marchant and Higgins 1990, as cited in BirdLife International 2000; Taylor 2000). Due to extensive predator eradication programs implemented by NZDOC, by 1980, feral cats had been eradicated from Little Barrier Island. By 1985, weka had been eradicated from Codfish Island (Taylor 2000). Rats had been successfully eradicated from Codfish Island by 1998 and from Little Barrier Island by 2006 (NZDOC 2006). Although the introduced predators that threaten Cook's petrels have been eradicated from Little Barrier and Codfish Islands, introduced predators have not been removed from Great Barrier Island. As a result, the Cook's petrel population on Great Barrier Island, which has been reduced to 20 breeding pairs, continues to be severely threatened by introduced feral cats, the black rat, and the Pacific rat (Marchant and Higgins 1990, as cited in BirdLife International 2000), and the risk of local extinction of this species is high. Loss of this population would decrease the genetic diversity of the species, increasing the species' risk of extinction. Even on Little Barrier and Codfish Islands where introduced predators have been removed, there is a continued risk that predators will be re-introduced to the island by boats transporting conservation and research staff to the islands. Given the magnitude of the devastation these species have, once introduced, and the likelihood that they could be re-introduced, we find introduced predators to be an ongoing threat to Cook's petrel populations on Little Barrier and Codfish Islands. We are unaware of any threats due to predation on Cook's petrels during the non-breeding season while the species is at sea. Although several diseases have been documented in other species of petrels (see Chatham petrel Factor C), disease has not been documented in the Cook's petrel. Therefore, the significance of this threat to this species is unknown. D. The Inadequacy of Existing Regulatory Mechanisms The Cook's petrel is protected from disturbance and harvest under New Zealand's Wildlife Act of 1953 and its Reserves Act of 1977. The petrel is designated as a Category C species by the NZDOC, which signifies the species is a third priority species for conservation management (Molloy and Davis 1999). As discussed in Factor C above, predator eradication efforts have not adequately reduced the threat of predation on the species. New Zealand ratified the Agreement on the Conservation of Albatrosses and Petrels in November 2001, which is designed to reduce impacts of fishing operations on populations of Procellariids (ACAP 2001), however the Cook's petrel is not listed in Annex 1 to this Agreement and, therefore, is not protected under this Agreement. Therefore, implementation of this Agreement has not significantly reduced or removed the threat of incidental take of this species in long-line fisheries (see Factor E below). Because the available regulatory protections have not significantly reduced the threats to the Cook's petrel, and this species is a lower priority species for intensive conservation management, we find that regulatory protections have not significantly reduced the threats to the species. E. Other Natural or Manmade Factors Affecting the Continued Existence of the Species Although we are unaware of any documented cases of incidental take of Cook's petrels by commercial long-line fishing operations or entanglement in marine debris, these long-line fishing operations have been identified as a threat to all seabird species (see the Chatham petrel Factor E). Therefore, we consider the incidental take of Cook's petrels by commercial long-line fishing operations to be a significant threat to the species. Conclusion The primary threat to the Cook's petrel is predation by introduced feral cats, the black rat, and the Pacific rat within the species' breeding range, particularly on Great Barrier Island. Eradication of introduced predators on this island is difficult due to the permanent habitation of humans on the island; so this threat on Great Barrier Island is likely to persist. This threat, combined with the low number of breeding pairs (approximately 20) on Great Barrier Island is likely to result in local extinction. The threats within the species' breeding range are compounded by the threat posed by long-line fishing in the species' non-breeding range. Although New Zealand implements measures to protect other seabird species from this threat under the Agreement on the Conservation of Albatrosses and Petrels, the Cook's petrel is not currently offered protection by this Agreement. Because the survival of this species is dependent on recruitment of chicks from its breeding range, the threats to this species within its breeding range put the species at risk. The overall population number of the Cook's petrel is not low, and the two largest populations of this species, those breeding on Little Barrier and Codfish Islands, with 50,000 and 100 pairs, respectively are reported to be increasing (Marchant and Higgins 1990, as cited in BirdLife International 2000; Taylor 2000). As a result, the species does not currently appear to be in danger of extinction. However, there is a high risk of local extinction on Great Barrier Island within the foreseeable future. The loss of the breeding birds on Great Barrier Island would not only impact the overall species' population growth but would decrease its genetic variability, increasing the Cook's petrel's risk of extinction throughout its range. Therefore, we find that the Cook's petrel is likely to become in danger of extinction within the foreseeable future throughout all of its range. Because we find that the Cook's petrel is likely to become in danger of extinction within the foreseeable future throughout all of its range, there is no reason to consider its status in a significant portion of its range. Galapagos petrel ( *Pterodroma phaeopygia* ) A. The Present or Threatened Destruction, Modification, or Curtailment of the Habitat or Range As in other Procellariid species, the range of the Galapagos petrel changes intra-annually based on an established breeding cycle. During the breeding season, breeding birds return to breeding colonies to breed and nest. During the non-breeding season, birds migrate far from their breeding range where they remain at sea until returning to breed. Therefore, our analysis of Factor A is separated into analyses of:

(1)The species' breeding habitat and range, and

(2)the species' non-breeding habitat and range. BirdLife International (2007e) estimates the range of the Galapagos petrel to be 14,200,000 km 2 (5,483,000 mi 2 ); however, BirdLife International

(GNPS)and the Charles Darwin Foundation initiated ‘Project Isabela,’ an ecological restoration program which required removal of all feral goats from Santiago and northern Isabela Islands [Note: northern Isabela is separated from southern Isabela by a 12 km-wide lava field (Charles Darwin Foundation 2006)]. In 2006, the GNPS announced that no feral goats could be found in these areas, noting that monitoring efforts would continue to ensure successful eradication [Charles Darwin Research Station

(CDRS)2006]. Concurrent with the goat eradification program, feral donkeys were removed from Santiago Island and Alcedo Volcano on northern Isabela Island (Carrion, *et al.* 2007). After a 30-year eradication program, feral pigs were successfully removed from Santiago Island, with the last pig being shot in April, 2000 (Cruz, *et al.* 2005). Despite the success of these eradication efforts, introduced species, especially feral goats, continue to threaten Galapagos petrel habitat on the human populated islands of Santa Cruz, Floreana, San Cristóbal, and southern Isabela. Feral goats are especially problematic in areas bordering farmland, and eradication of feral livestock in these human population areas is difficult (CDRS 2006). Based on the widespread and ongoing threats of farming activities and introduced species to the Galapagos petrels' breeding habitat, we find that the present and threatened destruction of this species' breeding habitat is a threat to the species. The Galapagos petrel's range at sea is poorly known; however, research has documented foraging behavior around the Galapagos islands, as well as east and north of the islands. We are unaware of any present or threatened destruction, modification, or curtailment of this species' current sea habitat or range. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes We are unaware of any commercial, recreational, scientific, or educational purpose for which the Galapagos petrel is currently being utilized. C. Disease or Predation The threat of predation on the Galapagos petrel is exemplified by the rapid decline of populations of this species in the early 1980s as a result of predation by introduced species, such as dogs ( *Canis lupus familiaris* ), cats, pigs, and black and brown rats (BirdLife International 2007e; Cruz and Cruz 1996), supplemented by natural predation by the Galapagos hawk ( *Buteo galapagoensis* ) (Cruz and Cruz 1996). In some cases, these population declines were as high as 81 percent over four years (BirdLife International 2007e). From 1980 to 1985, the population on Santa Cruz Island declined from an estimated 9,000 pairs to 1,000 pairs (Baker 1980, as cited in BirdLife International 2000; Cruz and Cruz 1987). During the same time period, the Santiago Island population declined from 11,250 pairs to less than 500 pairs (Cruz and Cruz 1987; Tomkins 1985, as cited in BirdLife International 2000), and the number of birds breeding on Floreana Islands was estimated to have been reduced by up to 33% annually for four years (Coulter, *et al.* 1981, as cited in BirdLife International 2000). Introduced feral dogs, cats, and pigs are common predators of all life stages (eggs, chicks, fledglings, and adults) of the Galapagos petrel (Cruz and Cruz 1987, 1996). Eggs and hatchlings are eaten by black and brown rats (BirdLife International 2007e). Adding to predation by introduced species, the Galapagos hawk has been known to further reduce population numbers; young and aged petrels are particularly vulnerable to this predator. In 1985, monitoring of 510 adult Galapagos petrels on Santiago Island showed that the species' mortality rate due to predation by pigs and Galapagos hawks was greater than 50 percent (BirdLife International 2007e). Predator control and petrel monitoring programs are currently in place on Floreana, Santa Cruz, and Santiago Islands (Vargus and Cruz 2000, as cited in BirdLife International 2000). Eradication efforts to remove feral pigs, which eat nestlings, juvenile, and adult petrels on Santiago Island, succeeded by the end of 2000 (Cruz, *et al.* 2005). Re-colonization of pigs on Santiago Island is not likely since the island is not inhabited by humans, and there are no farming zones on the island where pigs could be placed. Predation by introduced rats and cats continue to pose a predation threat to Galapagos petrels on Santiago Island, compounded by predation by the Galapagos hawk. Efforts are underway on Santiago Island to remove introduced rats, but there is no information to indicate that eradication has been achieved. Although pigs were removed from Santiago Island, they continue to threaten the Galapagos petrel on the other four islands where the petrel is known to breed. Although predation by pigs, as well as cats, rats, and dogs, on Floreana and Santa Cruz Islands continues to threaten the Galapagos petrel, predator control efforts have been initiated on these two islands and are beginning to show some success in reducing the threat to Galapagos petrels. For example, prior to predator control efforts on Floreana Island, only 33 percent of the banded Cerro Pajas colony of the Galapagos petrel population returned to breed and nest as adults (Coulter, *et al.* 1982, as cited in Cruz and Cruz 1990a). In 1982, predator control was initiated on this island (Cruz and Cruz 1990a), and by 1985, return rates for banded birds was 80-90 percent due to the predator control program (Cruz and Cruz 1990a). To emphasize the significance of such a reduction in predation on adults, with respect to petrel population growth, the Hawaiian dark-rumped petrel ( *Pterodroma sandwichensis* ), a species related to the Galapagos petrel, exhibited a 5 percent annual decline in its population size when adult survival rates were reduced as low as 10 percent (Simons 1984). There is no information to indicate that there have been predator control efforts on San Cristóbal or Isabela Islands where cats, rats, dogs, and pigs continue to threaten the species. Although the threat of predation by pigs on Santiago Island has been eliminated and the threat of predation is being reduced on Floreana and Santa Cruz Islands, the Galapagos petrel continues to be threatened by one or more predators on all of the islands within the species' breeding range. This threat has been shown to result in rapid population declines. Therefore, we find predation to be a threat to the Galapagos petrel. We are unaware of any threats due to predation on Galapagos petrels during the non-breeding season while the species is at sea. While several diseases have been documented in other species of petrels (see Chatham petrel Factor C), disease has not been documented in the Galapagos petrel. Therefore, the significance of this threat to this species is unknown. D. The Inadequacy of Existing Regulatory Mechanisms Ecuador is a member of ACAP, which is designed to reduce impacts of fishing operations on populations of Procellariids (ACAP 2001), however the Galapagos petrel is not listed in Annex 1 to this Agreement and, therefore, is not protected under this Agreement. Therefore, implementation of this Agreement has not significantly removed or reduced the threat of incidental take of this species in long-line fisheries (see Factor E below). Ecuador designated the Galapagos Islands as a national park, and the islands were declared a World Heritage Site in 1979 (BirdLife International 2000); however these protections have not eliminated the threat of predation nor the threat of nest-site destruction by livestock (BirdLife International 2007e). E. Other Natural or Manmade Factors Affecting the Continued Existence of the Species Oil and chemical spills can have direct effects on Galapagos petrel populations, and based on previous incidents, we consider this a significant threat to the species. For example, on January 16, 2001, a tanker ran aground at Schiavoni Reef, about 2,625 feet (800 meters) from Puerto Baquerizo Moreno on San Cristóbal Island (Woram 2007). By January 28, 2001, the slick reached the islands of Isabela and Floreana. Only one Galapagos petrel from Cristóbal Island is documented to have died; however, 370 large animals were reported to be contaminated by oil. The total effect of the oil spill on Galapagos petrels and other species is difficult to quantify for a variety of reasons. Due to the behavior of ocean-dependent species and the high toxicity of diesel, many affected animals might have died and sunk undetected. In addition, the effects of oiling may be highly localized, given the vastness of the Galapagos coastline, thereby making detection unlikely. Finally, because the long-term effects of oiling were not monitored, the total mortality from this event is likely underestimated (Lougheed, *et al.* 2002). Although we are unaware of any documented cases of incidental take of Galapagos petrels by commercial long-line fishing operations or entanglement in marine debris, these long-line fishing operations have been identified as a threat to all seabird species (see the Chatham petrel discussion of Factor E). Therefore, we consider the incidental take of the Galapagos petrel by commercial long-line fishing operations to be a significant threat to the species. Barbed wire fences on agricultural lands cause mortality in adult Galapagos petrels (BirdLife International 2007e). With the exception of Santiago Island, agricultural lands are present throughout the species' breeding range. Although there is no information available regarding the numbers and trends of mortality due to fences, this source of mortality in combination with other threats from long-line fishing operations and chemical and oil spills poses a significant risk to the survival of the species. There is evidence that the productivity of Galapagos petrel populations is indirectly affected by fluctuations in ocean temperatures and currents, which impact the Galapagos petrel's prey base. During the El Niño-Southern Oscillation

(ENSO)of 1982-1983, Cruz and Cruz (1990b) found that the growth rate of Galapagos petrel chicks was lower and fledging occurred later than in other years. These so-called “ENSO chicks” reached a lower peak mass at a later age than non-ENSO chicks. The extended nestling period and reduced growth rates of ENSO chicks are believed to reflect a decline in the availability of food resources because of diminishing ocean productivity during the ENSO. No information is available on the long-term effect on petrel population productivity due to this change in ocean temperatures and currents, and, therefore, the significance of this threat to the Galapagos petrel is indeterminate. Conclusion In the 1980's, the Galapagos petrel declined as much as 81% in four years due primarily to predation by introduced predators. According to BirdLife International (2007e), conservation efforts have slowed but not halted the population decline. Despite predator control efforts, the Galapagos petrel continues to be threatened by one or more predators on all of the islands within the species' breeding range. The Galapagos petrel's breeding habitat is also threatened by introduced species, especially feral goats, on the islands of Santa Cruz, Floreana, San Cristóbal, and southern Isabela, where barbed wire fences contribute to the decline in the number of adult Galapagos petrels. The threats within the species' breeding range are compounded by the threats to the species within its range at sea. Oil spills can have direct effects on Galapagos petrel populations, and based on the occurrence of a previous incident within the species' range at sea, we consider this a significant threat to the species. Incidental take from long-line fishing in the species' range at sea is an additional threat to the species. Although Ecuador implements measures to protect other seabird species from this threat under the Agreement on the Conservation of Albatrosses and Petrels, the Galapagos petrel is not currently offered protection by this Agreement. Because the survival of this species is dependent on recruitment of chicks from its breeding range, the threats to this species within its breeding range puts the species at risk. The overall population number of the Galapagos petrel is not low, estimated at 20,000 to 60,000 birds (BirdLife International 2007e). As a result, the species does not currently appear to be in danger of extinction. However, as the population numbers continue to decline as a result of the threats discussed above, the risk of extinction of this species continues to increase. Therefore, we find that the Galapagos petrel is likely to become in danger of extinction within the foreseeable future throughout all of its range. Because we find that the Galapagos petrel is likely to become in danger of extinction within the foreseeable future throughout all of its range, there is no reason to consider its status in a significant portion of its range. Heinroth's shearwater ( *Puffinus heinrothi* ) A. The Present or Threatened Destruction, Modification, or Curtailment of the Habitat or Range Although little is known about Heinroth's shearwater and its life history, based on general information common to all other Procellariid species, we know that the range of the species changes intra-annually based on an established breeding cycle. During the breeding season, breeding birds return to breeding colonies to breed and nest. During the non-breeding season, birds migrate far from their breeding range where they remain at sea until returning to breed. Therefore, our analysis of Factor A is separated into analyses of:

(1)The species' breeding habitat and range, and

(2)the species' non-breeding habitat and range. BirdLife International (2007f) estimates the breeding range of Heinroth's shearwater to be 400,000 km 2 (154,400 mi 2 ); however, BirdLife International

(CIA)2007a; United Nations System-Wide Earthwatch 1998a; Wikipedia 2007a]. Exploitation of Papua New Guinea's natural resources has been hindered due to the islands' rugged terrain and the high cost of developing infrastructure (CIA 2007a). We are, therefore, unaware of any present or threatened destruction, modification, or curtailment of the Heinroth's shearwater's current breeding habitat on Bougainville Island. The forests on the islands of Kolombangara and Rendova, with land areas of 687.8 km 2 (265.6 mi 2 ) and 411.3 km 2 (158.8 mi 2 , United Nations System-Wide Earthwatch 1998b,c), respectively, are threatened by deforestation. Timber is the Solomon Islands' most important export commodity. Unsustainable forestry practices, combined with clearing of land for agricultural and grazing purposes and over-exploitation of wood products for use as fuel, is resulting in the destruction of vast areas of forest throughout the Solomon Islands (CIA 2007b). All the lower slopes on Kolombangara Island have been logged except for one 500 m (1,640 feet) strip (United Nations System-Wide Earthwatch 1998b). In 2003, the World Resources Institute reported that none of the Solomon Island's total land area is protected to such an extent that it is preserved in its natural condition (Earth Trends 2003b). Because forests on the islands of Kolombangara and Rendova are the likely breeding habitat of the Heinroth's shearwater and these forests are being reduced through deforestation, we find that the destruction of the Heinroth's shearwater's breeding habitat on these two islands is likely to threaten the survival of the species. The Heinroth's shearwater's range at sea is poorly known; up to 20 birds have been reported in the Bismarck seas, ranging to the Madang Province on the north coast of Papua New Guinea (Bailey 1992, Clay 1994, Coates 1985, 1990, Hornbuckle 1999, as cited in BirdLife International 2000). Observations have also been reported in the seas around Bougainville Island, including a flock of 250 birds (Coates 1985, 1990, as cited in BirdLife International 2000). We are unaware of any present or threatened destruction, modification, or curtailment of this species' current sea habitat or range. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes We are unaware of any commercial, recreational, scientific, or educational purpose for which the Heinroth's shearwater is currently being utilized. C. Disease or Predation Although the Heinroth's shearwater's nest sites have not been located, all three islands where the species is most likely to breed have introduced rats, cats, and dogs (Buckingham, *et al.* 1995, as cited in BirdLife International 2000). All these introduced species contributed to drastic declines in the Galapagos petrel (see Galapagos petrel discussion of Factor C), and introduced cat and rats are known to have caused many local extirpations of other petrel species (Moors and Atkinson 1984, as cited in Priddel, *et al.* draft). Although the Heinroth's shearwater is believed to breed in high, inaccessible mountains, rats have been observed to at least 2,953 feet (900 m) on Kolombangara Island and are a threat to this burrow-nesting species (Buckingham, *et al.* 1995, as cited in BirdLife International 2000). Available information does not indicate that there have been attempts to eradicate introduced predators from these islands, which would be difficult due to the permanent habitation of humans on the islands. Even if the species were eradicated, there is still a high potential for cats and rats to be transported to the islands in boats transporting humans or other shipments. Because the threat of predation by introduced rats and feral cats and dogs has severely impacted closely related petrel species, and there are records of these introduced predators on the three islands where the Heinroth's shearwater is most likely to breed, we find that predation is a significant threat to this species. We are unaware of any threats due to predation on Heinroth's shearwaters during the non-breeding season while the species is at sea. Although several diseases have been documented in other species of petrels (see Chatham petrel Factor C), disease has not been documented in the Heinroth's shearwater. Therefore, the significance of this threat to the Heinroth's shearwater is unknown. D. The Inadequacy of Existing Regulatory Mechanisms No regulatory mechanisms are known that contribute to or reduce or remove threats to this species. E. Other Natural or Manmade Factors Affecting the Continued Existence of the Species The population of the Heinroth's shearwater is estimated at 250 to 999 individuals, which is considered to be very small (BirdLife International 2007f). Species with such small population sizes are at greater risk of extinction. Once a population is reduced below a certain number of individuals, it tends to rapidly decline towards extinction (Franklin 1980; Gilpin and Soule 1986; Soule 1987). The Heinroth's shearwater's small population size combined with its colonial nesting habits, as is typical of all Procellariid species, makes this species particularly vulnerable to the threat of adverse random, naturally occurring events (e.g., volcanic eruptions, cyclones, and earthquakes) that destroy breeding individuals and their breeding habitat. All three of the islands where the Heinroth's shearwater is most likely to breed are in a geologically active area resulting in a significant risk of catastrophic natural events. These islands are subject to frequent earthquakes, tremors, volcanic activity, typhoons, tsunamis, and mudslides (CIA 2007a,b). Of these three islands, the species' habitat on Bougainville is at most risk from volcanic activity. There are seven volcanoes on Bougainville that have been active in the last 10,000 years. Bagana is an active volcano that has had 22 eruptions since 1842, with most being explosive. Some of these explosive eruptions have produced extremely hot, gas-charged ash, which is expelled with explosive force, moving with hurricane speed down the mountainside. Bagana has been erupting since 1972, creating slow-moving lava flows (Bagana 2005). These volcanic explosions and lava flows have great potential to destroy Heinroth's shearwaters and their breeding habitat in the mountainous areas where they are most likely to breed. Landslides in mountainous area are associated with severe storms that are common in this geographic region (World Meteorological Organization 2004), and would be particularly threatening to breeding Heinroth's shearwaters and their breeding habitat during these extreme weather events. While species with more extensive breeding ranges or higher population numbers could recover from adverse random, naturally occurring events such as volcanoes or typhoons, the Heinroth's shearwater does not have such resiliency. Its very small population size and restricted breeding range puts the species at higher risk for experiencing the irreversible adverse effects of random, naturally occurring events. Therefore, we find that the combination of factors—the species' small population size, restricted breeding range, and likelihood of adverse random, naturally occurring events—to be a significant threat to the species. Although we are unaware of any documented cases of incidental take of Heinroth's shearwaters petrels by commercial long-line fishing operations or entanglement in marine debris, these long-line fishing operations have been identified as a threat to all seabird species (see analysis under Chatham petrel, Factor E). Moreover, the lack of data on these impacts to the Heinroth's shearwaters could be a result of the species' low population number. Therefore, we find the incidental take of Heinroth's shearwaters by commercial long-line fishing operations to be a significant threat to the species. Conclusion The best available information indicates that the Heinroth's shearwater is threatened by predation by introduced rats, and feral cats and dogs within the species' breeding range. The probability of these introduced predators preying on this species is high given that all these introduced species are on the islands where the species is likely to breed, and rats have been found in some of the high mountainous areas where the Heinroth's shearwater is most likely to nest. Furthermore, the devastating impact of predation by these introduced species has been documented in several closely-related species. Finally, there is no available information that indicates that efforts have been initiated to eradicate introduced predators from the three islands where the species is most likely to breed. This threat is magnified by the fact that this threat likely threatens the species throughout its breeding range. The Heinroth's shearwater is also threatened on Kolombangara and Rendova Islands, approximately half of its breeding range, by habitat destruction. The species' low population size of 250 to 999 individuals further increases this species' risk of extinction, and combined with its colonial nesting habits makes the species particularly vulnerable to the threat of catastrophic naturally occurring events (e.g., volcanoes) that are known to occur with frequency in the species' breeding range. The threats within the species' breeding range are compounded by the threat posed by long-line fishing in the species' non-breeding range. There is no available information to indicate that the governments of Papua New Guinea or Solomon Islands have implemented measures to protect the species from long-line fishery activities. Because the survival of this species is dependent on recruitment of chicks from its breeding range, the threats to this species within its breeding range put the species at risk. Despite the lack of population trend information, due to the species' small population size, the lack of conservation measures and regulatory protections for this species, and the identified threats that have caused declines in closely related species, we find that the threats within its breeding range make the Heinroth's shearwater likely to become in danger of extinction within the foreseeable future throughout all of its range. Because we find that the Heinroth's shearwater is likely to become in danger of extinction within the foreseeable future throughout all of its range, there is no reason to consider its status in a significant portion of its range. Available Conservation Measures Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments, private agencies and groups, and individuals. Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR part 402, requires Federal agencies to evaluate their actions within the United States or on the high seas with respect to any species that is proposed or listed as endangered or threatened, and with respect to its critical habitat, if any is being designated. However, given that the Chatham petrel, Fiji petrel, Galapagos petrel, magenta petrel, Cook's petrel, and Heinroth's shearwater are not native to the United States, no critical habitat is being proposed for designation with this rule. Section 8(a) of the Act authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered and threatened species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign endangered species and to provide assistance for such programs in the form of personnel and the training of personnel. The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. As such, these prohibitions would be applicable to the Chatham petrel, Cook's petrel, Fiji petrel, Galapagos petrel, magenta petrel and Heinroth's shearwater. These prohibitions, pursuant to 50 CFR 17.21 and 17.31, in part, make it illegal for any person subject to the jurisdiction of the United States to “take” (take includes: Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or to attempt any of these) within the United States or upon the high seas; import or export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered or threatened wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies. Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22, for endangered species, and 17.32 for threatened species. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. Public Comments Solicited The Service intends that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other government agencies, the scientific community, industry, or any other interested party concerning this proposed rule are hereby solicited. We are particularly seeking comments regarding biological information, population status, commercial trade, or other relevant data concerning any threat (or lack thereof) to these species. We also seek comments on the appropriate conservation status for the six bird species addressed in this proposed rule. You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not accept comments you send by e-mail or fax. We will also not accept anonymous comments; your comment must include your first and last name, city, State, country, and postal

(zip)code. Please note that we may not consider comments we receive after the date specified in the DATES section in our final determination. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that we will post your entire comment—including your personal identifying information—on *http://www.regulations.gov* . While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on *http://www.regulations.gov* , or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 110, Arlington, VA 22203, 703-358-1708. Final promulgation of the regulations concerning the listing of these species will take into consideration all comments and additional information that we receive, and such communications may lead to a final regulation that differs from this proposal. The Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days of the date of the publication of the proposal in the **Federal Register** . Such requests must be made in writing and be addressed to the Chief of the Division of Scientific Authority at the address given above. Peer Review In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” that was published on July 1, 1994 (59 FR 34270), we will seek the expert opinion of at least three appropriate independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analysis. We will send copies of this proposed rule to the peer reviewers immediately following publication in the **Federal Register** . Paperwork Reduction Act This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget

(OMB)under 44 U.S.C. 3501 et seq. The regulation will not impose new recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act We have determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. A notice outlining our reasons for this determination was published in the **Federal Register** on October 25, 1983 (48 FR 49244). Clarity of the Rule Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following:

(1)Are the requirements in the proposed rule clearly stated?

(2)Does the proposed rule contain technical language or jargon that interferes with its clarity?

(3)Does the format of the proposed rule (groupings and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?

(4)Would the rule be easier to understand if it were divided into more (but shorter) sections?

(5)Is the description of the proposed rule in the “Supplementary Information” section of the preamble helpful in understanding the proposed rule? What else could we do to make the proposed rule easier to understand? Send a copy of any comments that concern how we could make this rule easier to understand to the Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You also may e-mail comments to *Exsec@ios.doi.gov* . References Cited A list of the references used to develop this proposed rule is available upon request (see FOR FURTHER INFORMATION CONTACT ). Author The primary author of this proposed rule is Mary M. Cogliano, Ph.D., Division of Scientific Authority, U.S. Fish and Wildlife Service (see ADDRESSES section). List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. 2. Amend § 17.11(h) by adding new entries for “Petrel, Chatham,” “Petrel, Cook's,” “Petrel, Fiji,” “Petrel, Galapagos,” “Petrel, magenta,” and “Shearwater, Heinroth's” in alphabetical order under BIRDS to the List of Endangered and Threatened Wildlife as follows: § 17.11 Endangered and threatened wildlife.

(h)* * * Species Common name Scientific name Historic range Vertebrate population where endangered or threatened Status When listed Critical habitat Special rules * * * * * * * **Birds** * * * * * * * Petrel, Chatham *Pterodroma axillaris* Pacific Ocean—New Zealand (Chatham Island) Entire E NA NA Petrel, Cook's *Pterodroma cookii* Pacific Ocean—New Zealand (Little Barrier, Great Barrier, Codfish Islands) Entire T NA NA Petrel, Fiji *Pterodroma macgillivrayi* Pacific Ocean—Fiji (Gau Island) Entire E NA NA Petrel, Galapagos *Pterodroma phaeopygia* Pacific Ocean—Ecuador (Galapagos Islands) Entire T NA NA * * * * * * * Petrel, magenta *Pterodroma magentae* Pacific Ocean—New Zealand (Chatham Island) Entire E NA NA * * * * * * * Shearwater, Heinroth's *Puffinus heinrothi* Pacific Ocean—Papua New Guinea (Solomon Islands) Entire T NA NA * * * * * * * Dated: November 30, 2007. Kenneth Stansell, Acting Director, Fish and Wildlife Service. [FR Doc. E7-24347 Filed 12-14-07; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 071130780-7564-01] RIN 0648-AU32 Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Amendment 11 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS proposes regulations to implement measures in Amendment 11 to the Atlantic Sea Scallop Fishery Management Plan (FMP). Amendment 11 was developed by the New England Fishery Management Council (Council) to control the capacity of the open access general category fleet. Amendment 11 would establish a new management program for the general category fishery, including a limited access program with individual fishing quotas

(IFQs)for qualified general category vessels, a specific allocation for general category fisheries, and other measures to improve management of the general category scallop fishery. DATES: Public comments must be received no later than 5 p.m., eastern standard time, on January 31, 2008. ADDRESSES: A final supplemental environmental impact statement (FSEIS) was prepared for Amendment 11 that describes the proposed action and other considered alternatives and provides a thorough analysis of the impacts of the proposed measures and alternatives. Copies of Amendment 11, the FSEIS, and the Initial Regulatory Flexibility Analysis (IRFA), are available on request from Paul J. Howard, Executive Director, New England Fishery Management Council (Council), 50 Water Street, Newburyport, MA 01950. These documents are also available online at *http://www.nefmc.org* . You may submit comments, identified by 0648-AU32, by any one of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal *http://www.regulations.gov* • Fax:

(978)281-9135, Attn: Peter Christopher • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Scallop Amendment 11 Proposed Rule.” Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All personal identifying information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. Written comments regarding the burden-hour estimate or other aspects of the collection-of-information requirement contained in this proposed rule should be submitted to the Regional Administrator at the address above and by e-mail to *David_Rostker@omb.eop.gov* , or fax to 202-395-7285. FOR FURTHER INFORMATION CONTACT: Peter Christopher, Fishery Policy Analyst, phone 978-281-9288, fax 978-281-9135. SUPPLEMENTARY INFORMATION: Background The general category scallop fishery is currently an open access fishery that allows any vessel to fish for up to 400 lb (181.44 kg) of Atlantic sea scallops (scallops), provided the vessel has been issued a general category or limited access scallop permit. This open access fishery was established in 1994 by Amendment 4 to the FMP (Amendment 4) to allow vessels fishing in non-scallop fisheries to catch scallops as incidental catch, and to allow a small-scale scallop fishery to continue outside of the limited access and effort control programs aimed at the large-scale scallop fishery. Over time, the overall participation in the general category fishery has increased. In 1994, there were 1,992 general category permits issued. By 2005 that number had increased to 2,950. In 1994, there were 181 general category vessels that landed scallops, while in 2005 there were over 600. Out of concern about the level of fishing effort and harvest from the general category scallop fleet, the Council recommended that a **Federal Register** notice should be published to notify the public that the Council would consider limiting entry to the general category scallop fishery as of a specified control date. NMFS subsequently established the control date of November 1, 2004. In January 2006, the Council began the development of Amendment 11 to evaluate alternatives for a limited access program and other measures for general category vessels. The Council held 35 meetings open to the public on Amendment 11 between January 2006 and June 2007. After considering a wide range of issues, alternatives, and public input, the Council adopted a draft supplemental environmental impact statement (DSEIS) for Amendment 11 on April 11, 2007. Following the close of the public comment period on June 18, 2007, the Council adopted Amendment 11 on June 20, 2007. Amendment 11 would establish criteria and authority for determining the percentage of scallop catch allocated to the general category fleet and would establish the IFQ program. However, these specific allocation amounts have been being developed by the Council as part of Framework 19 to the FMP (Framework 19) which will establish scallop fishery management measures for the 2008 and 2009 fishing years. After proposing the allowable levels of fishing based on updated survey information and fishing mortality targets, the total allowable catches

(TACs)described below would be specified through a separate rulemaking for Framework 19. Framework 19 also would specify management measures for the 2008 and 2009 fishing years that would be recommended if Amendment 11 is not approved. A Notice of Availability

(NOA)for Amendment 11 was published on November 30, 2007. The comment period on the NOA ends on January 29, 2008. Proposed Measures The proposed regulations are based on the description of the measures in Amendment 11. NMFS has noted several instances where it has interpreted the language in Amendment 11 to account for any missing details in the Council's description of the proposed measures. NMFS seeks comments on all of the measures in Amendment 11, particularly the noted instances. Limited Access Program for the General Category Fishery Amendment 11 would require vessels to be issued a limited access general category

(LAGC)scallop permit in order to land scallops under general category rules. All general category permits would be limited access, requiring that a vessel owner submit an application demonstrating that the vessel is eligible for the permit. The current general category permits (1A- non VMS, and 1B- VMS permits) would be replaced with three types of LAGC scallop permits: IFQ LAGC scallop permit (IFQ scallop permit); Northern Gulf of Maine

(NGOM)LAGC scallop permit (NGOM scallop permit); and incidental catch LAGC scallop permit (Incidental scallop permit). A vessel would be eligible to be issued an IFQ scallop permit if the owner could document landings of at least 1,000 lb (454 kg) of scallop meats, as verified by NMFS records or documented through dealer receipts, in any fishing year between March 1, 2000, and November 1, 2004, and issuance of a general category scallop permit to the vessel during the fishing year in which the landings were made. The owner of a vessel who cannot qualify for an IFQ scallop permit, or who elects not to apply for an IFQ scallop permit, could instead be issued a NGOM scallop permit. The NGOM scallop permit would allow the vessel to fish in the NGOM exclusively, defined as the waters north of 42° 20′ N. Lat. A vessel would qualify for the NGOM scallop permit if it had been issued a valid general category scallop permit as of November 1, 2004. There would be no landings eligibility criteria. Vessels issued this permit would be subject to additional restrictions outlined in the description of the NGOM Scallop Management Area below. A vessel would qualify for an Incidental scallop permit if it had been issued a valid general category scallop permit as of November 1, 2004. There would be no landings eligibility criteria. This provision is intended to allow an incidental level of scallop catch for vessels that meet the permit eligibility, but not the landings criteria. This permit would allow such vessels to possess and land up to 40 lb (18.14 kg) of scallops per trip, and is intended to allow landing of incidental scallop catch. Some vessels that could qualify for an IFQ scallop permit may opt for the Incidental scallop permit because it permits vessels to land an incidental catch of scallops on an unlimited number of trips. In drafting the proposed rule, NMFS presumed that the limited access permit restrictions specified below apply to all three types of LAGC scallop permit, unless specifically excluded in Amendment 11. Initial Application for a LAGC Scallop Permit A vessel owner would be required to submit an initial application for a LAGC scallop permit or confirmation of permit history within 90 days of the effective date of the final regulations. The Council recommended the shorter than usual application period to expedite the transition to the IFQ program. The IFQ program cannot be implemented until all IFQ permits are issued because the number of vessels and the contribution factors for all qualified IFQ scallop vessels will be used to determine each vessel's IFQ share of the TAC allocated to IFQ scallop vessels (see “IFQs for Limited Access General Category Scallop Vessels” below). Limited Access Vessel Permit Provisions Amendment 11 would establish measures to govern future transactions related to limited access vessels, such as purchases, sales, or reconstruction. These measures would apply to all LAGC scallop vessels. Except as noted, the provisions proposed in this amendment are consistent with those that govern most of the other Northeast region limited access fisheries; there are some differences in the limited access program for American lobster. 1. Initial Eligibility Initial eligibility for an LAGC scallop permit would have to be established during the first year after the implementation of Amendment 11. A vessel owner would be required to submit an application for an LAGC scallop permit or CPH within 90 days of the effective date of the final regulations. 2. Landings History Amendment 11 specifies landings and permit history criteria that a vessel would have to meet to qualify for LAGC permits. It also specifies that an IFQ scallop vessel would be allocated IFQ based on its best year of scallop landings and the number of fishing years active during the qualification period of March 1, 2000, through November 1, 2004. Amendment 11 specifies that qualifying landings would have to be from the same scallop fishing year (March 1 through February 28/29) that a vessel was issued a general category scallop permit during the qualification period. Therefore, this proposed rule requires that, for any landings to be used in determining eligibility, best year of fishing, years active, and the resulting contribution factor, the vessel must have been issued a general category scallop permit in the fishing year the landings were made. The best year of scallop landings would be the scallop fishing year during the qualification period with the highest amount of scallop meats landed, provided the vessel was issued a general category scallop permit. Years active would be the number of scallop fishing years during the qualification period that the vessel landed at least 1lb (0.45 kg) of scallops provided the vessel was issued a general category scallop permit. In-shell scallop landings would be converted to meat-weight using the formula of 8.33 lb (3.78 kg) of scallop meats for each U.S. bushel of in-shell scallops, for qualification purposes. NMFS landings data from dealer reports would be used to determine a vessel's eligibility for an IFQ scallop permit, a qualified IFQ scallop vessel's best year of scallop landings, and years active in the general category scallop fishery. The NMFS permit database would be used to determine permit criteria eligibility for all LAGC scallop permits. Applicants would be allowed to dispute the denial of an LAGC permit, or contribution factor (based on best year and years active), through the eligibility appeals process described below. 3. Confirmation of Permit History

(CPH)A person who does not currently own a fishing vessel, but who has owned a qualifying vessel that has sunk, or been destroyed, or transferred to another person, would be required to apply for and receive a CPH if the fishing and permit history of such vessel has been retained lawfully by the applicant. Such an application would have to be made within 90 days of the effective date of the final regulations for Amendment 11. The CPH provides a benefit to a vessel owner by securing limited access eligibility through a registration system when the individual does not currently own a vessel. To be eligible to obtain a CPH, the applicant would have to show that the qualifying vessel meets the eligibility requirements for the applicable LAGC permit, and that all other permit restrictions described below are satisfied. Issuance of a valid CPH would preserve the eligibility of the applicant to apply for an LAGC permit for a replacement vessel based on the qualifying LAGC scallop vessel's fishing and permit history at a subsequent time. A CPH would have to be applied for in order for the applicant to preserve the LAGC scallop permit eligibility of the qualifying vessel. Vessel owners who were issued a CPH could obtain a vessel permit for a replacement vessel based upon the previous vessel's history that would utilize the CPH. IFQ associated with a CPH would count toward a vessel owner's overall ownership of IFQ, and would be restricted under the 5-percent ownership cap. 4. Permit Transfers An LAGC scallop permit and fishery history would be presumed to transfer with a vessel at the time it is bought, sold, or otherwise transferred from one owner to another, unless it is retained through a written agreement signed by both parties in the vessel sale or transfer. 5. Permit Splitting Amendment 11 adopts the permit splitting provision currently in effect for other limited access fisheries in the region. Therefore, an LAGC scallop permit may not be issued to a vessel if the vessel's permit or fishing history has been used to qualify another vessel for a limited access permit. This means all limited access permits, including LAGC scallop permits, must be transferred as a package when a vessel is replaced or sold. However, Amendment 11 explicitly states that the permit-splitting provision would not apply to the transfer/sale of general category scallop fishing history prior to the implementation of Amendment 11, if any limited access permits were issued to the subject vessel. Thus, vessel owners who sold vessels with limited access permits and retained the general category scallop fishing history with the intention of qualifying a different vessel for the LAGC scallop permit would be allowed to do so under Amendment 11. This differs from the current permit splitting provisions of other limited access fishery regulations, and specifically the Atlantic herring limited access permit splitting provision recently implemented under Amendment 1 to the Atlantic Herring FMP. A vessel with an existing limited access scallop permit (i.e., full-time, part-time, or occasional) that also qualifies for an LAGC scallop permit could not split the LAGC scallop permit from the existing limited access scallop permit. 6. Qualification Restriction Consistent with previous limited access programs, no more than one vessel would be able to qualify, at any one time, for a limited access permit or CPH based on that or another vessel's fishing and permit history, unless more than one owner has independently established fishing and permit history on the vessel during the qualification period and has either retained the fishing and permit history, as specified above, or owns the vessel at the time of initial application under Amendment 11. If more than one vessel owner claimed eligibility for a limited access permit or CPH, based on a vessel's single fishing and permit history, the NMFS Regional Administrator would determine who is entitled to qualify for the permit or CPH. 7. Appeal of Permit Denial Amendment 11 specifies an appeals process for applicants who have been denied an LAGC scallop permit. Such applicants would be able to appeal in writing to the Regional Administrator within 30 days of the denial, and any such appeal would have to be based on the grounds that the information used by the Regional Administrator was incorrect. The appeals process would allow an opportunity for a hearing before a hearing officer designated by the Regional Administrator. The owner of a vessel denied an LAGC scallop permit could fish for scallops under the applicable general category scallop regulations, provided that the denial has been appealed, the appeal is pending, and the vessel has on board a letter from the Regional Administrator authorizing the vessel to fish under the LAGC scallop permit category. The Regional Administrator would issue such a letter for the pendency of any appeal. If the appeal was ultimately denied, the Regional Administrator would send a notice of final denial to the vessel owner; and the authorizing letter would become invalid 5 days after receipt of the notice of denial, but no longer than 10 days after the date that the denial letter is sent. 8. Vessel Upgrades A vessel issued an LAGC scallop permit would not be limited by vessel size upgrade restrictions if the owner wished to modify or replace the vessel. However, if that vessel has also been issued limited access permits under § 648.4 that have upgrade restrictions (i.e., all other limited access permits issued in accordance with § 648.4), the upgrade restrictions for that fishery would apply to any modification or replacement, unless the permit with the restrictions were permanently relinquished as specified under “voluntary relinquishment of eligibility,” below. 9. Vessel Baselines A vessel's baseline refers to those specifications (length overall, gross registered tonnage net tonnage, and horsepower) from which any future vessel size change is measured. Because there are no vessel size upgrade restrictions, a vessel issued an LAGC scallop permit would not have baseline size and horsepower specifications. However, if that vessel has also been issued limited access permits under § 648.4 that have upgrade restrictions, any size change would be restricted by those baseline specification requirements, unless those permits were permanently relinquished as specified in “Voluntary relinquishment of eligibility” below. 10. Vessel Replacements The term vessel replacement (vessel replacement), in general, refers to replacing an existing limited access vessel with another vessel. This rule would require that the same entity must own both the LAGC scallop vessel (or fishing history) that is being replaced, and the replacement vessel. Unlimited upgrades of vessel size and horsepower through a vessel replacement would be allowed, unless the vessel to be replaced is restricted on upgrades because it has been issued other limited access permits pursuant to § 648.4. 11. Ownership Cap A vessel issued an IFQ scallop permit could not be allocated more than 2 percent of the TAC allocated to the fleet of vessels issued IFQ scallop permits. In addition, an individual could not have ownership interest in more than 5 percent of the TAC allocated to the fleet of vessels issued IFQ scallop permits. The only exceptions to these ownership cap provisions are if a vessel's initial contribution factor results in the ownership of more than 2 percent of the overall TAC initially upon initial application for the IFQ scallop permit, or if the vessel owner owns more than 5 percent of the overall TAC initially upon initial application for the IFQ scallop permits. This restriction would not apply to existing limited access scallop vessels that also have been issued an IFQ scallop permit since such vessels are already subject to the 5-percent ownership cap for limited access permits and because such vessels would not be permitted to transfer IFQ between vessels. 12. Voluntary Relinquishment of Eligibility A vessel owner could voluntarily exit the LAGC fishery by permanently relinquishing the permit. In some circumstances, it could allow vessel owners to choose between different permits with different restrictions without being bound by the more restrictive requirement (e.g., lobster permit holders may choose to relinquish their other Northeast Region limited access permits to avoid being subject to the reporting requirements associated with those other permits). If a vessel's LAGC scallop permit or CPH is voluntarily relinquished to the Regional Administrator, no LAGC scallop permit could ever be reissued or renewed based on that vessel's permit and fishing history. 13. Permit Renewals and CPH Issuance A vessel owner must maintain the limited access permit status for an eligible vessel by renewing the permits on an annual basis or applying for issuance of a CPH. All LAGC scallop permits must be issued on an annual basis by the last day of the fishing year for which the permit is required, unless a CPH has been issued. However, as a condition of the permit, the vessel may not fish for, catch, possess, or land, in or from Federal or state waters, any species of fish authorized by the permit, unless and until the permit has been issued or renewed in any fishing year, or the permit either has been voluntarily relinquished or otherwise forfeited, revoked, or transferred from the vessel. A complete application for such permits must be received no later than 30 days before the last day of each fishing year. A CPH does not need to be renewed annually. Once a CPH has been issued to an individual who has retained the LAGC scallop permit and fishing history of a vessel, it remains valid until it is replaced by a vessel permit through the vessel replacement process. A vessel's LAGC scallop permit history would be cancelled due to the failure to renew, in which case, no LAGC scallop permit could ever be reissued or renewed based on that vessel's permit and fishing history. Amendment 11 would implement a cost recovery program, with the payment procedures and details to be established in Framework 19. Under the IFQ program, vessels would be required to pay up to 3 percent of their revenue from scallop landings to offset the cost of managing, enforcing, and implementing the IFQ program, as required by the Magnuson-Stevens Act. Failure to pay cost recovery fees by the specified due date would result in NMFS action invalidating the IFQ scallop permit. If the invalidation of the IFQ scallop permit due to failure to pay for cost recovery fees is not resolved in the course of the applicable fishing year, no IFQ scallop permit could ever be reissued or renewed based on that vessel's permit and fishing history. Limited Access Scallop Vessels Fishing Under General Category Rules A vessel issued one of the existing limited access scallop permits (i.e., a full-time, part-time, or occasional scallop permit) may also be eligible to be issued a LAGC scallop permit if it meets the qualification criteria described above. Such a vessel would be allowed to fish under general category regulations when not fishing under the scallop DAS or Area Access programs. Existing limited access scallop vessels were not required to be issued a general category scallop permit. Therefore, to be issued an Incidental or NGOM scallop permit, the limited access vessel would have to have been issued a valid limited access scallop permit as of November 1, 2004. To be issued the IFQ scallop permit, an existing limited access scallop vessel would have to have been issued a valid limited access scallop permit during the period March 1, 2000, through November 1, 2004, and have documented landings of at least 1,000 lb (454 kg) of scallop meats when not fishing under the DAS or Area Access programs, as verified by NMFS records or documentation through dealer receipts. A limited access scallop vessel that does not qualify for a LAGC scallop permit could not fish for, possess, or retain scallops when not fishing under the scallop DAS and Area Access programs. Limited access scallop vessels that also qualify for an IFQ scallop permit would not be permitted to transfer IFQ. Therefore, the general category maximum allocation restriction or the maximum percentage ownership restriction for general category TAC would not apply. The limited access general category permit and IFQ scallop permit could not be split from the limited access scallop permit. Allocation of the Total Annual Projected Scallop Catch to the General Category Fishery under the IFQ Program Once the IFQ program is implemented, 5 percent of the total projected annual scallop catch would be allocated to vessels with IFQ scallop permits. This would be calculated by taking the total projected annual scallop catch, then deducting estimated catch by incidental catch general category vessels and the total allowable catch

(TAC)in the NGOM. Five percent of the resultant catch would then be allocated to the IFQ scallop fishery. IFQs for IFQ scallop vessels would be derived from the 5-percent TAC allocation. The 5-percent allocation would not apply to current limited access vessels that also have IFQ scallop permits. Limited access scallop vessels with IFQ scallop permits would be allocated 0.5 percent of the total projected annual scallop catch after deduction of incidental catch and the NGOM TAC. IFQs for these vessels would be derived from the 0.5-percent TAC allocation. The remaining 94.5 percent of the total projected annual scallop catch, after deduction of incidental catch and the NGOM TAC, would be allocated for harvest by the current limited access scallop fishery. IFQs for Limited Access General Category Scallop Vessels A vessel issued an IFQ scallop permit would be allocated a percentage of the TAC allocated to the IFQ scallop fishery based on the vessel's “contribution factor.” The contribution factor for each vessel would be determined by multiplying a vessel's best fishing year of landings during the March 1, 2000, through November 1, 2004, qualification period by an index factor based on the number of years the vessel was active in the scallop fishery during the qualification period. A vessel would be determined to be active in the scallop fishery if it landed at least 1 lb (0.45 kg) of scallops. The index factors for varying levels of participation during the qualification period are: 0.75 for 1year; 0.875 for 2 years; 1.0 for 3 years; 1.125 for 4 years; and 1.25 for 5 years. The index factor is intended to provide more weight in calculating the allocation for vessels that have been participating in the general category fishery for a longer period of time. A vessel's contribution percentage will be determined by dividing its contribution factor by the sum of the contribution factors of all vessels issued a limited access general category scallop permit. A vessel's IFQ would be determined by multiplying the TAC for IFQ scallop vessels by the vessel's contribution percentage. IFQ would be issued to owners of CPHs since that vessel's contibution would be included in the determination of IFQs as described below. IFQ associated with CPHs would be transferable. The following is an example of how a vessel's IFQ would be determined using hypothetical values: A vessel landed 48,550 lb (22,023 kg) of scallops in its best year, and was active in the general category scallop fishery for 5 years. The vessel's contribution factor would be equal to 48,550 lb (22,023 kg)*1.25 = 60,687 lb (27,527 kg). For this example, the highest total scallop landings is assumed to be 3.8 million lb (1,724 mt), and the number of qualifying vessels is assumed to be 380. The sum of the contribution factors for limited access general category scallop vessels is assumed to be 4.18 million lb (1,896 mt). The contribution percentage of the above vessel would therefore be 1.45 percent (60,687 lb (27,527 kg) / 4.18 million lb (1,896 mt) = 1.45 percent). The vessel's IFQ would be the vessel's contribution percentage (1.45 percent) multiplied by the TAC allocated to all IFQ scallop vessels. Assuming a TAC equal to 2.5 million lb (1,134 mt), the vessel's IFQ would be 36,250 lb (16,443 kg) (1.45 percent × 2.5 million lb (1,134 mt)). The IFQ program cannot be implemented until all IFQ scallop permits and CPHs have been issued because the calculation of the IFQ shares requires the contribution factors for all qualified IFQ scallop vessels to be totaled. However, eligibility, best year, and the contribution factor for each vessel would be determined upon initial application for a limited access general category scallop permit. This issue is discussed under the “Measures for the transition period to IFQ” description below. IFQ Transfers IFQ scallop vessel and CPH owners would be allowed to transfer IFQ on a temporary or permanent basis. A temporary IFQ transfer (or lease) would allow one IFQ scallop vessel to combine IFQs to increase fishing opportunity for a single fishing year. A permanent IFQ transfer would permanently move the IFQ from one vessel to another. Since a permanent IFQ transfer would require the vessel to transfer the IFQ scallop permit (and any other permits) to the transferee, the transferring vessel would not be eligible to enter into an agreement to transfer IFQ back to the vessel, unless the vessel replaced another IFQ scallop vessel. Each IFQ allocation would have to be transferred in full before it is utilized, and a vessel that used IFQ in a fishing year could not transfer its IFQ during that fishing year. An IFQ transfer would not be approved if it would result in the receiving IFQ scallop vessel having a share of more than 2 percent of the total TAC allocation to the IFQ fishery. IFQ transfers would not be permitted for existing limited access scallop vessels that also have been issued an IFQ scallop permit. IFQ Cost Recovery The Magnuson-Stevens Act requires any IFQ program to include a cost recovery program, whereby NMFS would collect up to 3 percent of ex-vessel value of landed product to cover actual costs directly related to enforcement and management of an IFQ program. The authority and procedures for collection of cost recovery fees would be established in this rule. Further details of the cost recovery program will be proposed in Framework 19, in which TACs would be established for LAGC scallop vessels. As recommended in Amendment 11, the IFQs would be rounded up to the nearest 10-lb unit. The cost recovery fee for an IFQ that was temporarily transferred to another IFQ scallop vessel would be the responsibility of the owner of the transferring IFQ scallop vessel, not the owner of the receiving IFQ scallop vessel. Measures for the Transition Period to IFQ Amendment 11 recognizes that it would take between 12 to 24 months to determine the universe of qualified vessels that would be issued an IFQ scallop permit. The time is necessary to accommodate applicants who pursue permits through the appeals process. As a result, it would not be possible to implement an IFQ program at the same time that NMFS is in the process of determining eligibility and contribution factors. Recognizing the problem, Amendment 11 specifies measures for a transition period. The transition measures include a quarterly TAC equal to 10 percent of the total projected scallop catch. Vessels that qualify for an IFQ scallop permit and vessels under appeal for an IFQ scallop permit would be authorized to fish for scallops, subject to the quarterly TAC, with all landings counted toward the TAC. When the TAC is projected to be attained, the general category fishery would close for the remainder of the quarter. Any underage or overage of the first quarter would be applied to the third quarter, and any underage or overage of the second quarter would be applied to the fourth quarter. The quarterly TACs for the 2008 fishing year, beginning March 1, 2008, will be specified in Framework 19. A quarterly TAC is proposed rather than an annual TAC due to concerns about derby fishing. This quarterly distribution of TAC is intended to reduce the negative effects of a race to take the TAC. The 10-percent allocation would result in a TAC that would be consistent with recent projections for scallop mortality from the general category fishery and would account for additional effort expected from vessels under the appeals process. Mechanism to Allow Voluntary Sectors in the General Category Fishery The proposed action includes a mechanism to allow the owners of IFQ scallop vessels to form voluntary sectors that would manage their own fishing activity as a group. This rule outlines the procedures that would be used to form a sector, and the sector program requirements. The sector provision includes: Restrictions on participation; definition and requirements for operations plans; specifications for the review, approval, and revocation process; allocation of TAC to sectors; sector share determination; restrictions on sector membership changes; restrictions on interaction between sectors; monitoring and enforcement provisions for sectors; a prohibition on trading of allocation between sectors; restrictions on vessel movement between sectors; a 20-percent maximum total allocation for a single sector. The 400-lb (181.44-kg) possession limit would be maintained for vessels in a sector. The formation of sectors is intended to provide greater flexibility for participants and create outcomes that are more socially and economically relevant for fishing groups within the biological limitations of the fishery (TACs). The 20-percent cap on a sector's share of the IFQ is intended to prevent one sector from controlling an excessive percentage of the general category allocation. Unlike the sector program for the Northeast multispecies fishery, Amendment 11 would not allow sectors to be exempt from any scallop regulations, except that participating vessels would not be restricted by their IFQs. NGOM Scallop Management Area The NGOM scallop management area would be waters north of 42°20′ N. Lat. The NGOM scallop management area would be managed separately, because the Council concluded that it has unique characteristics such as smaller vessels and sporadic fishable resource. The NGOM scallop management area would establish scallop fishing controls appropriate for the fishery while protecting the resource in the area from overharvest, if and when scallops are present in the area. Measures include the separate NGOM general category scallop permit and qualification criteria; a TAC based on historical landings from Federal waters in the NGOM; a possession limit of 200 lb (90.72 kg) of scallops per trip, with one trip per calendar day allowed; a provision that an IFQ vessel fishing in the NGOM scallop management area would have scallop landings deducted from its IFQ and the NGOM scallop management area TAC; and a prohibition on possession of scallops by any vessel, once the NGOM scallop management area TAC is harvested. Amendment 11 does not include specific restrictions for vessels fishing under scallop DAS in the NGOM, except that such vessels could not continue fishing in the NGOM once the TAC for the area has been reached. Monitoring All LAGC scallop vessels would be required to install and operate a VMS unit and would be required to declare a general category trip or other fishing activity code, as appropriate. In addition, IFQ and NGOM scallop vessels would be required report scallop landings through VMS. This provision would improve monitoring of an IFQ program by requiring vessels to report their catch, approximate time of landing, and port of landing before crossing the VMS demarcation line in order to enhance enforcement of the IFQ program and NGOM scallop fishery. The report submitted through VMS would include the VTR serial number, amount of scallops on-board, the port of landing, and the approximate time of arrival in port. This monitoring requirement would enable NMFS to monitor the TAC and IFQs on a more real-time basis. Change Issuance Date of General Category Permit The issuance date of general category permits would be changed from May 1 to March 1 of each year to be consistent with the scallop fishing year. Synchronizing the issuance of general category scallop permits with the scallop fishing year would make this permit consistent with the existing limited access scallop permit issuance date. Other Measures This action would clarify that vessels that are fishing under a Northeast multispecies or monkfish DAS would not be restricted to the 144-ft (43.9-m) net sweep restriction at § 648.52 that currently specifies that a vessel using a net with a sweep greater than 144 ft (43.9 m) cannot fish for, possess, retain, or land more than 40 lb (18.14 kg) of shucked or 5 bu (1.76 hL) of in-shell scallops. The Council recommended this change because the 144-ft (43.9-m) restriction was not intended to apply to vessels fishing for other species that would have an incidental catch of scallops, provided the vessel is issued the appropriate LAGC scallop permit. Amendment 11 proposes to allow an IFQ scallop vessel to possess up to 100 bu (35.24 hL) of in-shell scallops seaward of the VMS demarcation line only. Once shoreward of the VMS demarcation line, a vessel could possess only 50 bu (17.62 hL) of in-shell scallops. This measure is proposed because scallop vessel owners and operators testified that it often takes more than 50 bu (17.62 hL) of in-shell scallops to yield 400 lb (181.44 kg) of scallop meats. NMFS notes that similar increases were not specified by the Council for the NGOM possession limits of 200 lb (90.72 kg) of shucked or 25 bu (8.8 hL) in-shell scallops or the 40 lb (18.14 kg) of shucked or 5 bu (1.76 hL) of in-shell scallops. However, given the rationale for the increased possession limit, it would be inconsistent to apply the increased possession limit for only one LAGC scallop permit category or declared fishing activity. Therefore, this proposed rule specifies that vessels fishing for scallops up to 200 lb (90.72 kg) or 25 bu (8.80 hL), or up to 40 lb (18.14 kg) or 5 bu (1.76 hL), could possess up to 50 bu (17.62 hL) or 10 bu (3.52 hL), respectively, seaward of the VMS Demarcation Line. Finally, this proposed rule would clarify the ownership cap restriction on current limited access vessels specified at § 648.4(a)(2)(i)(M). The ownership cap restriction was implemented through Amendment 4 (59 FR 2757, January 19, 1994). Currently, the regulation states that an individual may not own, or have an ownership interest in, more than 5 percent of limited access scallop vessels. The provision in Amendment 4 is as follows: “No entity or individual may have ownership interest in more than 5 percent of the total number of scallop permits issued at implementation and through the appeal process.” However, the current regulations are not clear whether this cap applies to CPHs. Provisions for CPH were implemented in 1995 (60 FR 62224, December 5, 1995), after the 5-percent cap provision in Amendment 4 was implemented. The current regulation does not mention CPHs, which represent sunken or destroyed vessels, or vessels that were sold without fishing and permit history, that are eligible for limited access scallop permits. In terms of future ownership, a CPH is equivalent to a limited access permit. Since it is clear that the Council intended the ownership cap to restrict an owner to having an ownership interest in no more than 5 percent of all limited access scallop permits, this proposed rule would clarify that an individual cannot own more than 5 percent of the limited access permit eligibilities in the form of a limited access permit or CPH. This clarification would make the regulations consistent with the Council's original intent under Amendment 4. Public comments are solicited on Amendment 11 and its incorporated documents through the end of the comment period, January 29, 2008, stated in the NOA for Amendment 11 (72 FR 67691, November 30, 2007). Public comments on this proposed rule must be received by January 29, 2008, the end of the comment period specified in the NOA for Amendment 11, to be considered in the approval/disapproval decision on the amendment. All comments received by January 29, 2008, whether specifically directed to Amendment 11 or the proposed rule, will be considered in the approval/disapproval decision on Amendment 11. Comments received after that date will not be considered in the decision to approve or disapprove Amendment 11, but will be responded to in the final rule. Classification At this time, NMFS has not determined that the amendment this proposed rule would implement is consistent with the national standards of the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. The Council prepared an FSEIS for Amendment 11; an NOA was published on October 19, 2007. The FSEIS describes the impacts of the proposed Amendment 11 measures on the environment. Since most of the measures would determine whether or not fishers can continue fishing for scallops, and at what level in the future, the majority of the impacts are social and economic. Although the impacts may be negative in the short term, particularly at an individual fisher level, the long-term benefits of a sustainable scallop fishery would be positive. Elimination of the open access fishery is expected to have positive impacts on the biological and physical environment. This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). Public reporting burden for these collections of information are estimated to average as follows: 1. Initial application for an IFQ scallop permit - 30 min per response; 2. Initial application for an NGOM or Incidental scallop permit - 15 min per response; 3. Completion of ownership cap form for IFQ scallop vessel owners - 5 min per response; 4. Appeal for an LAGC scallop permit and IFQ scallop vessel contribution factor - 2 hr per response; 5. Application for a vessel replacement or confirmation of permit history - 3 hr per response; 6. Purchase and installation of a VMS unit for general category scallop vessels—2 hr per response; 7. IFQ scallop vessel VMS trip notification requirements—2 min per response; 8. NGOM scallop fishery VMS trip notification requirements—2 min per response; 9. Incidental catch vessel VMS trip notification requirements—2 min per response; 10. Pre-landings VMS notification requirements—5 min per response; 11. Application for an IFQ transfer—10 min per response; 12. Electronic payment of cost recovery payment—2 hr per response; 13. LAGC scallop fishery sector applications—150 hr per response; and 14. Sector operations plans—100 hr per response. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to the Regional Administrator as specified in ADDRESSES above, and by e-mail to *David_Rostker@omb.eop.gov* or fax to

(202)395-7285. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities, with data analyzed on a fishing year basis (March 1 through February 28/29). A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section of the preamble and in the SUMMARY . A summary of the IRFA follows: Description and Estimate of Number of Small Entities to Which the Rule Would Apply The vessels in the Atlantic sea scallop fishery are considered small business entities because all of them grossed less than $4.5 million according to the dealer's data for the 2004 and 2005 fishing years. Therefore, there are no differential impacts between large and small entities. According to this information, annual total revenue averaged about $940,065 per limited access vessel in 2004, and over $1 million per limited access vessel in 2005. Total revenues per vessel, including revenues from species other than scallops, exceeded these amounts, but were less than $4.5 million per vessel. Average scallop revenue per general category vessel was $35,090 in 2004 and $88,702 in 2005 fishing years. Average total revenue per general category vessel was higher, exceeding $240,000 in 2004 and 2005. According to the preliminary estimates, average revenues per vessel were lower in the first 11 months of 2006 for all permit categories, because of lower scallop landings and prices. The measures proposed in Amendment 11 would affect vessels with limited access scallop and general category permits. Section 4.4 (Fishery-related businesses and communities) of the Amendment 11 document provides extensive information on the number and size of vessels and small businesses that will be affected by the proposed regulations, by port and state. These affected entities are the owners of 318 vessels that were issued full-time permits in 2006, (including 55 small-dredge and 14 scallop trawl permits); 32 part-time; and 1 occasional limited access permit. In addition, 2,501 permits were issued to vessels in the open access General Category, and more than 500 of these vessels landed scallops during the last 2 years. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements This action contains several new collection-of-information, reporting, and recordkeeping requirements. The following describes these requirements. 1. Application Process NMFS estimates that there would be 500 applicants for an IFQ scallop permit, 200 applicants for a NGOM scallop permit, and 500 applicants for an Incidental scallop permit. Each IFQ scallop permit application would take approximately 30 min per application, while each NGOM and Incidental scallop permit application would take approximately 15 min to process. Consequently, the total time burden for the initial applications would be 425 hr. Amendment 11 estimates that 370 IFQ scallop permit, 190 NGOM scallop permit, and 465 Incidental scallop vessels are expected to qualify and consequently renew their application each year. Permit renewal is estimated to take 15 min per application, on average, for a total burden of 256 hr per year. The 3-year average total public time burden for IFQ, NGOM, and Incidental scallop permit initial applications, and permits renewals would be 312 hr. The labor cost, at an hourly rate of $15, would be $4,680. To implement the 5-percent IFQ ownership cap, vessel owners would be required to submit an ownership form with each permit renewal. Since there would be an estimated 370 IFQ permits, there would be 370 ownership forms each year. NMFS estimates that it would take 5 min to complete each ownership form; therefore, the annual reporting burden would be 31 hr, or 21 hr, averaged over the first 3 years. At an hourly rate of $15, the annualized time burden would be approximately $315. About 80 applicants are expected to appeal the denial of their permit application over the course of the 3-month application period. The appeals process is estimated to take 2 hr per appeal, on average, for a total burden of 160 hr. The burden of this one-time appeal, annualized over three years, would be 54 hr. At an hourly rate of $15, the time burden would be approximately $810. 2. Vessel Replacement, Upgrade, and Permit History Applications A standard form for vessel replacements, upgrades, and permit history applications (RUPH application) would be used for LAGC scallop permits, although vessel upgrades would not apply for LAGC scallop vessels unless the vessel is issued other limited access fishery permits that have upgrade restrictions. With the exception of upgrade restrictions, LAGC scallop vessels would be subject to similar replacement and permit history restrictions as other Northeast Region limited access fisheries. Completion of an RUPH application requires an estimated 3 hr per response. It is estimated that 100 RUPH applications would be received annually. The resultant burden would be up to 300 hr. At an hourly rate of $15 per hour, the total public cost burden for RUPH applications would be $4,500 per year. 3. New VMS Requirements This action would require vessels issued any of the LAGC scallop permits to install VMS. Most vessels that qualify for an IFQ scallop permit would have been participating in the directed general category scallop fishery, which already has VMS requirements prior to the implementation of Amendment 11. Therefore, it is likely that most vessels that will qualify for an IFQ permit already have VMS. Vessels that qualify for an Incidental or NGOM scallop permit would not likely be participating in the directed general category scallop fishery. However, vessels that qualify for an Incidental or NGOM scallop permit may already have VMS reporting requirements through other fisheries, particularly the Northeast multispecies fishery. It is possible that some new permit holders would decide to purchase and install new VMS units in order to participate in one of these fisheries. Therefore, NMFS estimates that up to 10 vessels would purchase and install VMS units as a result of Amendment 11. NMFS estimates that it would take 2 hr to purchase each unit, for a total time burden of 20 hr; annualized over 3 years, the burden would be about 7 hr per year. NMFS anticipates that a vessel owner would hire a VMS technician to install the VMS unit; therefore there would be no installation time burden for the vessel owner. At an hourly rate of $15 per hour, the total public cost burden for VMS purchases would be $105 per unit. Since position polling is automated, there is no associated time burden with this reporting requirement. 4. Trip Notification Requirements Each time a LAGC scallop vessel leaves port or is moved from the dock or mooring, the operator must submit a VMS trip declaration code to notify NMFS of the vessel's fishing activity. According to 2007 VMS trip declaration data for 1B scallop vessels, approximately 40 percent of the time general category 1B vessels declare a general category scallop trip; the remainder are codes for other activities (if a vessel leaves port, general category regulations require it to declare a trip, regardless of the fishing activity). The 2008 scallop harvest specifications have not yet been finalized, but the proposed IFQ quota is 2.5 million lb (1,134 mt). Assuming each trip harvests the 400-lb (181.4-kg) possession limit, there would be an estimated 6,250 IFQ trip declarations per year, with an additional 9,375 trip declarations for some activity other than scallop fishing, for a total of 15,625 trip declarations. Following each trip, NMFS assumes that the vessel operator would submit a power-down code to reduce polling costs and conserve battery power. NMFS estimates that it takes approximately 2 min to submit a trip declaration or power-down code. NMFS estimates that the IFQ fleet would submit 31,250 VMS declaration codes (15,625 trip declarations and 15,625 corresponding power-down code submissions); therefore, the annual IFQ trip declaration time burden would be 1,042 hr per year. At an hourly rate of $15, this burden would be $15,630. 5. NGOM Notification Requirements The proposed NGOM TAC is expected to be 64,000 to 100,030 lb (29,030 to 45,373 kg) each year. Assuming each trip lands the 200-lb (90.72-kg) possession limit, and using the upper limit of the proposed TAC, it is projected that there would be up to 500 NGOM trip declarations per year. For economic purposes it is unlikely that a vessel owner would incur the cost of a VMS unit solely to have a NGOM permit. Therefore, assuming these vessels already have VMS reporting requirements for other fisheries, VMS declaration reporting requirements for activities other than NGOM activity have already been accounted for in other PRA collections. The increased reporting burden resulting from the NGOM permit category would be approximately 500 trip declarations and 500 power-down declarations. Assuming each declaration takes approximately 2 min, the annual NGOM trip declaration time burden would be approximately 34 hr. At an hourly rate of $15, this burden would be $510. 6. Incidental Scallop Vessel VMS Notification Requirements In 2004 and 2005, dealer data indicated that the percent of scallops landed in quantities of 40 lb (18.14 kg) or less was 0.02% and 0.06%, respectively, of the total scallop landings. The average scallop landings on these trips in 2004 and 2005 was 19,363 lb (8,783 kg). Using this average, NMFS estimates that there were approximately 500 general category trips that landed scallops incidental to other fishing. Assuming this rate would remain approximately the same, there would be an estimated 500 Incidental trip declarations made annually. As previously noted, for economic purposes it is unlikely that a vessel owner would incur the cost of a VMS unit solely to have an Incidental scallop permit. Therefore, assuming these vessels already have VMS reporting requirements for other fisheries, VMS declaration reporting requirements for activities other than Incidental scallop permit activity have already been accounted for in other PRA collections. The increased reporting burden resulting from the Incidental scallop permit category would be approximately 500 trip declarations and 500 power-down declarations. Assuming each trip declaration takes approximately 2 min, the annual Incidental scallop trip declaration time burden would be approximately 34 hr. At an hourly rate of $15, this burden would be $510. 7. Pre-landing Notification Requirements VMS pre-landing notification forms would be required for each IFQ and NGOM scallop trip. Therefore, there would be 6,250 IFQ and 500 NGOM scallop vessel pre-landing notification forms submitted annually. NMFS estimates that it would take 5 min for each of the 6,750 reports, for an annual pre-landing notification time burden of 563 hr. At an hourly rate of $15, this burden would be $8,445. 8. State Waters Exemption Program Requirements The state waters exemption program enrollment form is estimated to take 5 min to submit through the VMS, the same amount of time as it has taken to enroll through interactive voice response system currently used. State waters exemption program trip declaration requirements are already accounted for in an approved collection under OMB Control No. 0648-0202. Therefore, this burden would not increase the cost to vessel owners declaring into the state waters exemption program. 9. IFQ Transfers IFQ transfers would apply to IFQ scallop vessels, except that current limited access scallop vessels that also have been issued an IFQ scallop permit would not be permitted to transfer IFQ. Using the Northeast Region's Northeast Multispecies DAS leasing program (OMB Control No. 0648-0475) as a proxy for the response rate for the IFQ transfer program, NMFS anticipates that there would be approximately 75 temporary transfers annually. Each application would include information from both parties involved in the temporary transfer; therefore there would be two responses per application. NMFS estimates that it would take 5 min per response, or 10 min per temporary IFQ transfer application. Therefore, the estimated burden would be 13 hr. At an hourly rate of $15 / hour, the total public cost burden for temporary IFQ transfer applications would be $195. The Northeast Multispecies DAS Permanent Transfer Program cannot be easily correlated with the general category permanent transfer program because the Northeast Multispecies Program has a 20-percent conservation tax on all transfers, while there would be no conservation tax on scallop IFQ transfers. Although NMFS anticipates that there would be more IFQ transfers than DAS transfers, IFQ transfers would be restricted by the requirement that no IFQ vessel owner could have an ownership interest in more than 5 percent of the total TAC for IFQ scallop vessels, and no vessel could have more than 2 percent of the total TAC for IFQ scallop vessels at any time. NMFS anticipates that there would be approximately 10 permanent IFQ transfers per year. Each application would include information from both parties involved in the transfer; therefore there would be two responses per application. It is estimated that it would take 5 min per response, or 10 min per permanent transfer application. Therefore, the estimated permanent IFQ transfer burden would be 2 hr. At an hourly rate of $15 per hour, the total public cost burden for permanent quota transfer applications would be $30. 10. Cost Recovery Since cost recovery for the scallop IFQ program is new, and there are no other current cost recovery programs in Northeast Region fisheries, the burden per response used by the Alaska Region's Alaska Individual Fishing Quota Cost-Recovery Program Requirements (OMB Control No. 0648-0398) was used as a proxy for the scallop IFQ program. Each IFQ permit holder would be required to submit a cost recovery payment once annually, which would take 2 hr per response. Therefore, 370 payments would take 740 hr. At an hourly rate of $15 / hour, the total public cost burden for cost recovery would be $11,100. 11. LAGC Sector Program NMFS estimates that there could be up to nine sector proposals received over the next three years (2008-2009); five in the first year, two in the 2nd year, and two in the 3rd year. The earliest that the sectors proposed in the 2008 year could be implemented would be the 2009 fishing year. Therefore, these sectors would be required to submit operation plans for the 2010 fishing year. Any person could submit a sector allocation proposal for a group of LAGC scallop vessels to the Council at least 1 year in advance of anticipated start of a sector program, and request that the sector be implemented through a framework procedure specified at § 648.55. Based upon consultations with the Northeast multispecies sector program, it is estimated it would take 150 hr to prepare and submit a sector proposal. Therefore, the 3-year average annualized time burden for sector proposals would be 450 hr per year. At an hourly rate of $15 per hour, the total public cost burden for sector proposals would be $6,750. A sector is required to resubmit its operations plan to the Regional Administrator no later than December 1 of each year, whether or not the plan has changed. Based upon consultations with the Northeast multispecies sector program, each operations plan takes approximately 100 hr. The earliest sector operation plans would be submitted in 2010 for the proposals submitted in 2008. Therefore, NMFS estimates it would take 500 hr to submit 5 operation plans. The 3-year average annualized time burden would be 167 hr per year. At an hourly rate of $15 per hour, the annual time burden cost would be approximately $2,500. Economic Impacts of the Proposed Action Compared to Significant Non-Selected Alternatives 1. Summary of the Combined Economic Impacts of the Limited Access Measures In summary, the proposed limited access program could have negative economic impacts in the short-term on the estimated 373 vessels that would not qualify for a LAGC scallop permit, with adverse impacts compared to 2005 scallop revenue estimated to be less than 5 percent for 119 vessels, 5 to 49 percent for 58 vessels, and 50 percent or more for 196 vessels. The measures would also have negative impacts on about 153 out of 369 vessels that are estimated to qualify for the IFQ scallop permit, with adverse impacts compared to 2005 scallop revenue estimated to be less than 5 percent for 26 of these vessels, 5 to 50 percent for 70 vessels, and over 50 percent for 57 vessels. Altogether, the proposed measures could reduce total revenues of 381 vessels of more than 5 percent in the short-term. There are several measures in the proposed action, however, to help mitigate and reduce the potential negative impacts on these vessels, as discussed above. Qualifying vessels would be permitted to stack allocation up to 2 percent of the entire general category allocation and to transfer (i.e., lease or buy) IFQ on a permanent or temporary basis. This would enable vessel owners who do not receive an adequate amount of allocation to increase their scallop revenue to mitigate negative impacts. Furthermore, there is a provision to allow the formation of voluntary sectors. It may be beneficial for a group of vessels from a fishing community, for example, to organize and apply for a sector in the general category fishery. Negative impacts on some vessel owners may be mitigated if a vessel would qualify for a NGOM scallop permit that authorizes it to fish for scallops at a reduced level. In addition, many of the vessels that would not qualify for the IFQ scallop permit would qualify for an Incidental scallop permit that would authorize the vessel to land up to 40 lb (18.14 kg) of scallops per trip. Continuation of the open access fishery under the no action alternative would not guarantee that the affected vessel owners would get more scallop revenue than they could with the proposed limited access program. With continued open access, there would always be the risk of more vessels entering the fishery, with the potential for overfishing of the scallop resource. Overfishing would likely cause a reduction in landings per unit effort, an increase in fishing costs per pound of scallops, and dissipation of the profits for all limited access and general category vessels. There were also possible future negative effects on the existing limited access scallop vessels with the continuation of the open access program because the need to prevent an increase in overall fishing mortality would at some point reduce the DAS allocations for the limited access fleet to compensate for projected general category catcth. Assuming a scallop harvest of 50 million lb (22,680 mt), an increase in the share of general category landings to 20 percent of the total scallop landings would result in a decline of 17 percent to 21 percent of the net vessel share (as a proxy for profits) for the limited access vessels. Given that, in 2005, the general category landings increased to 14 percent of the total landings from about 5 percent in 2004, a further increase in general category effort could occur without a limited access program. Section 5.4.17.1 and Table 166 of the Amendment 11 document provide details about these impacts. Because it would prevent further expansion of the general category fishery, the economic impacts of the proposed measures on the 351 existing limited access vessels would be positive both in the short and the long term. Reducing the general category catch from recent levels could increase the total DAS allocations for those vessels, resulting in approximately a 7-percent increase in their revenues compared to the status quo levels. Similarly, the general category limited access program would benefit the current limited access vessels that qualify for an IFQ permit, although the proposed 0.5-percent allocation of the total scallop TAC could lower their landings compared to recent levels (1.5 percent and 0.75 percent of overall scallop landings in 2005 and 2006, respectively). The overall economic impacts of the limited entry in the medium to long term are expected to be positive for the sea scallop fishery as a whole, compared to taking no action. The proposed action would restrict the estimated number of participants in the general category fishery to 369 vessels that meet the IFQ permit qualification criteria. The allocation of a 5-percent TAC for the general category would cap the fishing mortality from this component of the fleet. The limited access program would also prevent the profits of the qualifiers and limited access vessels from dissipating due to an increase in fleet capacity that would likely occur with continued open access. 2. Summary of the Economic Impacts of the Individual Measures Two alternatives to the proposed landings qualification criteria were considered: Cumulative annual landings of 100 lb (45.4 kg); and 5,000 lb (2,268 kg). The 100-lb (45.4-kg) landing qualification criteria is estimated to qualify more vessels

(548)for limited access and have a lower negative impact on the recent participants than the proposed alternative. On the other hand, by increasing the number of participants, this alternative would result in a lower share of general category TAC for each qualifier and would thus have a negative impact on individual vessels, especially on vessel onwers that have a high dependence on scallop revenue as a source of income. For example, the average allocation per vessel would decline from 5,429 lb (2,462 kg) to 3,650 lb (1,656 kg) per vessel if the poundage criterion was set at 100 lb (45.4 kg) instead of at 1,000 lb (454 kg) for a general category TAC of 2 million lb (907 mt). The alternative 5,000-lb (2,268-kg) landings qualification criterion is estimated to qualify only 188 vessels for limited access and, thus, would increase the share of each qualifier in general category TAC. As a result, average allocation per vessel would increase to 10,638 lb (4,825 kg) with a 2-million-lb (907-mt) general category TAC. Although this alternative would have positive economic impacts on the vessels that had a much higher historical dependence on scallops as a source of their income, it would deny eligibility to a much larger number of vessels that historically derived some revenue from scallop fishery. The proposed 1,000-lb (454-kg) alternative would deny eligibility to a large number of boats that have small landings of scallops (i.e., that landed between 100 and 999 lb (45.4 kg to 453 kg)), while qualifying vessels that depend on scallops to a larger degree. Qualification Time Period Eligibility for limited access would require a vessel to have made the required amount of landings in any scallop fishing year during a specified time period. In addition to the proposed March 1, 2000, through November 1, 2004, qualification period, the Council considered two alternative qualification periods: March 1, 1994, through November 1, 2004; and March 1, 2003, through November 1, 2004. The economic impacts of qualification period, combined with the landing criteria, are analyzed in several sub-sections of Section 5.4 of the Amendment 11 document and summarized here. The impacts on the general category permit holders and vessels that qualify for limited access are analyzed in Section 5.4.3 of the Amendment 11 document. The impacts on revenues, fishing costs, average net revenues, crew and vessel shares are analyzed in Section 5.4.5 of the Amendment 11 document, for various levels of general category TAC. The impacts of the proposed 5-yr qualification period and other alternatives on recent participants in the general category fishery are analyzed in Section 5.4.6 of the Amendment 11 document. The proposed 5-yr qualification period, combined with the 1,000-lb (454-kg) landings criteria, is expected to have positive economic impacts in the short and long term on vessel owners with vessels that qualify for limited access. It would provide access to those general category vessels that were active in the fishery in recent years, as well as to historical participants that were active from March 1, 2000, through November 1, 2004. The proposed 1000-lb (454-kg) poundage criteria and the 5-yr qualification period would qualify 369 vessels, but would deny eligibility to 90 vessels that meet the 1,000-lb (454-kg) criteria for their activity during 1994-1999 fishing years. The economic impacts on these historic participants would be negative in terms of a loss in future potential revenue from scallops, unless they buy a vessel that qualifies for limited access. The proposed 5-yr qualification period would not have any impact on the current income of most of these vessels, given that most have not been active since 2000; only 10 vessels are estimated to have participated in the fishery after the control date (November 1, 2004). The longer qualification period would cause the general category TAC to be divided among a larger number of vessels, most of which were not recently active in the fishery, and vessels that depend on scallops would receive a smaller share than they would with the proposed 5-yr qualification period. This would have negative economic impacts on the vessels that depend on scallops to a larger degree. There are also some measures included in the proposed action that could mitigate some of these adverse economic impacts on non-qualifiers. If these vessels had a permit before the control date, they could obtain an incidental catch permit and land up to 40 lb (18.14 kg) per trip, thus still earn some revenue from scallops. Other vessel owners could chose to obtain an NGOM scallop permit and participate in the NGOM fishery, subject to a possession limit of 200 lb (90.72 kg) per trip and a hard TAC. The 2-yr qualification period alternative would have restricted eligibility to 277 general category vessels that landed 1,000 lb (454 kg) or more of scallops during the period March 1, 2003, through November 1, 2004, instead of 369 vessels under the proposed action. Although this alternative would result in a larger share per vessel qualified for limited access, it was found to be inequitable to participants who did not fish for scallops in 2003-2004, but did fish in recent years since 2000. IFQ Vessel Contribution Factor Under the proposed action, each IFQs vessel's contribution factor would be determined by identifying the year with the highest landings during the qualification time period, and multiplying it by an index that increases as the number of years in which the vessel landed scallops during the qualification time period increases. For example, the index is 0.75 if the vessel landed scallops in 1year, and 1.25 if the vessel landed scallops in 5 years. Therefore, the proposed action would allocate more pounds to those vessels that were active in the fishery for a longer period of time. In addition to the proposed measure, the Council considered three alternatives to calculate the contribution factor. One alternative used the vessel's best year of landings during the qualification time period. Another alternative used the vessel's best year multiplied by a lower range of index factor than the proposed action. The third alternative used either the best year of landings during the qualification time period, or the indexed best year of landings during the qualification time period, but capped the contribution at 50,000 lb (22,680 kg) of scallops. The economic impacts of the contribution factor alternatives are analyzed in Section 5.4.7.1 through 5.4.7.2 of the Amendment 11 document. The alternatives to the proposed option would have distributional economic impacts less favorable to the vessels that were active in the fishery for many years. The alternative that used a lower range of index values (0.9 to 1.10, rather than 0.75 to 1.25) would provide only a slight increase in IFQ share for vessels that were active in the fishery for a long period of time, while only slightly decreasing share for vessels that were in the general category scallop fishery for only 1 year. This would have had more negative impacts on a larger number of vessels that had a longer history in the general category scallop fishery. The alternative allocation based on best year (Section 3.1.2.3.1 of the Amendment 11 document) would have had negative economic impacts on those vessels that had a longer history of participation, since allocation would be determined regardless of years active. For the same reason, this alternative would have had positive economic impacts on those vessels that had a shorter history of participation. The final alternative, which would establish the 50,000-lb (22,680-kg) cap on a vessel's contribution factor, would prevent a vessel from getting a larger share of the fishery even if it had very high historical landings. This alternative would have impacted vessels with higher landings more severely than vessels with lower landings, and was therefore not selected. The proposed alternative using the best-year indexed by the number of years active is intended to help reduce the negative impacts on those participants with an established history and long-term investment in scallop fishing. Scallop Allocation for LACG Scallop Vessels The Council considered several ways of allocating IFQ to vessels that qualify for a LAGC scallop permit (excluding NGOM and Incidental scallop vessels). These included: Allocations by vessel in pounds of scallops or number of trips per vessel; allocations to two allocation tiers where every vessel in a tier would receive the same allocation; allocation to three allocation tiers; a fleetwide hard TAC; and a fleetwide hard TAC allocated into either quarters or trimesters. The Council also considered a stand-alone IFQ alternative that would confer eligibility on IFQ vessels based only on past permit issuance, and would use the contribution factor alternative adopted by the Council to allocate a vessel's IFQ. The economic impacts of the allocation alternatives are analyzed in section 5.4.8 of the Amendment 11 document. Under the proposed action, NMFS would calculate a vessel's IFQ by multiplying the overall general category TAC by the vessel's contribution factor. An example demonstrating the calculation of a vessel's IFQ is provided in the “IFQs for limited access general category scallop vessels” section of the preamble of this proposed rule. The allocation of IFQ would eliminate the derby fishing effect that results from a TAC because an IFQ assures that each vessel can land a given quantity anytime during the fishing year. Vessel owners would have the flexibility to select the time and the area to fish in order to minimize their costs and/or maximize their revenues. Since the fishing effort would be spread over a longer period of time, the price of scallops would be more stable throughout the season. This, combined with the availability of a fresh and/or higher quality scallops over a longer season, would benefit consumers as well as producers. Therefore, the proposed allocation alternative would have positive economic impacts on the vessels that qualify for limited access general category fishery. Although maintaining the 400-lb (181.44-kg) possession limit would cause some inefficiencies and result in higher costs compared to a higher possession limit (alternative 2,000 lb (907 kg) per trip), this provision is intended to help preserve the historical small-boat character of this fleet. The non-selected alternative that would have allocated a number of trips to each scallop vessel has an advantage over the IFQ alternative because it is easier to monitor and enforce, but could result in either reduced revenue or increased costs for vessels that catch less than 400 lb (181.44 kg) of scallops on any trip, because the trip would have been considered to be used irrespective of amount landed. Another non-selected alternative would have established two permit tiers to which vessels would be assigned based on the level of historical scallop landings. Vessels that had historical landings of less than 5,000 lb (2,268 kg) would have a possession limit of 200 lb (90.72 kg), while vessels that had historical landings greater than 5,000 lb (2,268 kg) would have a scallop possession limit of 400 lb (181.44 kg) per trip. The alternative did not restrict the number of trips that could be taken or pounds that could be landed by vessels within a tier. This alternative would have negative economic impacts on vessels that landed less than 5,000 lb (2,268 kg) and would be restricted to a 200-lb (90.72-kg) possession limit because it would reduce landings from recent historical levels. The three-tiered allocation alternative would allocate equal pounds or trips to each vessel within one of three tiers based on the vessel's historical level of landings, with the pounds or trips allocated to each tier based on the average amount of scallops landed by vessels in each tier. As a result, this alternative would have negative impacts on a vessel in a tier that landed a higher amount of scallops than the average for the tier. The stand-alone alternative would allocate IFQ to a larger number of vessels, but would have negative distributional impacts on vessels that have had higher recent annual landings of scallops. Instead of individual allocation, the alternative that would establish a hard TAC with limited entry vessel permits could lead to a race to fish and market gluts. This could have negative economic impacts, especially on smaller vessels that fish seasonally and cannot access all areas due to the constraints on their capacity. A fleet-wide hard TAC allocated by trimester or by quarter would extend the fishing season and reduce negative impacts from derby fishing and market gluts, to some extent. These alternatives would have larger negative distributional impacts on some vessels compared to the proposed IFQ program, and other vessel allocation alternatives considered, because the opportunity to fish and land scallops would be dependent upon the level of fishing by other vessels. For example, a vessel may not get the opportunity to fish for scallops at all under a quarterly fleetwide TAC alternative if other general category vessels quickly harvest the entire TAC. If such a vessel had landings of scallops before Amendment 11, the vessel would experience scallop revenue losses compared to alternatives that would allow the vessel to fish for scallops regardless of the scallop fishing activity of other vessels. Limited Entry Permit Provisions Amendment 11 includes most of the provisions adopted in other limited access fisheries in the Northeast Region to govern the initial qualification process, future ownership changes, and vessel replacements. For the most part, there is no direct economic impact. The nature of a limited access program requires rules for governing the transfer of limited access fishing permits. The procedures have been relatively standard for previous limited access programs, which makes it easier for a vessel owner issued permits for several limited access fisheries to undertake vessel transactions. The standard provisions adopted in Amendment 11 are those governing change in ownership; replacement vessels; CPH; abandonment or voluntary relinquishment of permits; and appeal of denial of permits. In addition, IFQ scallop vessels would be restricted to a cap on the amount of IFQ they could own. This ownership cap restriction is based on a similar ownership cap provision for current limited access vessels. This action would modify some of the other provisions for LAGC scallop vessels. LAGC scallop vessels would not have any vessel size and horsepower upgrade restrictions for vessel modifications or vessel replacements (unless the vessel has other limited access permits). This action would also allow a vessel owner to retain a general category scallop fishing history prior to the implementation of Amendment 11 to be eligible for issuance of the LAGC scallop permit based on the eligibility of the vessel that was sold, even if the vessel was sold with other limited access permits. The economic impacts of the limited access permit provisions are analyzed in section 5.4.9 of the Amendment 11 document. Measures allowing vessel owners to appeal limited access permit denials would indirectly benefit all participants by ensuring that only those vessels that provide verification of permit and landings history would qualify and receive allocation based on accurate records. The proposed regulations regarding qualification with retained vessel histories would have positive economic impacts for participants that sold their vessel to another but retained the fishing history. The proposed action would allow a vessel owner to modify a LAGC scallop vessel's size or horsepower without any upgrade restriction, provided that there are no other limited access permits issued to the vessel. This would provide flexibility for the vessel owners to adjust their fishing power under changing fishery conditions. Flexibility with a vessel's size and horsepower could also improve safety at sea. Since the vessels would be allocated individual pounds, this is not expected to impact the total scallop landings or provide an unfair advantage to larger vessels. Amendment 11 would allow a vessel owner to obtain permanent or temporary transfers of IFQ, up to 2 percent of the total general category allocation per vessel. This would help vessel owners to maintain an economically viable operation if the allocations for separate vessels are too low to generate revenue to cover variable and fixed expenses. It could also allow a vessel owner to sell or lease a small IFQ to another vessel owner, which would generate income from the IFQ without operating costs. This measure, combined with a restriction that an individual could not have an ownership interest in more than 5 percent of the overall TAC, would also prevent a few individuals or corporations from dominating the fishery and would help to redistribute gains from the limited access more equitably among more fishermen. Non-preferred alternatives considered other ways to limit the accumulation of IFQ. One would have allowed two allocations only to be combined, and the other set a cap of 60,000 lb (27,216 kg) total allocation. The selected alternative provided more flexibility while maintaining an overall limit on the amount of IFQ that could be held by a single vessel. Non-preferred alternatives would have prohibited IFQ transfers, would have maintained vessel size and horsepower upgrade restrictions consistent with other limited access permits (allowed upgrades up to 10 percent in length, and gross and net tonnage, and 20 percent in horsepower), and would have prohibited IFQ transfers, providing less flexibility for vessel owners and reduced economic benefits. Sectors Amendment 11 proposes to allow participants in the IFQ scallop fishery to organize voluntary fishing sectors. Amendment 11 specifies sector requirements and the process through which proposals would be submitted to the Council and NMFS. Amendment 11 does not establish sectors—just the process under which future sectors could be proposed. The proposed sector process would provide an opportunity for fishermen to benefit from an economically viable operation when the allocations of individual vessels are too small to make scallop fishing profitable. In comparison, the only alternative to the proposed action would not allow the formation of sectors, decreasing flexibility and eliminating any possible future economic benefits of forming sectors. Measures for Transition to the IFQ program Amendment 11 specifies measures that would be implemented for at least 1 year, while the eligibility process for IFQ scallop permits is underway to establish the fleet of IFQ scallop vessels. The economic impacts of the transition period alternatives are analyzed in section 5.4.12 of the Amendment 11 document. The proposed interim alternative would establish the following measures. These would help to prevent a short-term increase in overfishing of the scallop resource by limiting the general category landings to 10 percent of the total scallop landings through specification of a TAC. The proposed action would prevent further expansion in the general category catch and benefit the participants of the general category fishery by providing some adjustment time for general category vessels until the transition period is over. The allocation amounts for many IFQ scallop vessels are likely to be lower with the proposed 5-percent TAC for the IFQ fishery than their recent landings. Although management of the general category fishery by a fleetwide TAC during the transition period would create some derby fishing, the allocation of the total TAC into quarters would reduce derby effects to some extent, and lessen the negative economic impacts associated with derby fishing. A 10-percent fleetwide TAC may not constitute a significant constraint on recent landings, given that only those vessels that qualify for an IFQ permit, or that are under appeal for an IFQ permit, would be authorized to fish during the transition period. General category scallop landings by those vessels that had a permit before the control date were approximately 11 percent of total landings in 2005. An alternative was considered that would have established an annual fleetwide TAC. It was not selected because the Council believed it would increase the derby effect, with potential negative economic and safety implications. It would increase the likelihood that a vessel would not have the opportunity to fish for scallops because other vessels could rapidly harvest the TAC. Another alternative proposed that the transition year would have no TAC. It would eliminate the incentives for derby style fishing and the economic impacts of this alternative compared to the status quo would be negligible, provided participation by general category vessels that had a permit before the control date does not increase significantly above the recent levels. On the other hand, it is possible for the number of appeals to be greater than the number of vessels that fished during the recent years, resulting in more vessels participating in the fishery. If this were to happen, and the general category scallop landings increase above 10 percent of total scallop harvest, there could be short-term unexpected increase in fishing mortality on the scallop resource. NGOM Scallop Management Area Amendment 11 includes management measures specific to the NGOM scallop management area intended to allow a level of scallop fishing activity to occur outside of the constraints of the IFQ program and some other Amendment 11 provisions for general category vessels. Measures include the establishment of a TAC for the area derived from the Federal portion of the resource; a 200-lb (90.72-kg) possession limit for NGOM and IFQ scallop vessels; a restriction on dredge size; a restriction that catch by IFQ scallop vessels fishing in the area would be deducted from the IFQ scallop vessel's IFQ and from the NGOM TAC; trip declaration requirments; and a closure of the NGOM to all scallop vessels (including current limited access scallop vessels and Incidental scallop vessels) when the NGOM TAC is reached. The economic impacts of the NGOM Scallop Managemetn Area are analyzed in section 5.4.14.4 of the Amendment 11 document. The proposed NGOM Scallop Management Area alternative would have positive economic impacts on a large number of vessels that are not estimated to qualify for the IFQ permit but are estimated to qualify for an NGOM permit. These vessels would have an opportunity to land scallops in this area when the resource conditions are favorable. It would reduce the possession limit for NGOM and IFQ scallop vessels to 200 lb (90.72 kg) per trip to reduce incentives for larger vessels targeting scallops in this area. Although reducing the possession limit would have negative economic impacts on some vessels, the majority of the active vessels that would qualify for the NGOM permit general category permit landed 200 lb (90.72 kg) or less of scallops from any one trip, therefore would not be negatively impacted from 200 lb (90.72 kg) possession limit. In comparison, the no action alternative would have had negative economic impacts for vessels that could not qualify for the IFQ scallop permit. Under one alternative, Amendment 11 provisions would not have applied to NGOM and the general category vessels would have retained the opportunity to fish for scallops in NGOM and land up to 400 lb (181.44 kg) per trip. The lack of a TAC to limit landings, and the higher possession limit, would have had positive economic impacts on these vessels compared to the proposed alternative. On the other hand, because this alternative would let any vessel obtain a permit to fish in the area, it could lead to an influx of vessels from other areas to participate in the open access fishery in the NGOM. This would have negative impacts on the resource that made it unacceptable. Another alternative proposed that to qualify for an NGOM scallop permit, a vessel would have to have landed 100 lb (45.4 kg) of scallops during the period March 1, 1994, through November 1, 2004. The NGOM TAC under this alternative would be based on all landings of scallops from the NGOM area (not exclusively the Federal portion of the resource, as in the proposed action). This alternative also would have allowed vessels to continue fishing for up to 40 lb (18.14 kg) of scallops after harvest of the NGOM TAC. This alternative would also provide an advantage to IFQ scallop vessels by allowing them to land 400 lb (181.44 kg) per trip from this area, whereas NGOM scallop vessels could possess and land only up to 200 lb (90.72 kg) per trip. This alternative was not adopted because the qualification criteria would have had very little restriction on participation, would have had excessive administrative costs, and would not promote conservation of the scallop resource within the Gulf of Maine or overall. While it would have qualified more vessels than the proposed measure, the economic opportunity for those vessels would have been diluted by a very large number of qualified vessels fishing for a relatively small TAC. The no action alternative for the NGOM Scallop Management Area would not distinguish this area from other areas, and all Amendment 11 measures would apply equally throughout the range of the scallop resource. It was not selected because it would have negative impacts on vessels that traditionally fish in the NGOM and that could not qualify for the IFQ permit. Monitoring Provisions The economic impacts of monitoring provisions proposed in Amendment 11 are analyzed in section 5.4.15 of the Amendment 11 document. Since general category vessels that land over 40 lb (18.14 kg) are already required to have a VMS onboard, the compliance costs of this action are not expected to be significant. Vessels operating in the Northeast multispecies fishery are also required to have operational VMS units. Some of these vessel also have general category scallop permits and would be expected to qualify for one of the LAGC scallop permits. The majority of general category scallop vessels currently operate VMS as required either by the scallop regulations or the Northeast multispecies fishery regulations. The non-selected interactive voice reporting

(IVR)alternative does not have a distinct advantage compared to reporting through VMS. The no action alternative would not have the associated costs of reporting landings, but reporting of scallop catch for each trip is essential to monitor and enforce the IFQ and NGOM scallop fishery measures. Impacts of Limited Access Fishing under General Category Rules Amendment 11 provides the opportunity for current limited access vessels (i.e., full-time, part-time, or occasional limited access scallop vessels) to also be issued a LAGC scallop permit, if the vessel meets the qualification criteria. The economic impacts of allowing limited access vessels to continue to fish under general category rules are analyzed in section 5.4.16.1 of the Amendment 11 document. The proposed action would have positive economic impacts on 57 limited access vessels (38 full-time, and 19 part-time and occasional) that Amendment 11 estimates would qualify for an IFQ scallop permit. One non-selected alternative would prevent any limited access vessel from having a general category permit and another would prevent current full-time limited access scallop vessels from fishing under general category rules. This would result in negative economic impacts compared to the proposed alternative for those vessels noted above that have a historical level of participation in the general category fishery while fishing outside of scallop DAS. Under the proposed allocation to LAGC scallop vessels, 0.5 percent of the overall scallop TAC would be allocated to vessels with IFQ scallop permits that also have been issued a full-time, part- time, or occasional limited access scallop permit. IFQs for these vessels would be determined from the 0.5-percent TAC allocation. Under the transition measure before the IFQ program is implemented, IFQ scallop vessels that have also been issued a full-time, part-time, or occasional limited access scallop permit would fish under the 10-percent TAC allocated to the general category fleet. The proposed action would have positive economic impacts on those vessels. The 0.5-percent TAC for the limited access qualifiers is less than the percentage share of these vessels in total general category scallop landings in recent years, but almost equal to what was reported in the 2004 fishing year. Under one alternative, scallops landed by limited access vessels under general category rules would be deducted from the 5-percent TAC allocated to the IFQ vessels, negatively impacting the general category vessels that qualify for limited access, with small positive economic impacts on the limited access scallop fleet. This alternative was therefore not selected, and the separate 0.5-percent TAC is proposed. Allocation Between Limited Access and General Category Fisheries The Council considered alternative values for the TAC that would be allocated to IFQ scallop vessels (excluding IFQ scallop vessels also issued a full-time, part-time, or occasional limited access scallop permit), equal to 2.5, 5.0, 7.0, 10.0, and 11.0 percent of the overall projected scallop catch. The economic impacts of the various levels of TAC allocation between the limited access and LAGC fishery are analyzed in section 5.4.17 of the Amendment 11 document and have different distributional impacts. The proposed 5-percent general category TAC would have negative economic impacts on many general category vessels compared to status quo management because the fishery landed twice that level in both the 2005 and 2006 fishing years. On the other hand, the 5-percent TAC is higher than the long-term average percentage share of total scallop landings for the general category scallop fishery, which is 2.5 percent of overall scallop landings. The 5-percent allocation corresponds to the highest level reached by the general category fishery before the control date. Therefore, this allocation is consistent with the Council's decision in 2004 to implement a control date recognizing that that the substantial increase in general category fishing effort could lead to overfishing of the scallop resource and reduce economic benefits for everyone. The short-term and long-term economic impacts of the 5-percent TAC, combined with the limited entry program, compared to other alternative allocation amounts are discussed extensively above and are not repeated here. The proposed action includes several measures that could mitigate some of the adverse economic impacts of the limited access program for general category including the 5-percent TAC. The separate limited entry program for the NGOM is expected to provide an opportunity for owners of vessels that would not qualify for the IFQ scallop permit, but who have historically participated in the NGOM scallop fishery, to fish for scallops at a reduced scale (at a lower possession limit of 200 lb (90.72 kg) per trip) when the resource conditions in this area become favorable. The incidental catch permit would provide opportunity for the vessels that land scallops occasionally up to 40 lb (18.14 kg) per trip, including some vessels that qualify for limited access but received allocations lower than what they could land annually with the incidental permit. Furthermore, Amendment 11 includes a provision to allow vessel owners to combine IFQ allocations through the IFQ transfer program, up to 2 percent of the TAC allocated to the IFQ scallop fishery, so that vessel owners can buy or lease additional IFQ. Similarly, the proposed action to establish a process for sectors in the general category fishery would provide an opportunity for fishermen to benefit from an economically viable operation when the allocations of individual vessels are too small to make scallop fishing profitable. A lower TAC for general category would have larger negative proportional impacts on general category vessels while potentially increasing the revenues of the limited access fishery by a small percentage. A higher percentage TAC would reduce the negative impacts on general category vessels, but would lower the positive economic impacts on the current limited access. Incidental Catch Permit The economic impacts of the proposed Incidental catch permit are analyzed in section 5.4.18 of the Amendment 11 document. The proposed action would create an incidental catch permit for vessels to retain and sell up to 40 lb (18.14 kg) of scallop meats per trip, provided they had been issued a general category scallop permit as of November 1, 2004. The economic impacts of this alternative would be positive on vessels that do not qualify for the IFQ permit because it would allow them to still earn some income from scallops under the incidental catch permit. This measure could also benefit some vessels that qualify for the IFQ permit with low allocations. The owner of such a vessel might elect the Incidental scallop permit because the vessel could land more total pounds of scallops on several 40-lb (18.14-kg) trips than it could under its IFQ. The only alternative considered was no action, which would allow vessels to possess and land, but not sell, an incidental catch of scallops. This alternative would not provide any source of revenue for vessels that do not qualify for the IFQ or NGOM scallop permit. It also would complicate the Council's and NMFS's ability to determine the overall level of scallop catch from a fleet of vessels without scallop permits because none of the reporting and compliance measures would apply to non-permitted vessels. This could result in more cautious management measures in the future, with possible negative economic impacts on all vessels issued scallop permits. Changing of the Issuance Date of General Category Permits Amendment 11 proposes to change the permit issuance date for general category scallop permits from May 1 to March 1, to better align the general category scallop fishery with the scallop fishing year of March 1 through February 28/29. The economic impacts of changing the date that general category permits are issued are analyzed in section 5.4.19 of the Amendment 11 document. Changing the general category permit to March 1 is an administrative change and procedural adjustment for owners accustomed to a May 1 permit renewal. The proposed measure would allow, however, better estimation of the number of participants, the level of effort in the fishery and allocation of TAC by aligning the issuance date with date for the limited access fishery. As a result, the proposed action would have indirect positive economic impacts on the sea scallop fishery. The Council considered revising the start of the fishing year to May 1 or August 1. This would have had some positive impacts over the long term by better aligning the fishing year with the scallop survey, resulting in updated information on which to base the following year's management. This would increase the confidence in the effectiveness of scallop fishery management measures relative to the scallop fishing mortality goals of the FMP. On the other hand, these alternatives were strongly opposed by the scallop industry because it would require a change in the business plans of the scallop vessel owners. Other Measures Included in Amendment 11 Amendment 11 proposes two changes to scallop regulations, including a clarification that the maximum sweep length for trawl gear under the FMP would not apply to vessels fishing for Northeast multispecies or monkfish, and an allowance for general category vessels to possess up to 100 bu (35.24 hL) of in-shell scallops seaward of the VMS demarcation line. The economic impacts of these measures are analyzed in sections 5.4.20 and 5.4.21 of the Amendment 11 document. Clarification of trawl gear restriction for vessels fishing under a multispecies or monkfish DAS would have positive economic impacts on those general category vessels that catch scallops only incidentally, compared to no action. Setting the possession limit at 100 bu (35.24 hL) seaward of the demarcation line would have positive economic impacts on the general category vessels when they catch scallops with lower meat yield. The only alternative to both of these measures is the no action alternative, which does not provide the benefits of the proposed action noted above. Change to Ownership Cap Restriction to Account for CPHs This proposed rule includes a change to the ownership cap restriction for current limited access scallop vessels to clarify that the regulation was intended to apply to limited access scallop permits and CPHs. Currently, if a vessel owner has been issued a CPH, that owner cannot activate that CPH on a vessel if they already own 5 percent of the limited access scallop permits. That owner would therefore have to sell a vessel to activate the CPH. This clarification of the ownership cap to include CPH's does not change this, or the economic impacts of the ownership cap restrictions. There are no alternatives to clarifying the regulation, since the result would be that the scallop regulations would continue to be inconsistent with the intent of the original ownership cap restrictions included in the FMP. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Recordkeeping and reporting requirements. Dated: December 7, 2007. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows: PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 648.2, definitions for “limited access general category

(LAGC)scallop vessel” and “limited access scallop vessel” are added in alphabetical order to read as follows: § 648.2 Definitions. *Limited access general category

(LAGC)scallop vessel* means a vessel that has been issued an individual fishing quota (IFQ), Northern Gulf of Maine (NGOM), or incidental catch LAGC scallop permit pursuant to § 648.4(a)(2)(ii). An LAGC scallop vessel may also be issued a limited access scallop permit. *Limited access scallop vessel* means a vessel that has been issued a limited access full-time, part-time, or occasional scallop permit pursuant to § 648.4(a)(2)(i). A limited access scallop vessel may also be issued an LAGC scallop permit. 3. In § 648.4, paragraphs (a)(1)(i)(I)( *3* ), (a)(2) introductory text, (a)(2)(i) introductory text, (a)(2)(i)(M)( *1* ), (a)(2)(i)(M)( *2* ), (a)(2)(ii), and (e)(1)(iv) are revised, and paragraph (a)(2)(i)(P) is added to read as follows: § 648.4 Vessel permits.

(a)* * *

(1)* * *

(i)* * *

(I)* * * ( *3* ) With the exception of combination vessels, a vessel issued a limited access sea scallop dredge permit pursuant to paragraph (a)(2)(i) of this section is not eligible for limited access multispecies permits. This restriction is not applicable to vessels issued an LAGC scallop permit pursuant to paragraph (a)(2)(ii) of this section, unless such vessel has also been issued a limited access scallop permit pursuant to paragraph (a)(2)(i) of this section.

(2)Atlantic sea scallop vessels—Any vessel of the United States that fishes for, possesses, or lands Atlantic sea scallops, except vessels that fish exclusively in state waters for scallops, must have been issued and carry on board a valid scallop vessel permit pursuant to this section.

(i)*Limited access scallop permits* . Any vessel of the United States that possesses or lands more than 400 lb (181.44 kg) of shucked scallops, or 50 bu (17.62 hL) of in-shell scallops per trip, or possesses more than 100 bu (35.24 hL) seaward of the VMS Demarcation Line, except vessels that fish exclusively in state waters for scallops, must have been issued and carry on board a valid limited access scallop permit.

(M)*Percentage ownership restrictions* . ( *1* ) For any vessel acquired after March 1, 1994, a vessel owner is not eligible to be issued a limited access scallop permit for the vessel, or a confirmation of permit history, if, as a result of the issuance of the permit or confirmation of permit history, the vessel owner, or any other person who is a shareholder or partner of the vessel owner, will have an ownership interest in a total number of limited access scallop vessels and limited access scallop confirmations of permit history in excess of 5 percent of the number of all limited access scallop vessels and confirmations of permit history at the time of permit application. ( *2* ) Vessel owners who were initially issued a 1994 limited access scallop permit or confirmation of permit history, or who were issued or renewed a limited access scallop permit or confirmation of permit history for a vessel in 1995 and thereafter, in compliance with the ownership restrictions in paragraph (a)(2)(i)(M)( *1* ) of this section, are eligible to renew such permits(s) or confirmation(s) of permit history, regardless of whether the renewal of the permits or confirmations of permit history will result in the 5 percent ownership restriction being exceeded.

(P)*VMS requirement* . A vessel issued a limited access scallop permit, as specified in paragraph (a)(2)(i) of this section, except a vessel issued an occasional scallop permit that is not fishing in a sea scallop access area, must have an operational VMS installed. Prior to issuance of a limited access scallop permit, NMFS must receive a signed VMS certification from the vessel owner and be notified by the VMS vendor that the unit has been installed and is operational.

(ii)*LAGC scallop permits* . With the exception of any vessel that fishes exclusively in state waters for scallops, any vessel of the United States that is not in possession of a limited access scallop permit pursuant to paragraph (a)(2)(i) of this section, and any vessel issued a limited access scallop permit that fishes for scallops outside of the scallop DAS program described in § 648.53 or the Area Access program described in § 648.60, any vessel that fishes for, possesses, or lands scallops must be issued an LAGC scallop permit and must comply with the permit requirements described in paragraphs (a)(2)(ii)(A), (B), or

(C)of this section. To be issued an LAGC scallop permit, a vessel owner must meet the qualification criteria specified in paragraphs (a)(2)(ii)(D) or

(F)of this section and must comply with the application procedures specified in paragraph (a)(2)(ii)(H) of this section.

(A)*Individual fishing quota LAGC permit* . To possess or land up to 400 lb (181.44 kg) of shucked meats, or 50 bu (17.62 hL) of in-shell scallops per trip, or possess up to 100 bu (35.24 hL) of in-shell scallops seaward of the VMS demarcation line, a vessel must have been issued an individual fishing quota LAGC scallop permit (IFQ scallop permit). Issuance of an initial IFQ scallop permit is contingent upon the vessel owner submitting the required application and other information to demonstrate that the vessel meets the eligibility criteria specified in paragraph (a)(2)(ii)(D) of this section.

(B)*Northern Gulf of Maine LAGC permit* . To possess or land up to 200 lb (90.72 kg) of shucked or 25 bu (8.81 hL) in-shell scallops per trip, or to possess up to 50 bu (17.62 hL) seaward of the VMS demarcation line, a vessel must have been issued a Northern Gulf of Maine LAGC scallop permit (NGOM scallop permit). A vessel issued a NGOM scallop permit may not fish for scallops south of 42°20′N. Lat, and may not possess or land more than 200 lb (90.72 kg) of shucked or 25 bu (8.81 hL) of in-shell scallops at any time, except the vessel may possess up to 50 bu (17.62 hL) of in-shell scallops seaward of the VMS demarcation line. Issuance of an initial NGOM scallop permit is contingent upon the vessel owner submitting the required application and other information to demonstrate that the vessel meets the eligibility criteria specified in paragraph (a)(2)(ii)(F) of this section.

(C)*Incidental catch LAGC permit* . To possess or land up to 40 lb (18.14 kg) of shucked or 5 bu (1.76 hL) in-shell scallops per trip, or possess up to 10 bu (3.52 hL) in-shell scallops per trip seaward of the VMS demarcation line, but not more than these amounts per trip, a vessel must have been issued an incidental catch general category scallop permit (Incidental scallop permit). A vessel issued an incidental catch general scallop permit may not possess or land more than 40 lb (18.14 kg) of shucked or 5 bu (1.76 hL) of in-shell scallops at any time, except the vessel may possess up to 10 bu (3.52 hL) of in-shell scallops seaward of the VMS demarcation line. Issuance of an initial incidental catch category scallop permit is contingent upon the vessel owner submitting the required application and other information to demonstrate that the vessel meets the eligibility criteria specified in paragraph (a)(2)(ii)(G) of this section.

(D)*Eligibility for an IFQ scallop permit* . A vessel is eligible for and may be issued an IFQ scallop permit if it meets both eligibility criteria specified in paragraphs (a)(2)(ii)(D)( *1* ) and ( *2* ) of this section, or is replacing a vessel that meets both the eligibility criteria specified in paragraphs (a)(2)(ii)(D)( *1* ) and ( *2* ) of this section. A vessel owner may appeal NMFS's determination that a vessel does not meet the requirements specified in paragraphs (a)(2)(ii)(D)( *1* ) and ( *2* ) of this section by complying with the appeal process, as specified in paragraph (a)(2)(ii)(O) of this section. ( *1* ) *Permit criteria* . A vessel must have been issued a general category scallop permit in at least one scallop fishing year, as defined in § 648.2, between March 1, 2000, and November 1, 2004. ( *2* ) *Landings criteria* . A vessel must have landed at least 1,000 lb (454 kg) of shucked scallops in any one year when the vessel also held a general category scallop permit as specified in paragraph (a)(2)(ii)(D)( *1* ) of this section. NMFS dealer data will be used to make the initial determination of vessel eligibility. If a dealer reported more than 400 lb (181.44 kg) of scallops on a trip, 400 lb (181.44 kg) will be credited toward the landings criteria. For dealer reports that indicate clearly that the landings were bushels of in-shell scallops, a conversion of 8.33 lb (3.78 kg) of scallop meats per bushel will be used to calculate meat-weight, up to the maximum of 400 lb (181.44 kg) per trip.

(E)*Contribution factor for determining a vessel's individual fishing quota* . An eligible IFQ scallop vessel's best year of scallop landings, as specified in § 648.53(h)(2), and the vessel's number of years active, as specified in § 648.53(h)(3), shall be used to calculate a vessel's contribution factor, as specified in § 648.53(h)(1). A vessel owner that has applied for an IFQ scallop permit will be notified of the vessel's contribution factor at the time of issuance of the IFQ scallop permit. A vessel owner may appeal NMFS's determination of the IFQ scallop vessel's contribution factor by complying with the appeal process as specified in paragraph (a)(2)(ii)(O) of this section.

(F)*Eligibility for NGOM or Incidental scallop permit* . A vessel that is not eligible for, or for which the vessel's owner chooses not to apply for an IFQ scallop permit, may be issued either a NGOM scallop permit or an Incidental scallop permit if the vessel held a general category scallop permit on November 1, 2004, or if the vessel is replacing a vessel that held a general category scallop permit on November 1, 2004. A vessel owner may appeal NMFS's determination that a vessel does not meet this criteria by complying with the appeal process as specified in paragraph (a)(2)(ii)(O) of this section.

(G)*LAGC permit restrictions* —( *1* ) *Change of permit category* . ( *i* ) *IFQ scallop permit* . A vessel issued an IFQ scallop permit may not change its general category scallop permit category at any time without voluntarily relinquishing its IFQ scallop permit eligibility as specified in paragraph (a)(2)(ii)(M) of this section. If the vessel owner has elected to relinquish the vessel's IFQ permit and instead be issued an NGOM or Incidental scallop permit, the IFQ permit shall be permanently relinquished. ( *ii* ) *NGOM and Incidental scallop permit* . A vessel may be issued either an NGOM or Incidental scallop permit for each fishing year, and a vessel owner may not change his/her LAGC scallop permit category during the fishing year, except as specified in this paragraph, (a)(2)(ii)(G)( *1* )( *ii* ) . The owners of a vessel issued an NOGM or Incidental scallop permit must elect a permit category in the vessel's permit application and shall have one opportunity to request a change in its permit category by submitting an application to the Regional Administrator within 45 days of the effective date of the vessel's permit. After that date, the vessel must remain in that permit category for the duration of the fishing year.

(2)*VMS requirement* . A vessel issued a LAGC permit must have an operational VMS installed. Issuance of an Atlantic sea scallop permit requires the vessel owner to submit a copy of the vendor's installation receipt or provide verification of vendor activation from a NMFS-approved VMS vendor as described in § 648.9.

(H)*Application/renewal restrictions* . See paragraph (a)(1)(i)(B) of this section. Applications for a LAGC permit described in paragraph (a)(2)(ii) of this section must be postmarked no later than [ *date 90 days from the date the Final Rule is published in the FEDERAL REGISTER* ]. Applications for LAGC permits that are not postmarked on or before [ *date 90 days from the date the Final Rule is published in the FEDERAL REGISTER* ] may be denied and returned to the sender with a letter explaining the denial. Such denials may not be appealed and shall be the final decision of the Department of Commerce.

(I)*Qualification restriction* . ( *1* ) See paragraph (a)(1)(i)(C) of this section for restrictions applicable to limited access scallop permits. ( *2* ) Notwithstanding paragraph (a)(1)(i)(L) of this section, scallop landings history generated by separate owners of a single vessel at different times during the qualification period for LAGC scallop permits may be used the qualify more than one vessel, provided that each owner applying for an LAGC scallop permit demonstrates that he/she created distinct fishing histories, that such histories have been retained, and if the vessel was sold, that each applicant's eligibility and fishing history is distinct. ( *3* ) Notwithstanding paragraph (a)(1)(i)(L) of this section, vessel owners applying for a LAGC permit who sold a vessel with non-scallop limited access permits, as specified in paragraph (a)(1)(i)(D) of this section, and retained only the general category scallop history as specified in paragraph (a)(1)(i)(D) of this section, before [ *DATE FINAL RULE PUBLISHED IN THE FEDERAL REGISTER* ], may use the general category scallop history to qualify a vessel for the initial IFQ scallop permit.

(J)*Change in ownership* . See paragraph (a)(1)(i)(D) of this section.

(K)*Replacement vessels* . A vessel owner may apply to replace a qualified LAGC vessel with another vessel that he/she owns. There are no size or horsepower restrictions on replacing general LAGC vessels, unless the qualified vessel that will be replaced is subject to such restriction because of other limited access permits issued pursuant to § 648.4. In order for a LAGC that also has other limited access permits issued pursuant to § 648.4 to be replaced by a vessel that does not meet the replacement and upgrade restrictions specified for those other limited access permits, the other limited access permits must be permanently relinquished, as specified in paragraph (a)(1)(i)(K) of this section.

(L)*Confirmation of Permit History* . See paragraph (a)(1)(i)(J) of this section.

(M)Abandonment or voluntary relinquishment of permits. See paragraph (a)(1)(i)(K) of this section.

(N)*Restriction on permit splitting* . See paragraph (a)(1)(i)(L) of this section.

(O)*Appeal of denial of permit* —( *1* ) *Eligibility* . Any applicant eligible to apply for an LAGC scallop permit who is denied such permit may appeal the denial to the Regional Administrator within 30 days of the notice of denial. Any such appeal may only be based on the grounds that the information used by the Regional Administrator was incorrect. The appeal must be in writing, must state the specific grounds for the appeal, and must include information to support the appeal. ( *2* ) *Contribution factor appeals* . Any applicant eligible to apply for a IFQ scallop permit who disputes NMFS's determination of the vessel's contribution factor specified in paragraph (a)(2)(ii)(E) of this section may appeal NMFS's determination to the Regional Administrator within 30 days of the notification of the vessel's best year and years active. Any such appeal may only be based on the grounds that the information used by the Regional Administrator was incorrect. The appeal must be in writing, must state the specific grounds for the appeal, and must include information to support the appeal. A vessel owner may appeal both the eligibility criteria and the contribution factor and must submit the appeal for both at the same time. An appeal of contribution factor determinations shall be reviewed concurrently with an eligibility appeal, if applicable. ( *3* ) *Appeal review* . The Regional Administrator shall appoint a designee who shall make the initial decision on the appeal. The appellant may request a review of the initial decision by the Regional Administrator by so requesting in writing within 30 days of the notice of the initial decision. If the appellant does not request a review of the initial decision within 30 days, the initial decision is the final administrative action of the Department of Commerce. Such review will be conducted by a hearing officer appointed by the Regional Administrator. The hearing officer shall make findings and a recommendation to the Regional Administrator, which shall be advisory only. Upon receiving the findings and the recommendation, the Regional Administrator shall issue a final decision on the appeal. The Regional Administrator's decision is the final administrative action of the Department of Commerce. ( *4* ) *Status of vessels pending appeal* . A vessel denied an LAGC scallop permit may fish while under appeal, provided that the denial has been appealed, the appeal is pending, and the vessel has on board a letter from the Regional Administrator authorizing the vessel to fish under the limited access general category permit. The Regional Administrator shall issue such a letter that shall be effective during the pendency of any appeal. The letter of authorization must be carried on board the vessel. If the appeal is finally denied, the Regional Administrator shall send a notice of final denial to the vessel owner; the authorizing letter becomes invalid 5 days after receipt of the notice of denial, but no later than 10 days from the date of the letter of denial.

(e)* * *

(1)* * *

(iv)An applicant applying for a limited access multispecies combination vessel or individual DAS permit, a limited access scallop permit (except an occasional scallop permit), an LAGC scallop permit, or electing to use a VMS, has failed to meet all of the VMS requirements specified in §§ 648.9 and 648.10; or 4. In § 648.5, paragraph

(a)is revised as follows: § 648.5 Operator permits.

(a)*General* . Any operator of a vessel fishing for or possessing: Atlantic sea scallops, NE multispecies, spiny dogfish, monkfish, Atlantic herring, Atlantic surfclam, ocean quahog, Atlantic mackerel, squid, butterfish, scup, black sea bass, or Atlantic bluefish, harvested in or from the EEZ; tilefish harvested in or from the EEZ portion of the Tilefish Management Unit; skates harvested in or from the EEZ portion of the Skate Management Unit; or Atlantic deep-sea red crab harvested in or from the EEZ portion of the Red Crab Management Unit, issued a permit, including carrier and processing permits, for these species under this part, must have been issued under this section, and carry on board, a valid operator permit. An operator's permit issued pursuant to part 622 or part 697 of this chapter satisfies the permitting requirement of this section. This requirement does not apply to operators of recreational vessels. 5. In § 648.9, paragraphs (c)(1)(iii) and (c)(2)(i)(D) are revised to read as follows: § 648.9 VMS requirements.

(c)* * *

(1)* * *

(iii)At least twice per hour, 24 hr a day, throughout the year, for vessels issued a scallop permit and subject to the requirements of § 648.4(a)(2)(ii)(B).

(2)* * *

(i)* * *

(D)The vessel has been issued a general scallop permit, is not in possession of any scallops onboard the vessel, is tied to a permanent dock or mooring, the vessel operator has notified NMFS through VMS by transmitting the appropriate VMS power-down code, that the VMS will be powered down, and the vessel is not required by other permit requirements for other fisheries to transmit the vessel's location at all times. Such a vessel must repower the VMS and submit a valid VMS activity declaration prior to moving from the fixed dock or mooring. VMS codes and instructions are available from the Regional Administrator upon request. 6. In § 648.10, paragraphs (b)(1)(i); and (b)(2)(i) and (ii), and

(c)introductory text are revised; paragraphs (b)(1)(iii) and

(iv)are removed and reserved; and paragraphs (b)(4)(i) through

(iv)are added as follows: § 648.10 DAS and VMS notification requirements.

(b)* * *

(1)* * *

(i)A scallop vessel issued a Full-time or Part-time limited access scallop permit or an LAGC scallop permit;

(2)* * *

(i)A vessel subject to the VMS requirements of § 648.9 and this paragraph

(b)that has crossed the VMS Demarcation Line specified under paragraph

(a)of this section is deemed to be fishing under the DAS program, the general category scallop fishery, or other fishery requiring the operation of VMS as applicable, unless prior to the vessel leaving port, the vessel's owner or authorized representative declares the vessel out of the scallop, NE multispecies, or monkfish fishery, as applicable, for a specific time period by notifying NMFS by transmitting the appropriate VMS code through the VMS, or unless the vessel's owner or authorized representative declares the vessel will be fishing in the Eastern U.S./Canada Area as described in § 648.85(a)(3)(ii) under the provisions of that program.

(ii)Notification that the vessel is not fishing under the DAS program, the general category scallop fishery, or other fishery requiring the operation of VMS, must be received prior to the vessel leaving port. A vessel may not change its status after the vessel leaves port or before it returns to port on any fishing trip.

(4)* * *

(i)*IFQ scallop vessels* . An IFQ scallop vessel that has crossed the VMS Demarcation Line specified under paragraph

(a)of this section is deemed to be fishing under the IFQ program, unless prior to the vessel leaving port, the vessel's owner or authorized representative declares the vessel out of the scallop fishery (i.e., the vessel will not possess, retain, or land scallops) for a specific time period by notifying the Regional Administrator through the VMS. An IFQ scallop vessel that is fishing north of 42°20′ N. Lat. is deemed to be fishing under the NGOM scallop fishery unless prior to the vessel leaving port, the vessel's owner or authorized representative declares the vessel out of the scallop fishery as specified in paragraphs (b)(2)(i) and

(ii)of this section, and the vessel does not possess, retain, or land scallops.

(ii)*NGOM scallop fishery* . An NGOM scallop vessel is deemed to be fishing under the NGOM scallop fishery unless prior to the vessel leaving port, the vessel's owner or authorized representative declares the vessel out of all fisheries as specified in paragraphs (b)(2)(i) and

(ii)of this section, and the vessel does not possess, retain, or land scallops.

(iii)*Incidental scallop fishery* . An Incidental scallop vessel that has crossed the demarcation line on any declared fishing trip for any species is deemed to be fishing under the Incidental scallop fishery unless prior to the vessel leaving port, the vessel's owner or authorized representative declares the vessel out of all fisheries as specified in paragraphs (b)(2)(i) and

(ii)of this section, and the vessel does not possess, retain, or land scallops.

(iv)*Catch reports* . All scallop vessels fishing in the Sea Scallop Area Access Program as described in § 648.60 are required to submit a daily report through VMS of scallops kept and yellowtail flounder caught (including discarded yellowtail flounder) on each Access Area trip. A vessel issued an IFQ or NGOM scallop permit must report through VMS the amount of scallops kept on each trip declared as a scallop trip or on trips that are not declared through VMS as a scallop trip, but on which scallops are caught incidentally. VMS catch reports by such vessels must be sent prior to crossing the VMS demarcation line on the way into port at the end of the trip and must include the amount of scallop meats to be landed, the estimated time of arrival in port, the port at which the scallops will be landed, and the vessel trip report serial number recorded from that trip's vessel trip report.

(c)*Call-in notification* . The owner of a vessel issued a limited access monkfish or red crab permit who is participating in a DAS program and who is not required to provide notification using a VMS, and a scallop vessel qualifying for a DAS allocation under the occasional category that has not elected to fish under the VMS notification requirements of paragraph

(b)of this section and is not participating in the Sea Scallop Area Access program as specified in § 648.60, and any vessel that may be required by the Regional Administrator to use the call-in program under paragraph

(d)of this section, are subject to the following requirements: 7. In § 648.14, paragraphs (a)(56), (a)(57), (a)(61), (f), (h)(1), (h)(6), (h)(9), (h)(19), (h)(27), (i), and

(s)are revised, and paragraphs (a)(180) and (h)(28) are added to read as follows: § 648.14 Prohibitions.

(a)* * *

(56)Fish for, possess, or land, scallops without the vessel having been issued and carrying onboard a valid scallop permit in accordance with § 648.4(a)(2) and having declared into the scallop fishery unless the scallops were harvested by a vessel that has not been issued a Federal scallop permit and fishes for scallops exclusively in state waters;

(57)Fish for or land per trip, or possess at any time prior to a transfer to another person for a commercial purpose, other than solely for transport:

(i)In excess of 40 lb (18.14 kg) shucked scallops at any time, 5 bu (1.76 hl) in-shell scallops shoreward of the VMS Demarcation Line, or 10 bu (3.52 hL) of in-shell scallops seaward of the VMS Demarcation Line, unless:

(A)The scallops were harvested by a vessel that has not been issued a scallop permit and fishes for scallops exclusively in state waters;

(B)The scallops were harvested by a vessel that has been issued and carries on board an IFQ scallop permit issued pursuant to § 648.4(a)(2)(ii)(A) and is properly declared into the IFQ scallop fishery;

(C)The scallops were harvested by a vessel that has been issued and carries on board an NGOM scallop permit issued pursuant to § 648.4(a)(2)(ii)(B), and is properly declared into the NGOM scallop management area, and the NGOM TAC specified in § 648.62 has not been harvested; and/or

(D)The scallops were harvested by a vessel that has been issued and carries on board an Incidental scallop permit allowing up to 40 lb (18.14 kg) of shucked or 5 bu (1.76 hL) of in-shell scallops, is carrying an at-sea observer, and is authorized by the Regional Administrator to have an increased possession limit to compensate for the cost of carrying the observer.

(ii)In excess of 200 lb (90.72 kg) shucked scallops at any time, 25 bu (25x hl) in-shell scallops inside the VMS Demarcation Line, or 50 bu (17.62 hL) of in-shell scallops seaward of the VMS Demarcation Line, unless:

(A)The scallops were harvested by a vessel that has not been issued a scallop permit and fishes for scallops exclusively in state waters;

(B)The scallops were harvested by a vessel that has been issued and carries on board a limited access scallop permit and is properly declared into the scallop DAS or Area Access program;

(C)The scallops were harvested by a vessel that has been issued and carries on board an IFQ scallop permit issued pursuant to § 648.4(a)(2)(ii)(A), is fishing outside of the NGOM scallop management area, and is properly declared into the general category scallop fishery;

(D)The scallops were harvested by a vessel that has been issued and carries on board a scallop permit and the vessel is fishing in accordance with the provisions of the state waters exemption program specified in § 648.54; and/or

(E)The scallops were harvested by a vessel that has been issued and carries on board an NGOM scallop permit allowing up to 200 lb (90.72 kg) of shucked or 25 bu (25x hL) of in-shell scallops, is carrying an at-sea observer, and is authorized by the Regional Administrator to have an increased possession limit to compensate for the cost of carrying the observer.

(iii)In excess of 400 lb (181.4 kg) shucked scallops at any time, 50 bu (17.6 hl) in-shell scallops shoreward of the VMS Demarcation Line, or 100 bu (35.24 hL) in-shell scallops seaward of the VMS Demarcation Line, unless:

(A)The scallops were harvested by a vessel that has not been issued a scallop permit and fishes for scallops exclusively in state waters.

(B)The scallops were harvested by a vessel that has been issued and carries on board a limited access scallop permit issued pursuant to § 648.4(a)(2)(i) and is properly declared into the scallop DAS or Area Access program;

(C)The scallops were harvested by a vessel that has been issued and carries on board a scallop permit and the vessel is fishing in accordance with the provisions of the state waters exemption program specified in § 648.54;

(D)The scallops were harvested by a vessel that has been issued and carries on board a limited access scallop permit that has also been issued an IFQ scallop permit, and is properly declared into the IFQ program; and/or

(E)The scallops were harvested by a vessel that has been issued and carries on board an IFQ scallop permit, is carrying an at-sea observer, and is authorized by the Regional Administrator to have an increased possession limit to compensate for the cost of carrying the observer.

(61)Sell, barter or trade, or otherwise transfer, or attempt to sell, barter or trade, or otherwise transfer, for a commercial purpose, scallops, unless the vessel has been issued a valid scallop permit pursuant to § 648.4(a)(2), or the scallops were harvested by a vessel that has not been issued a scallop permit and fishes for scallops exclusively in state waters.

(180)Fail to comply with the requirements and restrictions for general category scallop sectors specified in § 648.63.

(f)In addition to the general prohibitions specified in § 600.725 of this chapter and in paragraph

(a)of this section, it is unlawful for any person owning or operating a vessel issued a scallop permit under § 648.4(a)(2) to land, or possess at or after landing, in-shell scallops smaller than the minimum shell height specified in § 648.50(a).

(h)* * *

(1)Fish for, possess, or land scallops after using up the vessel's annual DAS allocation and Access Area trip allocations or when not properly declared into the DAS or Area Access program pursuant to § 648.10, unless the vessel has been issued an LAGC scallop permit pursuant to § 648.4(a)(2)(ii), has properly declared into a general category scallop fishery, and does not exceed the allowed possession limit for the LAGC scallop permit issued to the vessel as specified in § 648.52, or unless exempted from DAS allocations as provided in § 648.54.

(6)Have an ownership interest in more than 5 percent of the total number of vessels issued limited access scallop permits and confirmations of permit history, except as provided in § 648.4(a)(2)(i)(M).

(9)Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (1.76 hL) of in-shell scallops, or participate in the scallop DAS or Area Access programs, while in the possession of trawl nets that have a maximum sweep exceeding 144 ft (43.9 m), as measured by the total length of the footrope that is directly attached to the webbing of the net, except as specified in § 648.51(a)(1), unless the vessel is fishing under the northeast multispecies or monkfish DAS program.

(19)Fail to comply with any requirement for participating in the State Waters Exemption Program specified in § 648.54.

(27)Possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(f), outside the boundaries of the Elephant Trunk Access Area specified in § 648.59(e) by a vessel that is properly declared into the Elephant Trunk Access Area under the Area Access Program as specified in § 648.60.

(28)Fish for or land per trip, or possess at any time, scallops in the NGOM scallop management area after notification in the **Federal Register** that the NGOM scallop management area TAC has been harvested, as specified in § 648.62, unless the vessel possesses or lands scallops that were harvested south of 42°20′ N. Lat., the vessel is transiting the NGOM scallop management area, and the vessel's fishing gear is properly stowed and unavailable for immediate use.

(i)*LAGC scallop vessels* .

(1)In addition to the general prohibitions specified in § 600.725 of this chapter and in paragraphs (a), (f), and

(g)of this section, it is unlawful for any person owning or operating a vessel issued an LAGC scallop permit to do any of the following:

(i)Fail to comply with the LAGC scallop permit restrictions as specified in § 648.4(a)(2)(ii)(G) through (O);

(ii)Fish for, possess, or land scallops on more than one trip per calendar day;

(iii)Possess in-shell scallops while in possession of the maximum allowed amount of shucked scallops specified for each LAGC scallop permit category in § 648.62;

(iv)Fish for, possess, or land scallops on a vessel that is declared out of scallop fishing;

(v)Possess or use trawl gear that does not comply with any of the provisions or specifications in § 648.51(a), unless the vessel is fishing under the Northeast multispecies or monkfish DAS program;

(vi)Possess or use dredge gear that does not comply with any of the provisions or specifications in § 648.51(b).

(vii)Refuse, or fail, to carry an observer after being requested to carry an observer by the Regional Administrator;

(viii)Fail to provide an observer with required food, accommodations, access, and assistance, as specified in § 648.11;

(ix)Fail to comply with the notification requirements specified in § 648.11(g)(2) or refuse or fail to carry an observer after being requested to carry an observer by the Regional Administrator or Regional Administrator's designee;

(x)Fail to comply with any of the VMS requirements specified in §§ 648.10 and 648.60;

(xi)Fail to comply with any requirement for declaring in or out of the general category scallop fishery or other notification requirements specified in § 648.10(b);

(xii)Fail to comply with any of the requirements specified in § 648.60;

(xiii)Declare into or leave port for an area specified in § 648.59(b) through

(d)after the effective date of the notification published in the **Federal Register** stating that the general category scallop TAC has been harvested as specified in § 648.60;

(xiv)Declare into or leave port for an area specified in § 648.59(b) through

(d)after the effective date of the notification published in the **Federal Register** stating that the number of general category trips have been taken as specified in § 648.60;

(xv)Declare into or leave port for an area specified in § 648.59(b) through

(d)after the effective date of the notification published in the **Federal Register** stating that the yellowtail flounder TAC has been harvested as specified in § 648.85(c);

(xvi)Declare into or leave port for the NGOM scallop management area specified in § 648.62 after the effective date of the notification published in the **Federal Register** stating that the general category scallop TAC has been harvested as specified in § 648.62;

(xvii)Fish for, possess, or land scallops in or from the NGOM scallop management area after the effective date of the notification published in the **Federal Register** that the NGOM scallop management area TAC has been harvested, as specified in § 648.62, unless the vessel possesses or lands scallops that were harvested south of 42°20′ N. Lat., the vessel is transiting the NGOM scallop management area, and the vessel's fishing gear is properly stowed and unavailable for immediate use; (xviii) Fail to comply with any of the requirements and restrictions for general category sectors and harvesting cooperatives specified in § 648.63; or

(xix)Fish for, land, or possess scallops at any time after 10 days from being notified that his or her appeal for an LAGC scallop permit has been denied and that the denial is the final decision of the Department of Commerce.

(2)In addition to the general prohibitions specified in § 600.725 of this chapter and in paragraphs (a), (f), and

(g)of this section, it is unlawful for any person owning or operating a vessel issued an IFQ scallop permit to do any of the following:

(i)Fish for or land per trip, or possess at any time, in excess of 400 lb (181.4 kg) of shucked, or 50 bu (17.62 hL) of in-shell scallops, unless the vessel is participating in the Area Access Program specified in § 648.60, is carrying an observer as specified in § 648.11, and an increase in the possession limit is authorized as specified in § 648.60(d)(2);

(ii)Fish for or land per trip, or possess at any time, in excess of 200 lb (90.7 kg) of shucked or 25 bu (8.81 hl) of in-shell scallops in the NGOM scallop management area, unless the vessel is seaward of the VMS Demarcation Line and in possession of no more than 50 bu (17.62 hL) in-shell scallops, when not declared into the NGOM scallop management area, or is transiting the NGOM scallop management area with gear properly stowed and unavailable for immediate use.

(iii)Possess more than 100 bu (35.24 hL) of in-shell scallops seaward of the VMS demarcation line, or possess, or land per trip, more than 50 bu (17.62 hL) of in-shell scallops shoreward of the VMS demarcation line, unless exempted from DAS allocations as provided in § 648.54;

(iv)Possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries of the Elephant Trunk Access Area specified in § 648.59(e) by a vessel that is properly declared into the Elephant Trunk Access Area under the Area Access Program as specified in § 648.60;

(v)Fish for, possess, or land scallops after the effective date of the notification in the **Federal Register** that the quarterly TAC specified in § 648.53(a)(7) has been harvested;

(vi)Fish for, possess, or land scallops in excess of a vessel's IFQ;

(vii)Have an ownership interest in vessels that collectively is more than 5 percent of the total IFQ scallop TAC specified in accordance with § 648.53(a), except as provided in § 648.4(h)(4);

(viii)Have an IFQ allocation on an IFQ scallop vessel of more than 2 percent of the total IFQ scallop TAC specified in accordance with § 648.53(a), except as provided in § 648.4(h)(4);

(ix)Apply for an IFQ transfer that will result in the transferee having an aggregate ownership interest in more than 5 percent of the total IFQ scallop TAC, except as provided in § 648.53(h)(4).

(x)Apply for an IFQ transfer that will result in the receiving vessel having an IFQ allocation in excess of 2 percent of the total IFQ scallop TAC, except as provided in § 648.53(h)(4);

(xi)Fish for, possess, or land transferred IFQ prior to approval of the transfer by the Regional Administrator as specified in § 648.53(h)(4)(ii);

(xii)Provide false information in relation to or on an application for an IFQ transfer required under § 648.53(h)(4);

(xiii)Sub-lease scallop IFQ;

(xiv)Transfer scallop IFQ to another IFQ scallop vessel after the transferring vessel has landed scallops;

(xv)Transfer a portion of a vessel's scallop IFQ; or

(xvi)Transfer scallop IFQ to, or receive scallop IFQ on, a vessel that has not been issued a valid IFQ scallop permit.

(3)In addition to the general prohibitions specified in § 600.725 of this chapter and in paragraphs (a), (f), and

(g)of this section, it is unlawful for any person owning or operating a vessel issued an NGOM scallop permit to do any of the following:

(i)Declare into or leave port for a scallop trip, or fish for or possess scallops south of 42°20′ N. Lat.;

(ii)Fish for or land per trip, or possess at any time, in excess of 200 lb (90.7 kg) of shucked or 25 bu (8.81 hl) of in-shell scallops in or from the NGOM scallop management area, except when seaward of the VMS Demarcation Line and in possession of no more than 50 bu (17.62 hL) in-shell scallops; or

(iii)Fish for, possess, or land scallops after the effective date of notification in the **Federal Register** that the NGOM scallop management area TAC has been harvested;

(4)In addition to the general prohibitions specified in § 600.725 of this chapter and in paragraphs (a), (f), and

(g)of this section, it is unlawful for any person owning or operating a vessel issued an Incidental scallop permit to fish for, possess, or retain, more than 40 lb (18.14 kg) of shucked scallops, or 5 bu (1.76 hL) of in-shell scallops, except the vessel may possess up to 10 bu (3.52 hL) of in-shell scallops while seaward of the VMS Demarcation Line.

(s)Any person fishing for, possessing, or landing scallops at or prior to the time when those scallops are received or possessed by a dealer, is subject to all of the scallop prohibitions specified in this section, unless the scallops were harvested by a vessel without a scallop permit that fishes for scallops exclusively in state waters. 8. In § 648.51, paragraphs (a)(1) and (a)(2)(i) are revised to read as follows: § 648.51 Gear and crew restrictions.

(a)* * *

(1)*Maximum sweep* . The trawl sweep of nets shall not exceed 144 ft (43.9 m), as measured by the total length of the footrope that is directly attached to the webbing, unless the net is stowed and not available for immediate use, as specified in § 648.23, or unless the vessel is fishing under the Northeast multispecies or monkfish DAS programs.

(2)* * *

(i)*Minimum mesh size* . Subject to applicable minimum mesh size restrictions for other fisheries as specified under this part, the mesh size for any scallop trawl net in all areas shall not be smaller than 5.5 inches (13.97 cm). 9. Section 648.52 is revised to read as follows: § 648.52 Possession and landing limits.

(a)A vessel issued an IFQ scallop permit that is declared into the IFQ scallop scallop fishery as specified in § 648.10(b), unless exempted under the state waters exemption program described under § 648.54, may not possess or land, per trip, more than 400 lb (181.44 kg) of shucked scallops, or possess more than 50 bu (17.62 hL) of in-shell scallops shoreward of the VMS Demarcation Line. Such a vessel may fish for, possess, or land scallops only once in any calendar day. Such a vessels may possess up to 100 bu (35.24 hl) of in-shell scallops seaward of the VMS demarcation line on a properly declared IFQ scallop trip.

(b)A vessel issued an NGOM scallop permit, or an IFQ scallop permit that is declared into the NGOM scallop fishery as described in § 648.62, unless exempted under the state waters exemption program described under § 648.54, may not possess or land, per trip, more than 200 lb (90.7 kg) of shucked, or 25 bu (8.81 hL) of in-shell scallops. Such a vessel may not fish for scallops more than once in any calendar day. Such a vessel may possess up to 50 bu (17.62 hL) of in-shell scallops seaward of the VMS demarcation line on a properly declared NGOM scallop fishery trip.

(c)A vessel issued an Incidental scallop permit, or an IFQ or NGOM scallop permit that is not declared into the IFQ or NGOM scallop fishery as required under § 648.10(b)(4), unless exempted under the state waters exemption program described under § 648.54, may not possess or land, per trip, more than 40 lb (18.14 kg) of shucked, or 5 bu (1.76 hL) of in-shell scallops. Such a vessel may not fish for scallops more than once in any calendar day. Such a vessel may possess up to 10 bu (3.52 hL) of in-shell scallops seaward of the VMS demarcation line.

(d)Owners or operators of vessels with a limited access scallop permit that have properly declared into the Sea Scallop Area Access Program as described in § 648.60 are prohibited from fishing for or landing per trip, or possessing at any time, scallops in excess of any sea scallop possession and landing limit set by the Regional Administrator in accordance with § 648.60(a)(5).

(e)Owners or operators of vessels issued limited access permits fishing in or transiting the area south of 42 20'N. Lat. at any time during a trip are prohibited from fishing for, possessing, or landing per trip more than 50 bu (17.62 hl) of in-shell scallops shoreward of the VMS Demarcation Line, unless when fishing under the state waters exemption specified under § 648.54.

(f)A vessel that is declared into the Elephant Trunk Access Area Sea Scallop Area Access Program as described in § 648.60, may not possess more than 50 bu (17.62 hL) of in-shell scallops outside of the Elephant Trunk Access Area described in § 648.59(e). 10. Section 648.53 is revised to read as follows: § 648.53 Total allowable catch, DAS allocations, and Individual Fishing Quotas.

(a)*Total allowable catch* . The annual target total allowable catch for the scallop fishery shall be established through the framework adjustment process specified in § 648.55. The annual target total allowable catch shall include the total allowable catch for all scallop vessels fishing in open areas and access areas, but shall exclude the total allowable catch established for the Northern Gulf of Maine Scallop Management Area as specified in § 648.62. After deducting the total estimated incidental catch of scallops by vessels issued incidental catch general category scallop permits, and limited access and limited access general category scallop vessels not declared into the scallop fishery, the annual target total allowable catch for open and access areas shall each be divided between limited access vessels, limited access vessels that are fishing under a limited access general category permit, and limited access general category vessels as specified in paragraphs (a)(1) through (a)(4) of this section.

(1)Access area total allowable catch. The TAC for each access area specified in § 648.59 shall be determined through the framework adjustment process described in § 648.55 and shall be specified in § 648.59 for each access area. The TAC set-asides for observer coverage and research shall be deducted from the TAC in each Access Area prior to assigning the target total allowable catch and trip allocations for limited access scallop vessels, and prior to allocating TAC to limited access general category vessels. The percentage of the TAC for each Access Area allocated to limited access vessels, limited access general category vessels, and limited access vessels fishing under limited access general category permits shall be specified in accordance with § 648.60 through the framework adjustment process specified in § 648.55.

(2)*Open area TAC for limited access vessels* . For the 2008 fishing year, the target total allowable catch for limited access vessels fishing under the scallop DAS program specified in this section shall be equal to 90 percent of the target total allowable catch specified in accordance with paragraph

(a)of this section, minus the total allowable catch for all access areas specified in accordance with paragraph (b)(5) of this section. Beginning March 1, 2009, unless the implementation of the IFQ program is delayed beyond March 1, 2009, as specified in paragraph (a)(5) of this section, the target total allowable catch for limited access vessels fishing under the scallop DAS program specified in this section shall be equal to 94.5 percent of the target total allowable catch specified in accordance with paragraph

(a)of this section, minus the total allowable catch for all access areas specified in accordance with paragraph (b)(5) of this section. The target total allowable catch for limited access vessels fishing under the DAS program shall be used to determine the DAS allocation for full-time, part-time, and occasional scallop vessels will receive after deducting the DAS set-asides for observer coverage and research.

(3)*Open area TAC for IFQ scallop vessels* —(i) *2008 fishing year, and beyond if necessary* . IFQ scallop vessels, and limited access scallop vessels that are fishing under an IFQ scallop permit outside of the scallop DAS and Area Access programs shall be allocated 10 percent of the annual target total allowable catch specified in accordance with paragraph

(a)of this section, minus the total allowable catch for all access areas specified in accordance with paragraph (b)(5) of this section.

(ii)*2009 fishing year and beyond for IFQ scallop vessels without a limited access scallop permit* . The total allowable catch for IFQ scallop vessels without a limited access scallop permit shall be equal to 5 percent of the target total allowable catch specified in accordance with paragraph

(a)of this section, minus the total allowable catch for all access areas specified in accordance with paragraph (b)(5) of this section. If the IFQ program implementation is delayed beyond March 1, 2009, as specified in paragraph (a)(5) of this section, the quarterly fleetwide total allowable catch

(TAC)specified in paragraph (a)(6) of this section would remain in effect until March 1, 2010, or beyond if necessary.

(iii)*2009 fishing year and beyond for IFQ scallop vessels with a limited access scallop permit* . Limited access scallop vessels that are fishing under an IFQ scallop permit outside of the scallop DAS and Area Access programs shall be allocated 0.5 percent of the annual target total allowable catch specified in accordance with paragraph

(4)*Northern Gulf of Maine Scallop Fishery* . The total allowable catch for the Northern Gulf of Maine Scallop Fishery shall be specified in accordance with § 648.62, through the framework adjustment process specified in § 648.55.

(5)*Delay of the IFQ program* . If the IFQ program implementation is delayed beyond March 1, 2009, as specified in paragraph (a)(5) of this section, the quarterly fleetwide TAC specified in paragraph (a)(6) of this section would remain in effect until March 1, 2010, or a subsequent date, if necessary. The Regional Administrator shall proved notice to all scallop permit holders if the IFQ program is delayed beyond March 1, 2009. If the Regional Administrator determines that the IFQ program cannot be implemented on March 1, 2009, NMFS shall inform all scallop vessel owners that the IFQ program shall not take effect on March 1, 2009, and that the quarterly TACs specified in paragraph (a)(6) of this section shall remain in effect until March 1, 2010. The Regional Administrator shall inform LAGC scallop vessel owners of a decision to delay the IFQ program no later than January 1, 2009, 2010, or subsequent year, if necessary.

(6)*Distribution of transition period total allowable catch* —(i) *Allocation* . For the 2008 fishing year, and subsequent fishing years until IFQs are implemented as specified in paragraph

(j)of this section, the total allowable catch for IFQ scallop vessels shall be allocated as specified in paragraphs (a)(1) through

(4)of this section into quarterly periods. The percentage allocation for each period allocated to the IFQ scallop vessels, including limited access vessels fishing under an IFQ scallop permit and vessels under appeal for a IFQ scallop permit pursuant to § 648.4(a)(2)(ii) shall be specified in the framework adjustment process as specified in § 648.55 and are specified in the following table: Quarter Percent TAC I. March-May To Be Determined To Be Determined II. June-August To Be Determined To Be Determined III. September-November To Be Determined To Be Determined IV. December-February To Be Determined To Be Determined

(ii)*Deductions of landings* . All landings by IFQ scallop vessels and limited access vessels fishing under an IFQ scallop permit shall be deducted from the TAC allocations specified in the table in paragraph (a)(6)(i) of this section.

(b)*DAS allocations* .

(1)Total DAS to be used in all areas other than those specified in § 648.59, shall be specified through the framework adjustment process as specified in § 648.55, using the target total allowable catch for open areas specified in paragraph

(a)of this section, and estimated catch per unit effort.

(2)Prior to setting the DAS allocations specified in paragraph (b)(4) of this section, 1 percent of total available DAS will be set aside to help defray the cost of observers, as specified in paragraph (h)(1) of this section. Two percent of total available DAS will be set aside to pay for scallop related research, as outlined in paragraph (h)(2) of this section.

(3)*Assignment to DAS categories* . Subject to the vessel permit application requirements specified in § 648.4, for each fishing year, each vessel issued a limited access scallop permit shall be assigned to the DAS category (full-time, part-time, or occasional) it was assigned to in the preceding year, except as provided under the small dredge program specified in § 648.51(e).

(4)Each vessel qualifying for one of the three DAS categories specified in the table in this paragraph (b)(2) (Full-time, Part-time, or Occasional) shall be allocated the maximum number of DAS for each fishing year it may participate in the open area limited access scallop fishery, according to its category. A vessel whose owner/operator has properly declared out of the scallop DAS fishery, pursuant to the provisions of § 648.10, including vessels that have used up their maximum allocated DAS, may leave port without being assessed a DAS, as long as it has made appropriate VMS declaration as specified in § 648.10(b)(4), possesses, fishes for, or retains the amount of scallops allowed by its general category permit, does not possess, fish for, or retain any scallops if the vessel does not have a general category scallop permit, and complies with all other requirements of this part. The annual open area DAS allocations for each category of vessel for the fishing years indicated, after deducting DAS for observer and research DAS set-asides, are as follows: DAS category 2007 2008 Full-time 51 To Be Determined Part-time 20 To Be Determined Occasional 4 To Be Determined

(5)*Additional open area DAS* . If a TAC for yellowtail flounder specified in § 648.85(c) is harvested for an Access Area specified in § 648.59(b) through (d), a scallop vessel with remaining trips in the affected Access Area shall be allocated additional open area DAS according to the calculations specified in paragraphs (b)(5)(i) through

(iii)of this section.

(i)For each remaining complete trip in Closed Area I, a vessel may fish an additional 5.5 DAS in open areas during the same fishing year. A complete trip is deemed to be a trip that is not subject to a reduced possession limit under the broken trip provision in § 648.60(c). For example, a full-time scallop vessel with two complete trips remaining in Closed Area I would be allocated 11 additional open area DAS (2 5.5 = 11 DAS) if the TAC for yellowtail flounder allocated to the scallop fishery for Closed Area I is harvested in that area. Vessels allocated compensation trips as specified in § 648.60(c) that cannot be made because the yellowtail TAC in Closed Area I allocated to the scallop fishery is harvested shall be allocated 0.458 additional DAS for each unused DAS in Closed Area I. Unused DAS shall be calculated by dividing the compensation trip possession limit by 1,500 lb (680 kg), (the catch rate per DAS). For example, a vessel with a 10,000-lb (4,536-kg) compensation trip remaining in Closed Area I would be allocated 3.05 additional open area DAS in that same fishing year (0.458 times 10,000 lb (4,536 kg)/1,500 lb (680 kg) per day).

(ii)For each remaining complete trip in Closed Area II, a vessel may fish an additional 5.4 DAS in open areas during the same fishing year. A complete trip is deemed to be a trip that is not subject to a reduced possession limit under the broken trip provision in § 648.60(c). For example, a full-time scallop vessel with two complete trips remaining in Closed Area II would be allocated 10.8 additional open area DAS (2 5.4 = 10.8 DAS) if the TAC for yellowtail flounder allocated to the scallop fishery in Closed Area II is harvested in that area. Vessels allocated compensation trips as specified in § 648.60(c) that cannot be made because the yellowtail TAC in Closed Area II allocated to the scallop fishery is harvested shall be allocated 0.450 additional DAS for each unused DAS in Closed Area II. Unused DAS shall be calculated by dividing the compensation trip possession limit by 1,500 lb (680 kg) (the catch rate per DAS). For example, a vessel with a 10,000-lb (4,536-kg) compensation trip remaining in Closed Area II would be allocated 3 additional open area DAS in that same fishing year (0.450 times 10,000 lb (4,536 kg)/1,500 lb (680 kg) per day).

(iii)For each remaining complete trip in the Nantucket Lightship Access Area, a vessel may fish an additional 4.9 DAS in open areas during the same fishing year. A complete trip is deemed to be a trip that is not subject to a reduced possession limit under the broken trip provision in § 648.60(c). For example, a full-time scallop vessel with two complete trips remaining in Nantucket Lightship Access Area would be allocated 9.8 additional open area DAS (2 4.9 = 9.8 DAS) if the TAC for yellowtail flounder allocated to the scallop fishery in the Nantucket Lightship Access Area is harvested in that area. Vessels allocated compensation trips as specified in § 648.60(c) that cannot be made because the yellowtail TAC in Nantucket Lightship Access Area allocated to the scallop fishery is harvested shall be allocated 0.408 additional DAS for each unused DAS in the Nantucket Lightship Access Area. Unused DAS shall be calculated by dividing the compensation trip possession limit by 1,500 lb (680 kg) (the catch rate per DAS). For example, a vessel with a 10,000-lb (4,536-kg) compensation trip remaining in Nantucket Lightship Access Area would be allocated 2.7 additional open area DAS in that same fishing year (0.408 times 10,000 lb (4,536 kg)/1,500 lb (680 kg) per day).

(6)DAS allocations and other management measures are specified for each scallop fishing year, which begins on March 1 and ends on February 28 (or February 29), unless otherwise noted. For example, the 2006 fishing year refers to the period March 1, 2006, through February 28, 2007.

(c)*Adjustments in annual DAS allocations* . Annual DAS allocations shall be established for 2 fishing years through biennial framework adjustments as specified in § 648.55. If a biennial framework action is not undertaken by the Council and implemented by NMFS, the DAS allocations and Access Area trip allocations from the most recent fishing year shall remain in effect for the next fishing year. The Council may also recommend adjustments to DAS allocations through a framework action at any time.

(d)*End-of-year carry-over for open area DAS* . With the exception of vessels that held a Confirmation of Permit History as described in § 648.4(a)(1)(i)(J) for the entire fishing year preceding the carry-over year, limited access vessels that have unused Open Area DAS on the last day of February of any year may carry over a maximum of 10 DAS, not to exceed the total Open Area DAS allocation by permit category, into the next year. DAS carried over into the next fishing year may only be used in Open Areas. DAS sanctioned vessels will be credited with unused DAS based on their unused DAS allocation, minus total DAS sanctioned.

(e)*Accrual of DAS* . All DAS fished shall be charged to the nearest minute. A vessel carrying an observer and authorized to be charged fewer DAS in Open Areas based on the total available DAS set aside under paragraph (g)(1) of this section, shall be charged at a reduced rate as specified in paragraph (g)(1) of this section.

(f)*Good Samaritan credit* . Limited access vessels fishing under the DAS program and that spend time at sea assisting in a USCG search and rescue operation or assisting the USCG in towing a disabled vessel, and that can document the occurrence through the USCG, will not accrue DAS for the time documented.

(g)*DAS set-asides* —(1) *DAS set-aside for observer coverage* . As specified in paragraph (b)(2) of this section, to help defray the cost of carrying an observer, 1 percent of the total DAS shall be set aside from the total DAS available for allocation, to be used by vessels that are assigned to take an at-sea observer on a trip other than an Area Access Program trip. The DAS set-aside for observer coverage for the 2007 fishing year is 165 DAS. Vessels carrying an observer shall be compensated with reduced DAS accrual rates for each trip on which the vessel carries an observer. For each DAS that a vessel fishes for scallops with an observer on board, the DAS shall be charged at a reduced rate based on an adjustment factor determined by the Regional Administrator on an annual basis, dependent on the cost of observers, catch rates, and amount of available DAS set-aside. The Regional Administrator shall notify vessel owners of the cost of observers and the DAS adjustment factor through a permit holder letter issued prior to the start of each fishing year. The number of DAS that are deducted from each trip based on the adjustment factor shall be deducted from the observer DAS set-aside amount in the applicable fishing year. Utilization of the DAS set-aside shall be on a first-come, first-served basis. When the DAS set-aside for observer coverage has been utilized, vessel owners shall be notified that no additional DAS remain available to offset the cost of carrying observers. The obligation to carry and pay for an observer shall not be waived due to the absence of set-aside DAS allocations.

(2)*DAS set-aside for research* . As specified in paragraph (b)(2) of this section, to help support the activities of vessels participating in certain research, as specified in § 648.56; the DAS set-aside for research for the 2007 fishing year is 330 DAS. Vessels participating in approved research shall be authorized to use additional DAS in the applicable fishing year. Notification of allocated additional DAS shall be provided through a letter of authorization, or Exempted Fishing Permit issued by NMFS, or shall be added to a participating vessel's open area DAS allocation, as appropriate.

(h)*Annual Individual fishing quotas* —(1) *IFQ restriction* . For each fishing year of the IFQ program, a vessel issued an IFQ scallop permit may only harvest and land the total amount of scallop meats allocated in accordance with this subpart. Unless otherwise specified in this part, A vessel allocated scallop IFQ may not exceed the possession limits specified in § 648.52 on any trip.

(2)*Calculation of IFQ* . The total allowable catch allocated to IFQ scallop vessels, and the total allowable catch allocated to limited access scallop vessels issued IFQ scallop permits, as specified in paragraphs (a)(3)(ii) and

(iii)of this section, shall be used to determine the IFQ of each vessel issued an IFQ scallop permit. Each fishing year, the Regional Administrator shall provide the owner of a vessel issued an IFQ scallop permit issued pursuant to § 648.4(a)(2)(ii) with the scallop IFQ for the vessel for the upcoming fishing year.

(i)*Individual fishing quota* . The IFQ for an IFQ scallop vessel shall be the vessel's contribution percentage as specified in paragraph (h)(2)(iii) of this section and determined using the steps specified in paragraphs (h)(2)(ii) of this section, multiplied by the TAC allocated to the IFQ scallop fishery, or limited access vessels issued an IFQ scallop permit, as specified in paragraphs (a)(3)(ii) and

(iii)of this section.

(ii)*Contribution factor* . An IFQ scallop vessel's contribution factor is calculated using the best year, years active, and index factor as specified in paragraphs (h)(1)(ii)(A) through

(C)of this section. A vessel's contribution factor shall be provided to the owner of a qualified limited access general category vessel following initial application for an IFQ scallop permit as specified in § 648.4(a)(2)(ii)(E).

(A)*Best year determination* . An eligible IFQ scallop vessel's highest scallop landings in any scallop fishing year that the vessel was issued a general category scallop permit between March 1, 2000, and November 1, 2004, shall be determined using NMFS dealer reports. If a dealer reported more than 400 lb (181.44 kg) of scallops landed on a trip, only 400 lb (181.44 kg) will be credited for that trip toward the best year calculation. For dealer reports that indicate clearly that the landings were bushels of in-shell scallops, a conversion of 8.33 lb (3.78 kg) of scallop meats per bushel shall be used to calculate meat-weight, up to a maximum of 400 lb (181.44 kg) per trip.

(B)*Years active* . For each eligible IFQ scallop vessel, the total number of scallop fishing years during the period March 1, 2000, through November 1, 2004, in which the vessel had a general category scallop permit and landed at least 1 lb (0.45 kg) of scallop meats, or in-shell scallops, shall be counted as active years based on NMFS dealer reports.

(C)*Index to determine contribution factor* . For each eligible IFQ scallop vessel, the best year as determined pursuant to paragraph (a)(2)(ii)(E)(1) of this section shall be multiplied by the appropriate index factor specified in the following table, based on years active as specified in paragraph (a)(2)(ii)(E)(2) of this section. The resulting contribution factor shall determine its IFQ for each fishing year based on the allocation to general category scallop vessels as specified in § 648.53(a)(2) and the method of calculating the IFQ provided in § 648.53(j). Years Active Index Factor 1 0.75 2 0.875 3 1.0 4 1.125 5 1.25

(D)*Contribution factor example* . If a vessel landed 48,550 lb (22,022 kg) of scallops in its best year, and was active in the general category scallop fishery for 5 years, the vessel's contribution factor is equal to 60,687 lb (27,527 kg) (48,550 lb (22,022 kg * 1.25).

(iii)*Contribution percentage* . A vessel's contribution percentage will be determined by dividing its contribution factor by the sum of the contribution factors of all vessels issued an IFQ scallop permit. The sum of the contribution factors shall be determined when all IFQ scallop vessels are identified. Continuing the example in paragraph (h)(1)(ii)(D) of this section, the sum of the contribution factors for 380 IFQ scallop vessels is estimated for the purpose of this example to be 4.18 million lb (1,896 mt). The contribution percentage of the above vessel is 1.45 percent (60,687 lb (27,527 kg) /4.18 million lb (1,896 mt) = 1.45 percent).

(iv)*Vessel IFQ Example* . Continuing the example in paragraphs (h)(1)(ii)(D) and (h)(1)(iii) of this section, with a TAC allocated to IFQ scallop vessels estimated for this example to be equal to 2.5 million lb (1,134 mt), the vessel's IFQ would be 36,250 lb (16,443 kg) (1.45 percent * 2.5 million lb (1,134 mt).

(3)*IFQ ownership restrictions* —(i) *IFQ scallop vessel IFQ cap* . A vessel issued an IFQ scallop permit or confirmation of permit history shall not be issued more than 2 percent of the TAC allocated to the IFQ scallop vessels as described in paragraphs (a)(3)(ii) and

(iii)of this section.

(ii)*IFQ ownership cap* . An owner of more than one IFQ scallop vessel may not have an aggregate ownership interest in more than 5 percent of the TAC allocated to all IFQ scallop vessels and may not be issued an IFQ scallop permit for a vessel that would result in the individual owning more than 5 percent of the TAC allocated to IFQ scallop vessels. A confirmation of permit history shall be counted toward an individual's ownership. Vessel owners that were initially issued an IFQ scallop permit or were issued or renewed an IFQ scallop permit for a vessel in any fishing year following the 2008 fishing year, in compliance with this 5 percent ownership restriction, is eligible to renew the IFQ scallop permit for his or her vessel regardless of whether the renewal of the permit(s) will result in the 5-percent IFQ ownership cap being exceeded.

(iii)*Limited access scallop vessels that have been issued an IFQ scallop permit* . The IFQ scallop vessel IFQ cap and IFQ ownership cap specified in this paragraph (h)(3) do not apply to limited access scallop vessels that are also issued a limited access general category scallop permit because such vessels are already subject to an ownership limitation, as specified in § 648.4(a)(2)(i)(M).

(4)*IFQ cost recovery* . The owner of a vessel issued an IFQ scallop permit and subject to the IFQ program specified in paragraph

(h)of this section must pay a portion of the proceeds from scallop fishing to NMFS to help NMFS recover up to 3 percent of the cost of administering and enforcing the IFQ program. The specific cost recovery provisions shall be specified in the first framework implementing the specifications for the IFQ program, including the overall total allowable catch and eligible vessels' IFQs. Payment of cost recovery funds shall be through electronic means unless otherwise notified by the Regional Administrator.

(5)*Transferring IFQ* —(i) *Temporary IFQ transfers* . Unless otherwise restricted in paragraph (h)(5)(iii) of this section, the owner of an IFQ scallop vessel may temporarily transfer one or more entire IFQ from another IFQ scallop vessel. Temporary IFQ transfers shall be effective only for the fishing year in which the temporary transfer is requested and processed. The Regional Administrator has final approval authority for all temporary IFQ transfer requests.

(ii)*Permanent IFQ transfers* . Unless otherwise restricted in paragraph (h)(5)(iii) of this section, the owner of an IFQ scallop vessel may transfer one or more entire IFQ indefinitely from another IFQ scallop vessel. The Regional Administrator has final approval authority for all IFQ transfer requests.

(iii)*IFQ transfer restrictions* . The owner of an IFQ scallop vessel may transfer entire IFQ allocations only. The owner of an IFQ scallop vessel that has fished under its IFQ may not transfer that vessel's IFQ to another IFQ scallop vessel. A transfer of an IFQ may not result in the sum of the IFQs on the receiving vessel exceeding 2 percent of the total allowable catch allocated to IFQ scallop vessels. Limited access scallop vessels that are also issued an IFQ scallop permit may not transfer or receive IFQ from another IFQ scallop vessel. A vessel permanently transferring its IFQ to another vessel must transfer all of its Federal limited access permits for which it is eligible to the transferee vessel in accordance with the vessel replacement restrictions under § 648.4, or permanently cancel such permits.

(iv)*Application for an IFQ transfer* . The owner of vessels applying for a transfer IFQ must submit a completed application form obtained from the Regional Administrator. The application must be signed by both parties (transferor and transferee) involved in the transfer of the IFQ, and must be submitted to the NMFS Northeast Regional Office at least 30 days before the date on which the applicants desire to have the IFQ effective on the receiving vessel. The Regional Administrator shall notify the applicants of any deficiency in the application pursuant to this section. Applications may be submitted at any time during the scallop fishing year, provided the vessel transferring the IFQ to another vessel has not utilized any of its own IFQ. Applications for temporary transfers received 45 days prior to the end of the fishing year may not be processed in time for a vessel to utilize the transferred IFQ prior to the expiration of the fishing year for which the IFQ transfer, if approved, would be effective.

(A)*Application information requirements* . An application to transfer IFQ must contain at least the following information: Transferor's name, vessel name, permit number, and official number or state registration number; transferee's name, vessel name, permit number and official number or state registration number; total price paid for purchased IFQ; signatures of transferor and transferee; and date the form was completed. Information obtained from the transfer application will be held confidential, and will be used only in summarized form for management of the fishery. If applicable, an application for a permanent IFQ transfer must be accompanied by verification, in writing, that the transferor either has requested cancellation of all limited access Federal fishing permits, or has applied for a transfer of all of its limited access permits in accordance with the vessel replacement restrictions under § 648.4.

(B)*Approval of IFQ transfer applications* . Unless an application to transfer IFQ is denied according to paragraph (h)(5)(iii)(C) of this section, the Regional Administrator shall issue confirmation of application approval to both parties involved in the transfer within 45 days of receipt of an application.

(C)*Denial of lease or transfer application* . The Regional Administrator may reject an application to transfer IFQ for the following reasons: The application is incomplete; the transferor or transferee does not possess a valid limited access general category permit; the transferor's or transferee's vessel or IFQ scallop permit has been sanctioned, pursuant to an enforcement proceeding; the transferor's or transferee's vessel is prohibited from fishing; the transfer will result in the transferee's vessel having an allocation that exceeds 2 percent of the total allowable catch allocated to IFQ scallop vessels; the transfer will result in the transferee having ownership of general category scallop allocation that exceeds 5 percent of the total allowable catch allocated to IFQ scallop vessels; or any other failure to meet the requirements of this subpart. Upon denial of an application to transfer IFQ, the Regional Administrator shall send a letter to the applicants describing the reason(s) for the rejection. The decision by the Regional Administrator is the final agency decision and there is no opportunity to appeal the Regional Administrator's decision. 11. In § 648.54, paragraphs (b), (c)(3) and

(f)are revised to read as follows: § 648.54 State waters exemption.

(b)LAGC scallop vessel gear and possession limit restrictions. Any vessel issued an LAGC scallop permit is exempt from the gear restrictions specified in § 648.51(a), (b), (e)(1), and (e)(2), and the applicable possession limits specified in § 648.52, while fishing exclusively landward of the outer boundary of the waters of a state that has been issued a state waters exemption, provided the vessel complies with paragraphs

(d)through

(g)of this section.

(c)* * *

(3)Prior to Amendment 11 to the FMP, which became effective [ *date 30 days from publication of the Final Rule in the Federal Register* ], Maine, New Hampshire, and Massachusetts were determined by the Regional Administrator to have scallop fisheries and scallop conservation programs that do not jeopardize the biomass and fishing mortality/effort limit objectives of the FMP. States must resubmit information describing their scallop fishery conservation programs so that the Regional Administrator can determine if such states continue to have scallop fisheries and scallop conservation programs that do not jeopardize the biomass and fishing mortality/effort limit objectives of the FMP. In addition, these states must immediately notify the Regional Administrator of any changes in their respective scallop conservation program. The Regional Administrator shall review these changes and, if a determination is made that the state's conservation program jeopardizes the biomass and fishing mortality/effort limit objectives of the FMP, or that the state no longer has a scallop fishery, the Regional Administrator shall publish a rule in the **Federal Register** , in accordance with the Administrative Procedure Act, amending this paragraph (c)(3) to eliminate the exemption for that state. The Regional Administrator may determine that other states have scallop fisheries and scallop conservation programs that do not jeopardize the biomass and fishing mortality/effort limit objectives of the FMP. In such case, the Regional Administrator shall publish a rule in the **Federal Register** , in accordance with the Administrative Procedure Act, amending this paragraph (c)(3) to provide the exemption for such states.

(f)*Duration of exemption* . An exemption expires upon a change in the vessel's name or ownership, or upon notification through VMS by the participating vessel's owner. 12. In § 648.55, paragraphs

(a)and

(e)are revised to read as follows: § 648.55 Framework adjustments to management measures.

(a)Biennially, or upon a request from the Council, the Regional Administrator shall provide the Council with information on the status of the scallop resource. Within 60 days of receipt of that information, the Council PDT shall assess the condition of the scallop resource to determine the adequacy of the management measures to achieve the stock-rebuilding objectives. Based on this information, the PDT shall prepare a Stock Assessment and Fishery Evaluation

(SAFE)Report that provides the information and analysis needed to evaluate potential management adjustments. Based on this information and analysis, the Council shall initiate a framework adjustment to establish or revise total allowable catch, DAS allocations, rotational area management programs, percentage allocations for limited access general category vessels in Sea Scallop Access Areas, scallop possession limits, or other measures to achieve FMP objectives and limit fishing mortality. The Council's development of an area rotation program shall take into account at least the following factors: General rotation policy; boundaries and distribution of rotational closures; number of closures; minimum closure size; maximum closure extent; enforceability of rotational closed and re-opened areas; monitoring through resource surveys; and re-opening criteria. Rotational Closures should be considered where projected annual change in scallop biomass is greater than 30 percent. Areas should be considered for Sea Scallop Access Areas where the projected annual change in scallop biomass is less than 15 percent.

(e)After considering the PDT's findings and recommendations, or at any other time, if the Council determines that adjustments to, or additional management measures are necessary, it shall develop and analyze appropriate management actions over the span of at least two Council meetings. To address interactions between the scallop fishery and sea turtles and other protected species, such adjustments may include proactive measures including, but not limited to, the timing of Sea Scallop Access Area openings, seasonal closures, gear modifications, increased observer coverage, and additional research. The Council shall provide the public with advance notice of the availability of both the proposals and the analyses, and opportunity to comment on them prior to and at the second Council meeting. The Council's recommendation on adjustments or additions to management measures must include measures to prevent over fishing of the available biomass of scallops and ensure that OY is achieved on a continuing basis, and must come from one or more of the following categories:

(1)Total allowable catch and DAS changes;

(2)Shell height;

(3)Offloading window reinstatement;

(4)Effort monitoring;

(5)Data reporting;

(6)Trip limits;

(7)Gear restrictions;

(8)Permitting restrictions;

(9)Crew limits;

(10)Small mesh line;

(11)Onboard observers;

(12)Modifications to the overfishing definition;

(13)VMS Demarcation Line for DAS monitoring;

(14)DAS allocations by gear type;

(15)Temporary leasing of scallop DAS requiring full public hearings;

(16)Scallop size restrictions, except a minimum size or weight of individual scallop meats in the catch;

(17)Aquaculture enhancement measures and closures;

(18)Closed areas to increase the size of scallops caught;

(19)Modifications to the opening dates of closed areas;

(20)Size and configuration of rotation management areas;

(21)Controlled access seasons to minimize bycatch and maximize yield;

(22)Area-specific trip allocations;

(23)TAC specifications and seasons following re-opening;

(24)Limits on number of area closures;

(25)TAC or DAS set-asides for funding research;

(26)Priorities for scallop-related research that is funded by a TAC or DAS set-aside;

(27)Finfish TACs for controlled access areas;

(28)Finfish possession limits;

(29)Sea sampling frequency;

(30)Area-specific gear limits and specifications;

(31)Modifications to provisions associated with observer set-asides; observer coverage; observer deployment; observer service provider; and/or the observer certification regulations;

(32)Specifications for IFQs for limited access general category vessels;

(33)Revisions to the cost recovery program for IFQs;

(34)Development of general category fishing industry sectors and fishing cooperatives;

(35)Adjustments to the Northern Gulf of Maine scallop fishery measures;

(36)VMS requirements; and

(37)Any other management measures currently included in the FMP. 13. Section 648.57 is revised to read as follows: § 648.57 Sea scallop area rotation program. An area rotation program is established for the scallop fishery, which may include areas closed to scallop fishing defined in § 648.58, and/or Sea Scallop Access Areas defined in § 648.59, subject to the Sea Scallop Area Access program requirements specified in § 648.60. Areas not defined as Rotational Closed Areas, Sea Scallop Access Areas, EFH Closed Areas, or areas closed to scallop fishing under other FMPs, are open to scallop fishing as governed by the other management measures and restrictions in this part. The Council's development of area rotation programs is subject to the framework adjustment process specified in § 648.55, including the Area Rotation Program factors included in § 648.55(a). The percentage of the total allowable catch for each Sea Scallop Access Area that is allocated to limited access scallop vessels and limited access general category scallop vessels shall be specified in § 648.59 through the framework adjustment process specified in § 648.55. 14. In § 648.59, paragraphs (b)(5)(ii), (c)(5)(ii), (d)(5)(ii), and (e)(6)(ii) are revised to read as follows: § 648.59 Sea Scallop Access Areas.

(b)* * *

(5)* * *

(ii)*LAGC scallop vessels* .

(A)The percentage of the Closed Area I total allowable catch allocated to LAGC scallop vessels shall be specified in this paragraph (b)(5)(ii) through the framework adjustment process. The resulting total allowable catch allocated to LAGC scallop vessels shall be specified in this paragraph (b)(5)(ii) and shall determine the number of trips specified in paragraph (b)(5)(ii)(B) of this section.

(B)Except as provided in paragraph (b)(5)(ii)(C) of this section, subject to the possession limit specified in §§ 648.52(a) and (b), and 648.60(g), and subject to the seasonal restrictions specified in paragraph (b)(4) of this section, an LAGC scallop vessel may not enter in, or fish for, possess, or land sea scallops in or from the Closed Area I Access Area once the Regional Administrator has provided notification in the **Federal Register** , in accordance with § 648.60(g)(4), the date on which 216 trips are projected to be taken, in total, by all LAGC scallop vessels, unless transiting pursuant to paragraph

(f)of this section. The Regional Administrator shall notify all LAGC scallop vessels of the date when the maximum number of allowed trips have been, or are projected to be, taken for the 2007 fishing year.

(C)A vessel issued a NE Multispecies permit and a LAGC scallop permit that is fishing in an approved SAP under § 648.85 under multispecies DAS may fish in the Scallop Access Areas without being subject to the restrictions of paragraph (b)(5)(ii)(A) of this section, provided that it has not enrolled in the Scallop Area Access program. Such vessel is prohibited from fishing for, possessing, or landing scallops.

(c)* * *

(5)* * *

(ii)*LAGC scallop vessels* —(A) The percentage of the Closed Area II total allowable catch allocated to LAGC scallop vessels shall be specified in this paragraph (c)(5)(ii) through the framework adjustment process. The resulting total allowable catch allocated to LAGC scallop vessels shall be specified in this paragraph (c)(5)(ii) and shall determine the number of trips specified in paragraph (c)(5)(ii)(B) of this section.

(B)Except as provided in paragraph (c)(5)(ii)(C) of this section, subject to the possession limits specified in §§ 648.52(a) and (b), and 648.60(g), and subject to the seasonal restrictions specified in paragraph (c)(4) of this section, an LAGC scallop vessel may not enter in, or fish for, possess, or land sea scallops in or from the Closed Area II Access Area once the Regional Administrator has provided notification in the **Federal Register** , in accordance with § 648.60(g)(4), of the date on which the total number of trips is projected to be taken, in total, by all LAGC scallop vessels, unless transiting pursuant to paragraph

(f)of this section. The Regional Administrator shall notify all LAGC scallop vessels of the date when the maximum number of allowed trips have been, or are projected to be, taken.

(C)A vessel issued a NE Multispecies permit and an LAGC scallop permit that is fishing in an approved SAP under § 648.85 under multispecies DAS may fish in the Scallop Access Areas without being subject to the restrictions of paragraph (c)(5)(ii)(A) of this section provided that it has not enrolled in the Scallop Area Access program. Such vessel is prohibited from fishing for, possessing, or landing scallops.

(d)* * *

(5)* * *

(ii)*LAGC scallop vessels* .

(A)The percentage of the Nantucket Lightship Access Area total allowable catch allocated to LAGC scallop vessels shall be specified in this paragraph (d)(5)(ii) through the framework adjustment process. The resulting total allowable catch allocated to LAGC scallop vessels shall be specified in this paragraph (d)(5)(ii) and shall determine the number of trips specified in paragraph (d)(5)(ii)(B) of this section.

(B)Except as provided in paragraph (d)(5)(ii)(C) of this section, subject to the possession limits specified in §§ 648.52(a) and (b), and 648.60(g), an LAGC scallop vessel may not enter in, or fish for, possess, or land sea scallops in or from the Nantucket Lightship Access Area once the Regional Administrator has provided notification in the **Federal Register** , in accordance with § 648.60(g)(4), of the date on which 394 trips are projected to be taken, in total, by all LAGC scallop vessels, unless transiting pursuant to paragraph

(C)A vessel issued a NE Multispecies permit and an LAGC scallop permit that is fishing in an approved SAP under § 648.85 under multispecies DAS may fish in the Scallop Access Areas without being subject to the restrictions of paragraph (d)(5)(ii)(A) of this section provided that it has not enrolled in the Scallop Area Access program. Such vessel is prohibited from fishing for, possessing, or landing scallops.

(e)* * *

(6)* * *

(ii)*LAGC scallop vessels* .

(A)The percentage of the Elephant Trunk Access Area total allowable catch allocated to LAGC scallop vessels shall be specified in this paragraph (e)(6)(ii) through the framework adjustment process. The resulting total allowable catch allocated to limited access general category vessels shall be specified in this paragraph (e)(6)(ii) and shall determine the number of trips specified in paragraph (e)(6)(ii)(B) of this section.

(B)Subject to the possession limits specified in §§ 648.52(a) and (b), and 648.60(g), an LAGC scallop vessel may not enter in, or fish for, possess, or land sea scallops in or from the Elephant Trunk Sea Scallop Access Area once the Regional Administrator has provided notification in the **Federal Register** , in accordance with ' 648.60(g)(4), of the date on which 865 trips allocated March 1, 2007, are projected to be taken, in total, by all LAGC scallop vessels, unless transiting pursuant to paragraph

(f)of this section. The Regional Administrator shall notify all LAGC scallop vessels of the date when the maximum number of allowed trips have been, or are projected to be, taken. 15. In § 648.60, paragraph

(a)introductory text, paragraphs (g)(1) and (2), and paragraph (g)(3) introductory text are revised to read as follows: § 648.60 Sea scallop area access program requirements.

(a)A limited access scallop vessel may only fish in the Sea Scallop Access Areas specified in § 648.59, subject to the seasonal restrictions specified in § 648.59, when fishing under a scallop DAS, provided the vessel complies with the requirements specified in paragraphs (a)(1) through (a)(9), and

(b)through

(f)of this section. An LAGC scallop vessel may fish in the Sea Scallop Access Areas specified in § 648.59, subject to the seasonal restrictions specified in § 648.59, provided the vessel complies with the requirements specified in paragraph

(g)of this section.

(g)* * *

(1)An LAGC scallop vessel, except a vessel issued a NE Multispecies permit and an LAGC scallop permit that is fishing in an approved SAP under § 648.85 under multispecies DAS that has not enrolled in the LAGC Access Area fishery, may only fish in the Closed Area I, Closed Area II, and Nantucket Lightship Sea Scallop Access Areas specified in § 648.59(b) through (d), subject to the seasonal restrictions specified in § 648.59(b)(4), (c)(4), and (d)(4), and subject to the possession limit specified in § 648.52(a), and provided the vessel complies with the requirements specified in paragraphs (a)(1), (a)(2), (a)(6) through (a)(9), (d), (e), (f), and

(g)of this section, and § 648.85(c)(3)(ii). A vessel issued a NE Multispecies permit and an LAGC scallop permit that is fishing in an approved SAP under § 648.85 under multispecies DAS that has not enrolled in the Sea Scallop Area Access program as specified in paragraph (a)(2) of this section is not subject to the restrictions and requirements specified in § 648.59(b)(5)(ii), (c)(5)(ii), (d)(5)(ii), and this paragraph (g), and may not fish for, possess, or land scallops on such trips.

(2)*Gear restrictions.* An LAGC scallop vessel authorized to fish in the Access Areas specified in § 648.59(b) through

(d)must fish with dredge gear only. The combined dredge width in use by, or in possession on board, LAGC scallop vessels fishing in the Access Areas described in § 648.59(b) through

(d)may not exceed 10.5 ft (3.2 m), measured at the widest point in the bail of the dredge.

(3)*Scallop TAC.* An LAGC scallop vessel authorized to fish in the Access Areas specified in § 648.59(b) through

(e)may land scallops, subject to the possession limit specified in § 648.52(a), unless the Regional Administrator has issued a notice that the scallop TAC specified in § 648.59(b)(5)(ii), (c)(5)(ii), (d)(5)(ii), and (e)(4)(ii) in the Access Area has been or is projected to be harvested. Upon a determination from the Regional Administrator that the scallop TAC for a specified Access Area, as specified in this paragraph (g)(3), has been, or is projected to be harvested, the Regional Administrator shall publish notification of this determination in the **Federal Register** , in accordance with the Administrative Procedure Act. 16. Section 648.62 is added to read as follows: § 648.62 Northern Gulf of Maine

(NGOM)scallop management area.

(a)The NGOM scallop management area is the area north of 42° 20 N. Lat. To fish for or possess scallops in the NGOM scallop management area, a vessel must be issued a scallop permit as specified in § 648.4(a)(2).

(1)If a vessel has been issued a NGOM scallop permit, the vessel is restricted to fishing for or possessing scallops only in the NGOM scallop management area.

(2)Scallop landings by all vessels issued LAGC scallop permits, including IFQ scallop permits, and fishing in the NGOM scallop management area shall be deducted from the NGOM scallop total allowable catch specified in paragraph

(b)of this section. Scallop landings by an IFQ scallop vessels and fishing in the NGOM scallop management area shall be deducted from their respective scallop IFQ. Landings by limited access scallop vessels fishing under the scallop DAS program shall not be deducted from the NGOM total allowable catch specified in paragraph

(b)of this section.

(3)A vessel issued a NGOM or IFQ scallop permit that fishes in the NGOM may fish for, possess, or retain up to 200 lb (90.72 kg) of shucked or 25 bu (8.81 hL) of in-shell scallops, and may possess up to 50 bu (17.62 hL) of in-shell scallops seaward of the VMS Demarcation Line. A vessel issued an incidental catch general category scallop permit that fishes in the NGOM may fish for, possess, or retain only up to 40 lb of shucked or 5 U.S. bu (1.76 hL) of in-shell scallops, and may possess up to 10 bu (3.52 hL) of in-shell scallops seaward of the VMS Demarcation Line.

(b)*Total allowable catch* . The total allowable catch for the NGOM scallop management area shall be specified through the framework adjustment process. The total allowable catch for the NGOM scallop management area shall be based on the Federal portion of the scallop resource in the NGOM. The total allowable catch shall be determined by historical landings until additional information on the NGOM scallop resource is available, for example through an NGOM resource survey and assessment. The total allowable catch and allocations as specified in § 648.53(a) shall not include the total allowable catch for the NGOM scallop management area, and landings from the NGOM scallop management area shall not be counted against the total allowable catch and allocations specified in § 648.53(a).

(1)*NGOM total allowable catch* . To be determined.

(2)Unless a vessel has fished for scallops outside of the NGOM scallop management area and is transiting the area north of 42° 20 N. Lat. with all fishing gear stowed in accordance with § 648.23(b), no vessel issued a scallop permit pursuant to § 648.4(a)(2) may possess, retain, or land scallops in the NGOM scallop management area once the Regional Administrator has provided notification in the **Federal Register** that the NGOM scallop total allowable catch in accordance with this paragraph

(b)has been reached. A vessel that has not been issued a Federal scallop permit that fishes exclusively in state waters is not subject to the closure of the NGOM scallop management area.

(c)*VMS requirements* . Except scallop vessels issued a limited access scallop permit pursuant to § 648.4(a)(2)(i) that have declared a trip under the scallop DAS program, a vessel issued a scallop permit pursuant to § 648.4(a)(2) that intend to fish for scallops in the NGOM scallop management area or fishes for, possesses, or lands, scallops in or from the NGOM scallop management area, must declare a NGOM scallop management area trip and report scallop catch through the vessel's VMS unit, as required in § 648.10.

(d)*Gear restrictions.* Except scallop vessels issued a limited access scallop permit pursuant to § 648.4(a)(2)(i) that have properly declared a trip under the scallop DAS program, the combined dredge width in use by, or in possession on board, LAGC scallop vessels fishing in the NGOM scallop management area may not exceed 10.5 ft (3.2 m), measured at the widest point in the bail of the dredge. 17. Section 648.63 is added to read as follows: § 648.63 General category sectors and harvesting cooperatives.

(a)*Procedure for implementing Sector allocation proposals* .

(1)Any person may submit a Sector allocation proposal for a group of LAGC scallop vessels to the Council, at least 1 year in advance of the start of the proposed sector, and request that the Sector be implemented through a framework procedure specified at § 648.55, in accordance with the conditions and restrictions of this section.

(2)Upon receipt of a Sector allocation proposal, the Council must decide whether to initiate such framework. Should a framework adjustment to authorize a Sector allocation proposal be initiated, the Council shall follow the framework adjustment provisions of § 648.55. Any framework adjustment developed to implement a Sector allocation proposal must be in compliance with the general requirements specified in paragraphs

(b)and

(c)of this section. Vessels that do not join a Sector would remain subject to the LAGC scallop vessel regulations for non-Sector vessels specified under this part.

(b)*General requirements applicable to all Sector allocations* . All Sectors approved under the provisions of paragraph

(a)of this section must submit the documents specified under paragraphs (a)(1), and

(c)of this section, and comply with the conditions and restrictions of this paragraph (b).

(1)*Participation* .

(i)Only LAGC scallop vessels are eligible to form Sectors and Sectors may choose which eligible permit holders to include or exclude in the sector, consistent with all applicable law. A Sector may establish additional criteria for determining its membership, provided such criteria are specified in the operations plan and are consistent with all applicable law. Any interested group that meets the eligibility criteria may submit a proposal for a sector. To initiate the process of sector creation, a group (two or more) of permit holders must agree to cooperate and submit a binding plan for management of that sector's allocation of total allowable catch. Vessels that do not choose to participate in a sector will fish under the IFQ program and remain in the non-sector scallop fishery.

(ii)Participation by incidental catch or NGOM scallop vessels in the Sector is subject to approval by the New England Fishery Management Council as part of the action that implements the Sector allocation, provided the details of such participation are specified in the Sector's operations plan. A Sector allocation may be harvested by non-Sector members, provided the Sector operations plan specifies that the Sector may authorize non-Sector vessels to harvest the Sector allocation. In this case, if the Sector is approved, the landings history of the participating non-Sector vessels may not be used in the calculation of future Sector shares and may not be used as scallop catch history for such vessels. The operations plan must specify how such participating non-Sector shall be subject to the rules of the Sector.

(iii)Once a vessel operator and/or vessel owner signs a binding contract to have his/her vessel participate in a Sector, that vessel must remain in the Sector for the remainder of the fishing year.

(iv)Vessels that fish in the LAGC scallop fishery outside the Sector allocation in a given fishing year may not participate in a Sector during that same fishing year, unless the Operations Plan provides an acceptable method for accounting for IFQ used, or catch by the vessel, prior to implementation of the Sector.

(v)Once a vessel operator and/or vessel owner has agreed to participate in a Sector as specified in paragraph (b)(1)(iii) of this section, that vessel must remain in the Sector for the entire fishing year. If a permit is transferred by a Sector participant during the fishing year, the new owner must also comply with the Sector regulations for the remainder of the fishing year.

(vi)Vessels and vessel operators and/or vessel owners removed from a Sector for violation of the Sector rules will not be eligible to fish under the scallop regulations for non-Sector vessels specified under this part either for any period specified in the final decision of penalty or sanction.

(vii)If a pre-existing Sector accepts a new member, the percentage share brought to the Sector is based on that vessel's average qualification landings at the time it joins the Sector (i.e., the vessel is treated as a 'Sector of one' and a share based on the appropriate adjusted TACs is calculated). This new single-vessel-Sector share is added to the existing Sector. If a vessel leaves a Sector, that Sector's share is reduced by the individual vessel share the exiting vessel had when it joined the Sector.

(viii)A vessel may not be a member of more than one Sector. Once a vessel enters into a Sector, it cannot fish during that fishing year under the regulations that apply to the common pool. Additionally, vessels cannot shift from one Sector to another during a single fishing year. Therefore, if a vessel leaves a Sector for any reason, it cannot participate in the general category scallop fishery during the remainder of that fishing year

(2)*Allocation of TAC to Sectors* .

(i)The Sector allocation shall be equal to a percentage share of the TAC allocation for IFQ scallop vessels specified in § 648.53(a), similar to a IFQ scallop vessel's IFQ as specified in § 648.53(h). The Sector's percentage share of the IFQ scallop fishery TAC catch shall not change, but the amount of allocation based on the percentage share will change based on the TAC specified in § 648.53(a).

(ii)*Sector share determination* . When a Sector proposal is submitted, NMFS shall verify the contribution percentage as specified in § 648.53(h)(3) for each vessel listed as a Sector member. The Sector's share shall be the sum of the participating vessels' contribution percentages.

(iii)A Sector shall not be allocated more than 20 percent of the TAC for IFQ vessels specified in § 648.53(a).

(3)Once a Sector's allocation is projected to be harvested, Sector operations will be terminated for the remainder of the fishing year.

(4)If a Sector's allocation is exceeded in a given fishing year, the Sector, each vessel, and vessel operator and/or vessel owner participating in the Sector may be charged jointly and severally for civil penalties and permit sanction pursuant to 15 CFR part 904. If a Sector exceeds its allocation in more than one fishing year, the Sector's authorization to operate may be withdrawn.

(5)A vessel operator and/or vessel owner participating in a Sector is not subject to the limit on the vessel's catch based on the vessel's own IFQ or contribution percentage as defined in § 648.53(h), provided the vessel is participating in the Sector and carries on board a Letter of Authorization to participate in the Sector. The Sector shall determine how the Sector's allocation will be divided between its participating vessels, regardless of whether the catch by a participating vessel exceeds that vessel's own IFQ.

(6)Each vessel operator and/or vessel owner fishing under an approved Sector must comply with all scallop management measures of this part and other applicable law, except the vessel's own IFQ as specified in paragraph (b)(11) of this section. Each vessel and vessel operator and/or vessel owner participating in a Sector must also comply with all applicable requirements and conditions of the Operations Plan specified in paragraph

(c)of this section and the Letter of Authorization issued pursuant to paragraph (b)(11) of this section. It shall be unlawful to violate any such conditions and requirements and each Sector, vessel, and vessel operator and/or vessel owner participating in the Sector may be charged jointly and severally for civil penalties and permit sanctions pursuant to 15 CFR part 904.

(7)Approved Sectors must submit an annual year-end report to NMFS and the Council, within 60 days of the end of the fishing year, that summarizes the fishing activities of its members, including harvest levels of all federally managed species by Sector vessels, enforcement actions, and other relevant information required to evaluate the performance of the Sector.

(8)It shall be the responsibility of each Sector to track its activity and internally enforce any provisions adopted through procedures established in the operations plan and agreed to through the Sector contract. Sector contracts should describe graduated sanctions including grounds for expulsion of Sector member vessels. A Sector is a legal entity, and participating Sector vessels shall be subject to NMFS enforcement action for violations of the regulations pertaining to Sectors and other regulations under 50 CFR part 648. Vessels operating within a Sector are responsible for judgments against the Sector. Sector operations plans shall specify how a Sector will monitor its landings to assure that Sector landings do not exceed the Sector allocation. At the end of the fishing year, NMFS will evaluate landings using VMS, and any other available information to determine whether a Sector has exceeded any of its allocations based on the list of participating vessels submitted in the operations plan. If a Sector exceeds its TAC, the Sector may be subject to enforcement action and may have its authorization as a Sector be withdrawn by the Regional Administrator, after consultation with the New England Fishery Management Council.

(9)Permanent or temporary transfers of allocation between Sectors or between Sector and non-Sector participants is prohibited. For purposes of harvesting a Sector allocation only, vessels under contract to a Sector are assumed to be part of that Sector for the duration of that contract.

(10)The Sector allocation proposal must contain an appropriate analysis that assesses the impact of the proposed Sector, in compliance with the National Environmental Policy Act.

(11)If a Sector is approved as specified in paragraph (d)(3) of this section, the Regional Administrator shall issue a Letter of Authorization to each vessel operator and/or owner for the participating Sector vessel. The Letter of Authorization shall authorize participation in the Sector operations and shall exempt the participating vessel from the requirement that the vessel cannot exceed its own IFQ. The Letter of authorization may include requirements and conditions deemed necessary to ensure effective administration of and compliance with the Sector's operations plan and the Sector's allocation.

(c)*Operations plans* .

(1)A group that wants to form a Sector and receive an allocation must submit a legally binding operations plan to the Council and the Regional Administrator. The operations plan must be agreed upon and signed by all members of the Sector and, if approved, shall constitute a contract.

(2)The operations plan among all of the Sector members must have, at a minimum, the following components:

(A)A list of all participants;

(B)A contract signed by all participants indicating their agreement to abide by the operations plan;

(C)An entity name, address, phone number, and the name and contact information for a Sector representative (a manager or director) that NMFS can contact regarding Sector management issues;

(D)A plan explaining how the Sector will harvest its allocation, including methods to inform NMFS of changes in those arrangements over the year;

(E)The original distribution of catch history of vessels in the Sector (maintaining vessel data confidentiality);

(F)A plan detailing how the Sector will avoid exceeding its allocated TACs, including provisions for monitoring and enforcement of the Sector regulations, and documenting all landings and discards;

(G)Rules for entry to and exit from the Sector, including sanctions and procedures for removing members who do not comply with the operations plan;

(H)Procedure for notifying NMFS if a member is no longer part of the Sector and the reason for leaving;

(I)The process through which the operations plan can be amended by Sector members;

(J)If the Sector plans to authorize non-Sector vessels to harvest scallops allocated to the Sector, details of such arrangements must be described in the operations plan;

(K)Any documents and analyses necessary to comply with the National Environmental Protection Act must be submitted to NMFS. The development of the analytical document is the responsibility of the applicants.

(d)*Sector review, approval, and revocation* .

(1)A Sector shall submit its operations plan and any NEPA documents to the Regional Administrator and the New England Fishery Management Council no less than 1 year prior to the date that it wishes to begin operations under the Sector. The New England Fishery Management Council shall consider this plan in the course of the periodic framework adjustment or specification process and may, if approved, implement it through either of those processes. After New England Fishery Management Council approval of a Sector, the details of its operation shall be addressed between the Sector and NMFS, although the New England Fishery Management Council may review and provide comment on the proposed details.

(2)The Regional Administrator may withdraw approval of a Sector at any time if he/she, in consultation with the New England Fishery Management Council, determines that Sector participants are not complying with the requirements of an approved operations plan or that the continuation of the operations plan will undermine achievement of fishing mortality objectives of the FMP. Withdrawal of approval of a Sector shall be completed after notice and comment rulemaking, pursuant to the Administrative Procedure Act.

(3)A Sector is required to resubmit its operations plan to the Regional Director no later than December 1 of each year, whether or not the plan has changed. NMFS may consult with the Council and will solicit public comment on the operations plan for at least 15 days, through proposed rulemaking in the **Federal Register** . Upon review of the public comments, the Regional Administrator may approve or disapprove Sector operations, through a final determination pursuant to the Administrative Procedure Act. [FR Doc. E7-24254 Filed 12-14-07; 8:45 am] BILLING CODE 3510-22-S 72 241 Monday, December 17, 2007 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request December 11, 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:* Report and Recordkeeping Requirements. *OMB Control Number:* 0580-0013. *Summary of Collection:* The Grain Inspection, Packers and Stockyards Administration (GIPSA) is mandated to provide, upon request, inspection, certification, and identification services related to assessing the class, quality, quantity, and condition of agricultural products shipped or received in interstate and foreign commerce. Applicants requesting GIPSA services must specify the kind and level of service desired, the identification of the product, the location, the amount, and other pertinent information in order that official personnel can efficiently respond to their needs. *Need and Use of the Information:* GIPSA employees use the information to guide them in the performance of their duties. Additionally, producers, elevator operators, and/or merchandisers who obtain official inspection, testing, and weighing services are required to keep records related to the grain or commodity for three years. Personnel who provide official inspection, testing, and weighing services are required to maintain records related to the lot of grain or related commodity for a period of five years. The information is used for the purpose of investigating suspected violations. *Description of Respondents:* Business or other for-profit; Federal Government; State, Local or Tribal Government. *Number of Respondents:* 8,754. *Frequency of Responses:* Recordkeeping; Reporting: On occasion, Weekly, Monthly, Semi-annually, Annually. *Total Burden Hours:* 164,393. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E7-24356 Filed 12-14-07; 8:45 am] BILLING CODE 3410-KD-P DEPARTMENT OF AGRICULTURE Natural Resources Conservation Service Conservation Innovation Grants Fiscal Year 2008 Announcement of Program Funding; Catalog of Federal Domestic Assistance

(CFDA)Number: 10.912 AGENCY: Natural Resources Conservation Service (NRCS), Commodity Credit Corporation. ACTION: Notice. SUMMARY: NRCS requests applications for Conservation Innovation Grants

(CIG)to stimulate the development and adoption of innovative conservation approaches and technologies. Applications are accepted from all 50 States, the Caribbean Area (Puerto Rico and the Virgin Islands), and the Pacific Basin Area (Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands). NRCS anticipates that the amount available for support of this program in FY 2008 will be approximately $20 million. Funds will be awarded through a nationwide competitive grants process. There are three CIG categories available in FY 2008: Natural Resource Concerns Category, Technology Category, and the Chesapeake Bay Watershed Category. Applications are requested from eligible government or non-government organizations or individuals for competitive consideration of grant awards for projects between one and three years in duration. This notice identifies the objectives for CIG projects, the eligibility criteria for projects and associated instructions needed to apply to CIG. DATES: Applications must be received in the NRCS National Headquarters by 5 p.m., Eastern Standard Time (EST), on Wednesday, February 20, 2008. ADDRESSES: The address for hand-delivered applications or applications submitted using express mail or overnight courier service is: USDA Natural Resources Conservation Service; Conservation Innovation Grants Program; Financial Assistance Programs Division, Room 5239-S; 1400 Independence Ave, SW.; Washington, DC 20250. Contact phone numbers for hand-delivered applications are

(202)720-1845,

(202)720-2335, or

(202)205-1165. Applications sent via the U.S. Postal Service must be sent to the following address: USDA Natural Resources Conservation Service; Conservation Innovation Grants Program; Financial Assistance Programs Division; Room 5239-S, Post Office Box 2890, Washington, DC 20013-2890. To submit your application electronically, visit *www.grants.gov/apply* and follow the instructions. FOR FURTHER INFORMATION CONTACT: Tessa Chadwick, CIG National Program Manager, USDA NRCS, PO Box 2890, Room 5239-S, Washington, DC 20013-2890 Shani Harmon, CIG Program Assistant, USDA NRCS, PO Box 2890, Room 5239-S, Washington, DC 20013-2890. Phone:

(202)720-2335 Phone:

(202)205-1165. Fax:

(202)720-4265 Fax:

(202)720-4265. e-mail: *tessa.chadwick@wdc.usda.gov.* e-mail: *shani.harmon@wdc.usda.gov.* SUPPLEMENTARY INFORMATION: Table of Contents PART I—Funding Opportunity Description A. Legislative Authority B. Overview C. Innovative Conservation Projects or Activities D. CIG Categories 1. Natural Resource Concerns 2. Chesapeake Bay Watershed 3. Technology PART II—Funding Availability A. National Component B. State Component PART III—Eligibility Information A. Matching Funds B. Beginning and Limited Resource Farmers and Ranchers, and Indian Tribes C. EQIP Payment Limitation and Duplicate Payments D. Project Eligibility PART IV—Application and Submission Information A. How To Obtain Application Materials B. Application Content and Format C. How To Submit a Written Application D. How To Submit an Application Electronically E. Application Due Date F. Acknowledgement of Submission G. Funding Restrictions H. Patents and Inventions I. Withdrawal of Applications PART V—Application Review A. Application Review and Selection Process B. Criteria for Application Evaluation C. Anticipated Announcement and Award Dates PART VI—Award Information and Administration A. Award Notification B. Grant Agreement C. Reporting Requirements PART VII—Agency Contacts PART VIII—Other Information A. FY 2008 Application Checklist B. NRCS State Conservationists I. Funding Opportunity Description A. Legislative Authority CIG was authorized as part of the Environmental Quality Incentives Program

(EQIP)[16 U.S.C. 3839aa-8] under Section 1240H of the Food Security Act of 1985, as added by Section 2301 of the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171). The Secretary of Agriculture delegated the authority for the administration of EQIP and CIG to the Chief of the Natural Resources Conservation Service (NRCS), who is a Vice President of the Commodity Credit Corporation (CCC). EQIP is administered by NRCS under the authorities of the CCC. B. Overview The purpose of CIG is to stimulate the development and adoption of innovative conservation approaches and technologies while leveraging the Federal investment in environmental enhancement and protection, in conjunction with agricultural production. CIG projects are expected to lead to the transfer of conservation technologies, management systems, and innovative approaches (such as market-based systems) into NRCS technical manuals, guides, and references, or to the private sector. CIG does not fund research projects. Instead, it is a vehicle to stimulate the development and adoption of conservation approaches or technologies that have been studied sufficiently to indicate a likelihood of success and to be candidates for eventual technology transfer or institutionalization. CIG funds projects targeting innovative on-the-ground conservation, including pilot projects and field demonstrations. NRCS will accept applications for single or multi-year projects, not to exceed three years, submitted to NRCS from eligible entities, including federally-recognized Indian Tribes, State and local governments, and non-governmental organizations and individuals. Applications are accepted from all 50 States, the Caribbean Area (Puerto Rico and the Virgin Islands), and the Pacific Basin Area (Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands). Complete applications will be evaluated by a technical peer review panel and scored based on the Criteria for Application Evaluation identified in this document. There are eight review groups for FY 2008 applications: Water Quality-Livestock; Water Quality-Not Livestock; Water Quantity; Soils; Atmospheric; Grazing Land and Forest Health; Wildlife; and Energy. Applicants will indicate which of these review groups should review the application. Scored applications will be forwarded to a Grants Review Board. The Grants Review Board will make recommendations for project approval to the Chief. Final award selections will be made by the Chief of NRCS. C. Innovative Conservation Projects or Activities For the purposes of CIG, the proposed innovative project or activity must encompass the development and field testing, evaluation, and implementation of: • Conservation adoption incentive systems, including market-based systems; or, • Promising conservation technologies, practices, systems, procedures, or approaches. To be given priority consideration, the innovative project or activity: • Will have been studied sufficiently to indicate a good probability for success; • Demonstrates, tests, evaluates, and verifies environmental (soil, water, air, plants, and animal) effectiveness, utility, affordability, and usability in the field; • Adapts conservation technologies, practices, systems, procedures, approaches, and incentive systems to improve performance, and encourage adoption; • Introduces conservation systems, approaches, and procedures from another geographic area or agricultural sector; and • Adapts conservation technology, management, or incentive systems to improve performance. D. CIG Categories For Fiscal Year 2008, three categories of CIG will be offered. Applicants will need to identify which of the 3 categories applies to their proposed project. 1. National Natural Resource Concerns Category Applications must demonstrate the use of innovative technologies or approaches, or both, to address a natural resource concern or concerns. The five natural resource concerns for possible funding through Conservation Innovation Grants for fiscal year 2008 are: Water Resources; Soil Resources; Atmospheric Resources; Grazing Land and Forest Health; and Wildlife Habitat. This Category also includes applications that focus on Market Based Approaches to address any or all of these five resource concern areas. A. Water Resources The objective of this natural resource concern is to implement new technologies and/or approaches to maintain, restore, or enhance water quality and/or quantity in watersheds with predominantly agricultural land uses while sustaining productivity. Subtopics include: • Nutrient, pesticide, and/or pathogen transport to surface water and groundwater; • Sediment transport to surface water; • Aquifer recharge/maintenance of groundwater supplies; • Increased water supplies/availability through alternative treatment; enhanced automation, monitoring or scheduling; reduced system losses; or reuse strategies; and • Technologies scalable to small farms to maintain, restore, or enhance water quality and/or quantity. B. Soil Resources The objective of this conservation concern is to implement new technologies and/or approaches to maintain, restore, or enhance soil resources associated with agricultural and forest land uses while sustaining productivity. Subtopics include: • Erosion reduction; • Accumulation of harmful levels of constituents in soils, including nutrients, metals, or salts; and • Improvement to soil quality and productivity. C. Atmospheric Resources The objective of this conservation concern is to implement new technologies and/or approaches to maintain, restore, or enhance air quality and atmospheric resources through agricultural and forestry practices while sustaining productivity. Subtopics include: • Agricultural emissions of particulates, odors, volatile organic compounds, and greenhouse gases; • Carbon sequestration in soil and through other mechanisms; • Bio-based energy opportunities; and • Identification and quantification of management practices for air quality and atmospheric change concerns at animal operations. D. Grazing Land and Forest Health The objective of this conservation concern is to implement new technologies and/or approaches to maintain, restore, or enhance grazing land and forest health while sustaining productivity. Subtopics include: • Invasive species management on grazing and forest land; • Effects of pests, diseases, and fragmentation on forest and grazing land quality/health; • Systems or practices to minimize overgrazing and restore lands suffering effects of overgrazing; • Low-input approaches to increasing forage production; • Alternative grasses or forages for livestock; and • Systems or practices that integrate trees-forage-livestock (i.e., silvopasture). E. Wildlife Habitat The objective of this conservation concern is to implement new technologies and/or approaches for environmentally sound wildlife habitat management while sustaining agricultural productivity. Possible subtopics include: • Riparian area management and restoration; • Invasive species management; • Pollinator protection • Biodiversity; and, • Wetland function and health. F. Market-Based Approaches The objective of this approach is to develop, implement, and or evaluate processes, technology tools, institutional arrangements, or systems that are ‘market-based’ in nature and address one of the above priority resource concerns. Possible subtopics include: • Development and application of technology tools that measure environmental services (i.e. benefits) in order to document credits for trading; • Greenhouse gas accounting tools and registries; • Water quality improvement accounting tools; • Nutrient trading and/or accounting tools; • Demonstration of ecosystem-based services that facilitate conservation implementation; and • Processes and institutional arrangements that develop, demonstrate, evaluate, and clarify successful approaches to market-based conservation involving private working lands. 2. Chesapeake Bay Watershed Category Applications for the Chesapeake Bay Watershed Category are being accepted and reviewed by the National Fish and Wildlife Foundation. Information for submitting an application for this category of CIG funding can be accessed at the following link *http://www.nfwf.org* . 3. National Technology Category Applications must address one or more of the following specific technology needs areas identified by NRCS: A. Improved On-Farm Energy Efficiency—Possible Subtopics Include • Renewable energy sources such as wind or solar; • Methane recovery; • Other innovative farm management or production technologies; • Automated self energy audit technology; • Energy audit worksheets; and • Compilation of on-farm energy audits and audit processes. B. Water Management (Both Drainage Water and Irrigation Water) Drainage Water Management—Possible Subtopics Include • Implementation of drainage water management systems in small watersheds and application of tools to assess multiple effects (e.g., economic, wildlife habitat, soil quality, air quality, wetlands and water quality) at watershed scale; • Achieving downstream nutrient reduction benefits through management of surface or sub-surface drainage systems; • Improving water/nutrient accounting/budgeting; • Improving design and management of drainage water management systems to improve benefits to producers and to the environment; • Improving the ability of buffers to reduce nutrient loadings in tile drained landscapes; and • Improving wetland creation, restoration, and enhancement to reduce nutrient loadings. Irrigation Water Management—Possible Subtopics Include • New engineering software or modeling systems that would automate, demonstrate, and facilitate technically sound conservation decisions by the public pertaining to resource assessment, conservation planning, and conservation system installation and evaluation; • Irrigation management for water conservation; • Achieving multiple benefits (e.g., economic, enhanced crop production, recreation, wildlife habitat, soil quality, wetlands and water quality) through area-wide or regional irrigation water management, scheduled application, and supply or application of new or innovative technology; and • Achieving nutrient or pollutant reduction benefits in downstream receiving waters through area-wide or regional irrigation water management, scheduled application, and supply or application of new or innovative technology. II. Funding Availability A. National Component NRCS anticipates that the amount available for support of this program in FY 2008 will be approximately $20 million. The anticipated funding breakdown for each category is: • National Natural Resource Concerns Category: Up to $10 million; • Chesapeake Bay Watershed Category: Up to $5 million; • National Technology Category: Up to $5 million. Funds will be awarded through a nationwide competitive grants process. Funds not used in one category may be shifted to another category by the Chief. The maximum award amount for any project will not exceed $1 million. CIG will fund single- and multi-year projects, not to exceed three years. The available funding for the three national categories is anticipated to fund approximately 50 to 60 awards based on previous years' experience in administering CIG. The anticipated start date for awarded projects is September 1, 2008. B. State Component The intent of the State Component is to provide flexibility to NRCS State Conservationists to target CIG funds to individual producers and smaller organizations that may possess promising innovations, but may not compete well on the larger scale of the national grants competition. For FY 2008, the State Component of CIG will be available in select states at the discretion of the State Conservationist. Project applications that request federal funds of $75,000 or less and are not multi-state in scope will be forwarded to the appropriate state program manager if that state is participating in the State Component. All applications that are forwarded will be notified in writing, and provided with a contact for State Component information. Funding availability and application and submission information for state competitions will be announced through public notices (and on State NRCS Web sites) separately from this national notice. State Conservationists will determine the funding level for state competitions, with individual grants not to exceed $75,000. III. Eligibility Information CIG applicants must be a federally-recognized Indian Tribe; State or local unit of government; non-governmental organization; private business; or individual. A. Matching Funds Selected applicants may receive grants of up to 50 percent of the total project cost. Applicants must provide non-Federal funding (matching funds) for at least 50 percent of the project cost. Up to half of the applicant's matching funds (up to 25 percent of the total project cost) may be from in-kind contributions. B. Beginning and Limited Resource Farmers and Ranchers, and Indian Tribes Information regarding the definitions for Limited Resource or Beginning Farmers and Ranchers can be found in the EQIP Final Rule, **Federal Register** , Vol. 68, No.104, Section 1466.3, Definitions. For the FY 2008 grant award process, up to 10 percent of the total funds available for CIG may be set-aside for applications from Beginning and Limited Resource Farmers and Ranchers, Indian Tribes, or community-based organizations comprised of or representing these entities. To compete for these set-aside funds, the applicant must make a declaration in the application as described in Part IV B.5. of this notice. Applications that are unsuccessful in the set-aside competition will be placed automatically in the general application pool for consideration. Funds not used in the set-aside pool will revert back into the general funding pool. In addition, an exception regarding matching funds is made for projects funded out of the set-aside. Up to three fourths of the required matching funds for such projects (up to 37.5 percent of the total project cost) may derive from in-kind contributions. This exception is intended to help Beginning and Limited Resource Farmers or Ranchers and Indian Tribes meet the statutory requirements for receiving a Conservation Innovation Grant. C. EQIP Payment Limitation and Duplicate Payments Section 1240G of the Food Security Act of 1985 (as amended by the Farm Security and Rural Investment Act of 2002), 16 U.S.C. 3839aa-7, imposes a $450,000 limitation for all cost-share or incentive payments disbursed to individuals or entities under an EQIP contract between 2002 and 2008. The limitation applies to CIG in the following manner: a. CIG funds are awarded through grant agreements; these grant agreements are not EQIP contracts. Thus, CIG awards in and of themselves are not limited by the payment limitation. b. Direct or indirect payments made to an individual or entity using funds from a CIG award to carry out structural, vegetative, or management practices count toward each individual's or entity's EQIP payment limitation. Through project progress reports, CIG grantees are responsible for certifying that producers involved in CIG projects do not exceed the payment limitation. Further, all direct and indirect payments made to producers using CIG funds must be reported to the NRCS CIG program manager in the semi-annual report. Direct or indirect payments can not be made for a practice for which the producer has already received funds, or is contracted to receive funds, through any of the USDA Programs (EQIP, AMA, CSP, WHIP, etc.) since this would be considered a duplicate payment. Payment Limitation Examples Following are two examples of how the $450,000 EQIP payment limitation applies to CIG projects: a. A $500,000 CIG grant is awarded to a State environmental agency to demonstrate an innovative, market-based, water quality trading program. The money is used to finance the development of a market infrastructure, and none of the funds are used to implement structural, vegetative, or management practices. Producers in the trading market demonstration area may indirectly benefit from their eventual participation in the market, but there is no direct or indirect transfer payment of CIG dollars. If, on the other hand, part of the CIG award were used to make payments to producers who implement conservation practices on their land as part of a trading program, those payments would count toward each producer's $450,000 EQIP payment limitation. b. A $1,000,000 CIG grant is awarded to a Conservation District to pilot a community-based animal waste treatment technology innovation. EQIP-eligible producers in the area transport their animal waste to a central treatment location. Because producers are not directly or indirectly receiving CIG funds, the payment limitation does not apply. If, however, the producers were paid for their waste, or for transporting their waste to the central treatment location using CIG funds, the payments would be subject to each producer's EQIP payment limitation. D. Project Eligibility All agricultural producers receiving direct or indirect payments through participation in a CIG project must meet the EQIP eligibility requirements as set forth in 16 U.S.C. 3839aa-1. Refer to *http://www.nrcs.usda.gov/programs/eqip/* for more information on EQIP eligibility requirements. Participating producers are not required to have an EQIP contract. A person or entity is not eligible if the three-year average adjusted gross income

(AGI)exceeds $2.5 million with less than 75 percent derived from farming, ranching, or forestry-related sources at the time of application. A person who is determined ineligible for USDA program benefits under the Highly Erodible Land Compliance

(HELC)and Wetland Compliance

(WC)provisions of the Food Security Act of 1985 will not be eligible to receive direct or indirect payments through CIG. Technologies and approaches that are eligible for funding in a project's geographic area through EQIP are ineligible for CIG funding except where the use of those technologies and approaches demonstrates clear innovation. The burden falls on the applicant to sufficiently describe the innovative features of the proposed technology or approach (applicants should reference the appropriate State's EQIP Eligible Practices List by contacting the NRCS State office, or by visiting the EQIP Web site: *http://www.nrcs.usda.gov/programs/eqip/EQIP_signup/2008_EQIP_Signup/index.html* . The grantee is responsible for providing the technical assistance required to successfully implement and complete the project. NRCS will designate a Program Contact, an Administrative Contact, and a Technical Contact to provide oversight for each project receiving an award. IV. Application and Submission Information A. How To Obtain Application Materials All OMB standard forms necessary for CIG submission are posted on the following Web site: *http://www.grants.gov/agencies/aapproved_standard_forms.jsp* . An application checklist is available on the CIG Web site: *http://www.nrcs.usda.gov/programs/cig.* B. Application Content and Format Applications must contain the information set forth below in order to receive consideration for a grant. Applicants should not assume prior knowledge on the part of NRCS or others as to the relative merits of the project described in the application. Submit applications in the following format: Applications should be typewritten or printed on 8 1/2 ″ x 11″ white paper, double spaced. The text of the application should be in a font no smaller than 12-point, with one-inch margins. If submitting applications for more than one project, submit a separate, complete application package for each project. Applications must include all required forms and narrative sections described below. Incomplete applications will not be considered. 1. *Cover Sheet:* Applicants must use Standard Form 424 as the cover sheet for each project application. Standard Form 424 can be downloaded from *http://www.grants.gov/agencies/aapproved_standard_forms.jsp* or obtained from a NRCS State Office. (A list of NRCS State Offices is provided at the end of this announcement.) 2. *Project Summary Sheet:* Applicants must submit a Project Summary Sheet (no more than 2 pages in length) that includes the listed information. A template for the Project Summary Sheet is available on the NRCS CIG Web site: *http://www.nrcs.usda.gov/programs/cig.* a. Project Title. b. Project Director name and contact information (including e-mail). c. Names and affiliations of project collaborators. d. Project Purpose. e. Project Deliverables/Products. f. Project Scope/Area. g. Project Start and End Dates (Projects should plan to begin no earlier than September 1, 2008 and no later than September 30, 2008). h. CIG National Component Category (Natural Resource or Technology). i. Application Review Category (water quality-livestock, water quality-non livestock, water quantity, soils, atmospheric, grazing land and forest health, wildlife habitat, or energy). j. Declaration of EQIP eligibility. k. Brief summary of project. 3. *Project Description:* Each project must be completely and accurately described in no more than 10 double-spaced pages. The description must include the following information: a. Project background: Describe the history of, and need for, the proposed innovation. Provide evidence that the proposed innovation has been studied sufficiently to indicate a good probability for success of the project; b. Project objectives: Be specific, using qualitative and quantitative measures, if possible, to describe the project's purpose and goals. Describe how, based on the description of innovative conservation projects and activities provided in section I.C., the project is innovative; c. Project methods: Describe clearly the methodology of the project and the tools or processes that will be used to implement the project; d. Location and size of project or project area: Describe the location of the project and the relative size and scope (e.g., acres, farm types and demographics, etc.) of the project area. Provide a map, if possible; e. Producer participation: Estimate the number of producers involved in the project, and describe the extent of their involvement (all producers involved in the project must be eligible for EQIP); f. Project action plan and timeline: Provide a table listing project actions, timeframes, and associated milestones through project completion; g. Project management: Give a detailed description of how the project will be organized and managed. Include a list of key project personnel, their relevant education or experience, and their anticipated contributions to the project. Explain the level of participation required in the project by government and non-government entities. Identify who will participate in monitoring and evaluating the project; h. Benefits or results expected and transferability: Identify the results and benefits to be derived from the proposed project activities, and explain how the results will be measured. Identify project beneficiaries—for example, agricultural producers by type or region or sector; rural communities; municipalities. Explain how these entities will benefit. In addition, describe how results will be communicated to others via outreach activities; i. Project evaluation: Describe the methodology or procedures to be followed to evaluate the project, determine technical feasibility, and quantify the results of the project for the final report. (Grant recipients will be required to provide a semi-annual report of progress, quarterly financial reports, and a final project report to NRCS. Instructions for submitting quarterly reports will be detailed in the grant agreement.); and j. Environmental impacts: Describe the anticipated environmental effects of the proposed project. This description will be used to determine whether an Environmental Assessment

(EA)or Environmental Impact Statement

(EIS)is needed for any given project, prior to the awarding of grant funds. The applicant is responsible for the cost of an EA or EIS, should one be required. 4. *Budget Information:* Must use Standard Form

(SF)424 A Budget Information Non-Construction Programs to document budget needs. SF 424 A is available at *http://www.grants.gov/agencies/aapproved_standard_forms.jsp* or can be obtained from a NRCS State Office. In addition to the SF424 A, all applicants must provide a detailed narrative in support of the budget for the project, broken down by each project year. Itemize the costs necessary for successful completion of the proposed project. Indicate the total amount (both cash and in-kind) of non-Federal matching support that will be provided to the proposed project. Identify and provide documentation of the source(s), the amount, and the nature (cash or in-kind) of the matching funds. If claiming indirect costs, an applicant must provide justification for the rate of indirect costs being claimed. Indirect costs can not exceed 15 percent. In-kind costs of equipment or project personnel cannot exceed 50 percent of the applicant's match (except in the case of projects carried out by either a Beginning or Limited Resource Farmer or Rancher, or Indian Tribe, or a community-based organization comprised of or representing these entities). The remainder of the match must be provided in cash. 5. *Declaration of Beginning Farmer or Rancher or Limited Resource Farmer or Rancher, or Indian Tribe:* If an applicant wishes to compete in the 10 percent set-aside funding pool (see Part III B. that describes the provision of a set-aside pool of funding for Beginning and Limited Resource Farmers or Ranchers, and Indian Tribes) and avail themselves of the in-kind contribution exception, applicants must make a declaration in writing of their status as a Beginning Farmer or Rancher or Limited Resource Farmer or Rancher, or Indian Tribe, or a community-based organization comprised of or representing these entities. 6. *Declaration of EQIP Eligibility:* Applicants must make a declaration in writing that they, or parties involved in the project, are eligible for EQIP. 7. *State Conservationist Letter of Review:* Applicants must send a copy of cover letter showing that the application was sent to the appropriate State Conservationist(s) for review. If a project is multi-state in scope, all states in the project area must be sent the application for review. The State Conservationist(s) will review the application for potential duplication of efforts, ethics concerns, consistency with overall EQIP objectives, and the expected benefits to EQIP implementation in their state(s). Applicants must send their application (at least the Project Description (Item 3) and the Budget Information (Item 4)) to the appropriate State Conservationist(s) postmarked, or dated if electronic, no later than February 15, 2008. State Conservationist(s) must submit letters to NRCS National Headquarters by March 7, 2008. A list of NRCS State Office addresses and phone numbers is included at the end of this notice. Applicants are encouraged to consult with the appropriate State Conservationist(s) during application development to discuss the letter of review. 8. *Certifications:* All applications must include a signed Standard Form

(SF)424 B—Assurances, Non-construction Programs. SF 424 B may be found at: *www.grants.gov/agencies/aapproved_standard_forms.jsp* or contact a NRCS State Office. Applicants, by signing and submitting an application, assure and certify that they are in compliance with the following from 7 Code of Federal Register (CFR): a. Part 3017, Government wide Debarment and Suspension (Non-procurement) *http://www.access.gpo.gov/nara/cfr/waisidx_04/7cfr3o17_04.html* b. Part 3018, New Restrictions on Lobbying *http://www.access.gpo.gov/nara/cfr/waisidx_04/7cfr3018_04.html* ; and c. Part 3021, Government wide Requirements for Drug-Free Workplace (Financial Assistance) *http://www.access.gpo.gov/nara/cfr/waisidx_04/7cfr3021_04.html* . 9. *DUNS Number:* A Dun and Bradstreet (D&B) Data Universal Numbering System

(DUNS)number is a unique nine-digit sequence recognized as the universal standard for identifying and keeping track of over 70 million businesses worldwide. A **Federal Register** notice of final policy issuance (68 FR 38402) requires a DUNS number in every application (i.e., hard copy and electronic) for a grant or cooperative agreement (except applications from individuals) submitted on or after October 1, 2003. For information about how to obtain a DUNS number go to *http://www.grants.gov/RequestaDUNS* or call 1-866-705-5711. Please note that the registration may take up to 14 business days to complete. 10. *Required CCR Registration:* The Central Contractor Registry

(CCR)is a database that serves as the primary Government repository for contractor information required for the conduct of business with the Government. This database will also be used as a central location for maintaining organizational information for organizations seeking and receiving grants from the Government. CIG applicants must register with the CCR. To register, visit *http://www.ccr.gov.* Allow a minimum of 5 days to complete the CCR registration. C. How To Submit a Written Application Applicants must submit one signed original copy of each project application. Hard copies must be accompanied by an electronic copy on a 3 1/2 -inch diskette or compact disc (CD). Electronic files must be either Microsoft Word or Adobe Acrobat

(pdf)files. Applications submitted via facsimile or e-mail will not be accepted. The address for hand-delivered applications or applications submitted using express mail or overnight courier service is: USDA Natural Resources Conservation Service, Conservation Innovation Grants Program, Financial Assistance Programs Division, Room 5239-S, 1400 Independence Ave, SW., Washington, DC 20250. Contact phone numbers for hand-delivered applications (needed to enter the USDA South Building) are

(202)720-1845,

(202)720-2335, or

(202)205-1165. The address for applications sent regular mail is: USDA Natural Resources Conservation Service, Conservation Innovation Grants Program, Financial Assistance Programs Division, Room 5239-S, Post Office Box 2890, Washington, DC 20013-2890. D. How To Submit an Application Electronically Applicants may submit applications electronically through *Grants.gov,* the Federal government's e-grants portal. Applications submitted through *Grants.gov* must contain all of the elements of a complete application outlined above. Instructions for electronically submitting the required standard forms, abstract, narrative, and declarations are posted on *Grants.gov.* The cover letter requesting the State Conservationist letter of review may be scanned as an attachment to the application. Instructions for adding attachments are available on *Grants.gov.* Applications submitted electronically are date and time stamped by *Grants.gov* and must be received by the identified closing date. Note that NRCS is not responsible for any technical malfunctions or Web site problems related to *Grants.gov* submissions. Applicants should begin the *Grants.gov* process well before the submission deadline to avoid problems. E. Application Due Date Complete applications must be received in Room 5239-S at NRCS National Headquarters by 5 p.m. EST on February 20, 2008. A postmark date is NOT a factor in whether an application is received on time. The applicant assumes the risk of any delays in application delivery. Applicants are strongly encouraged to submit completed applications via overnight mail or delivery service to insure timely receipt by NRCS. F. Acknowledgement of Submission Applications received by the due date will be acknowledged with an official letter. If an applicant has not received an acknowledgement within 30 days of the submission, they must contact the NRCS programmatic contact (See Part VII). Failure to do so may result in the application not being considered for funding by the peer review panel. G. Funding Restrictions Awardees may not use un-recovered indirect costs as part of their matching funds. CIG funds may not be used to pay any of the following costs unless otherwise permitted by law, or approved in writing by the Authorized Departmental Officer in advance of incurring such costs: a. Costs above the amount of funds authorized for the project; b. Costs incurred prior to the effective date of the grant; c. Costs which lie outside the scope of the approved project and any amendments thereto; d. Entertainment costs, regardless of their apparent relationship to project objectives; e. Compensation for injuries to persons, or damage to property arising out of project activities; f. Consulting services performed by a Federal employee during official duty hours when such consulting services result in the payment of additional compensation to the employee; and, g. Renovation or refurbishment of research or related spaces; the purchase or installation of fixed equipment in such spaces; and the planning, repair, rehabilitation, acquisition, or construction of buildings or facilities. This list is not exhaustive. Questions regarding the allowances of particular items of cost should be directed to the administrative contact person listed below. H. Patents and Inventions Allocation of rights to patents and inventions shall be in accordance with USDA regulation 7 CFR 3019.36. This regulation provides that small businesses normally may retain the principal worldwide patent rights to any invention developed with USDA support. In accordance with 7 CFR 3019.2, this provision will also apply to commercial organizations for the purposes of CIG. USDA receives a royalty-free license for Federal Government use, reserves the right to require the patentee to license others in certain circumstances, and requires that anyone exclusively licensed to sell the invention in the United States must normally manufacture it domestically. I. Withdrawal of Applications Applications may be withdrawn by written notice at any time before an award is made. Applications may be withdrawn in person by the applicant, or by an authorized representative thereof, if the representative's identity is made known and the representative signs a receipt for the application. V. Application Review A. Application Review and Selection Process Prior to technical review, each application will be screened for completeness and compliance with the provisions of this notice. Incomplete applications and those that do not meet the provisions of this notice will be eliminated from competition, and notification of elimination will be mailed to the applicant. Applications meeting the provisions of this notice will be scored by a Peer Review Panel. The applications will be divided among the peer review groups, based on the area selected by the applicant. The eight review areas for FY 2008 applications are: Water Quality-Livestock; Water Quality-Not Livestock; Water Quantity; Soils; Atmospheric; Grazing Land and Forest Health; Wildlife Habitat; and Energy. Applications will be scored based on the Criteria for Application Evaluation below. Scored applications will be forwarded to a Grants Review Board, which will certify the rankings from the peer review panels, and ensure that the application evaluations are consistent with program objectives. The CIG Grants Review Board consists of five members of NRCS leadership, specifically the Deputy Chief for Soil Survey and Resource Assessment, the Deputy Chief for Science and Technology, the Deputy Chief for Programs, one Regional Assistant Chief, and one State Conservationist. The Grants Review Board will make recommendations to the Chief for final selection and funding decisions. B. Criteria for Application Evaluation Peer review panels will use the following criteria to evaluate project applications. Each of the four criterions carries an equal weight of 25 percent. 1. Purpose and goals: a. The purpose and goals of the project are clearly stated; b. The project adheres to the natural resource conservation concerns for FY 2008 stated in this notice; and, c. There is clear and significant potential for a positive and measurable outcome. 2. Soundness of approach or design: a. The project adheres to the description of innovative projects or activities found in Part IC. of this notice; b. Technical design and implementation strategy is based on sound science; c. There is a good likelihood of project success; d. The project substantively involves EQIP eligible producers; and, e. The project promotes environmental enhancement and protection in conjunction with agricultural production. 3. Project management: a. The application has clear milestones and timelines, designated staff, and demonstrates collaboration; b. The project staff has the technical expertise needed to do the work; and c. The budget is reasonable and adequately justified. 4. Transferability: a. There is great potential to transfer the approach or technology to others and/or to other geographical areas; and, b. The project will result in the development of technical or related materials (e.g., technical standards, technical notes, manuals, handbooks, software) that will help foster adoption of the innovative technology or approach by other producers, and in other geographic areas. C. Anticipated Announcement and Award Dates CIG Awards are anticipated to be announced by June 1, 2008. Funds are not awarded, and work may not start, until an agreement is signed by both NRCS and the grantee. All agreements are expected to be awarded by August 15, 2008. VI. Award Information and Administration A. Award Notification Applicants who have been selected will receive a letter of official notification from NRCS National Headquarters. This notice will indicate the need to work with the administrative contact to develop an agreement prior to starting work on the project. Applicants who are not selected will be notified by official letter. B. Grant Agreement The CCC, through NRCS, will use a grant agreement with selected applicants to document participation in the CIG component of EQIP. The grant agreement will include: • Project purpose; • Project objectives and deliverables; • The final project plan listing cooperators in the project, and identifying the grant applicant and the project manager; • The project timelines and expected project completion date; • The project progress and budget reporting requirements; • Award amount and budget information; • Information regarding requests for advance of funds or reimbursement; • The role of NRCS technical oversight in the project; • Reporting requirements including attendance at CIG grantee biannual meeting; • Changes in project plans; and • Other requirements and terms deemed necessary by the CCC to protect the interests of the United States. C. Reporting Requirements Grantees receiving an advance of Federal funds of more than $25,000 are required to submit a SF-272 (Report of Federal Cash Transactions), and when necessary, the continuation sheet, SF-272-A, no later than 15 days following the end of each quarter or 90 days after project completion. These reports are used to monitor cash advanced to recipients and to obtain disbursement and outlay information for each award. Grantees must submit a Financial Status Report (SF-269) no later than 30 days after the end of each quarter and 90 days after completion of project. The SF-272 and SF-269 are available at: *http://www.nrcs.usda.gov/programs/cig/InfoForGrantees.html.* In addition, every six months the grantee must submit a written performance progress report to the NRCS program contact and the NRCS technical contact. This report is distinct from the quarterly financial report described above. Each progress report shall cover work performed during the previous 6-month period, including any funded or unfunded time extensions, a comparison of actual accomplishments to project goals, and a statement of work projected to be completed in the next 6-month period. The grantee is responsible for providing the technical assistance required to successfully implement and complete the project. NRCS will designate a Program Contact, an Administrative Contact, and a Technical Contact to provide oversight for each project receiving an award. To satisfy the requirements of EQIP (7 CFR part 1466) compliance measures, the grantee is required to submit as a component of the semi-annual progress report: 1. A list of producers, identified by name and social security number, of all EQIP-eligible producers or entities involved in the project. 2. The dollar amount of direct and indirect payment made to each individual producer or entity for any structural, vegetative, or management practices. Both quarterly and cumulative payment amounts must be submitted. 3. A self-certification indicating that each individual or entity receiving a direct or indirect payment through this grant is in compliance with the EQIP Payment Limitation, AGI, HEL, and Wetlands Conservation Compliance Farm Bill provisions. A progress report template will be provided to grantees by the NRCS program contact. This template is also available on the NRCS CIG Web site at: *http://www.nrcs.usda.gov/programs/cig/InfoForGrantees.html.* NRCS will designate a Program Contact and a Technical Contact for the project. These individuals will have technical oversight responsibility for the project. The grantee must send copies of each semi-annual progress report to these NRCS contacts, and comply with any requests for information from these individuals. NRCS recommends that the grantee work closely with these subject matter experts throughout the course of the project. Upon passage of the completion date of the project, a final report must be submitted within 90 days detailing project activities, funding received, funding expended, results, and potential for transferability of results. The final report should address completion of the project deliverables listed in the grant agreement. NRCS will host an annual meeting for CIG grantees and NRCS technical contacts. Grantees will be required to attend at least one of these sessions at their own expense. VII. Agency Contacts *CIG Program Contact:* Tessa Chadwick, CIG National Program Manager, 1400 Independence Ave, SW., Room 5237-S, Washington, DC 20250. Phone:

(202)720-2335, Fax:

(202)720-4265, e-mail: *tessa.chadwick@wdc.usda.gov.* *CIG Administrative Contact:* Karen Minor, Grants and Agreements Team Leader, 1400 Independence Ave, SW., Room 5222-S, Washington, DC 20250. Phone:

(202)720-2604 or

(202)720-4102, Fax:

(202)720-2262, e-mail: *karen.minor@wdc.usda.gov.* Additional information about CIG, including fact sheets and frequently asked questions (FAQs), is available on the CIG Web page: *http://www.nrcs.usda.gov/programs/cig.* Signed in Washington, DC on December 10, 2007. Arlen L. Lancaster, Vice President, Commodity Credit Corporation, Chief, Natural Resources Conservation Service. VIII. Other Information APPLICATIONS MISSING ANY OF THESE REQUIRED ITEMS WILL NOT BE CONSIDERED Fiscal Year 2008 Application Package Checklist ☐ 1. Application Cover Sheet: Complete Standard Form 424 (SF-424). ☐ 2. Project Summary Sheet: (2 page maximum; template available)) a. Project Title; b. Project Director name and contact information (including e-mail); c. Names and affiliations of project collaborators; d. Project Purpose; e. Project Deliverables/Products; f. Project Scope/Area; g. Project Start and End Dates (Projects should plan to begin no earlier than September 1, 2008 and no later than September 30, 2008); h. CIG National Component Category (Natural Resource or Technology); i. Application Review Category (water quality-livestock, water quality-non livestock, water quantity, soils, atmospheric, grazing land and forest health, wildlife, or energy); j. EQIP Eligibility Declaration; k. Brief summary of project. ☐ 3. Project Description: (10 pages maximum, double spaced, 12 point font) a. Project background; b. Project objectives; c. Project methods; d. Location and size of project area (include a map if possible); e. Producer participation; f. Project action plan and timeline; g. Project management; h. Benefits or results expected and transferability; i. Project evaluation; and j. Environmental impacts. ☐ 4. Budget Information: Submit a completed SF-424A, a DETAILED budget narrative, and DOCUMENTATION showing matching funds available. ☐ 5. Declaration of Beginning Farmer or Rancher, Limited Resource Farmer or Rancher, or Indian Tribe (Special Provisions): If applicable, include a statement declaring your status as a Beginning Farmer or Rancher, Limited Resource Farmer or Rancher, Indian Tribe, or Community-based Organization representing these entities. ☐ 6. Declaration of EQIP Eligibility: Include a statement indicating that all producers receiving direct or indirect payments will be eligible for EQIP participation. ☐ 7. Documentation that application was sent to all appropriate State Conservationist(s) requesting a letter of review. ☐ 8. Certifications: Complete Standard Form 424b (SF-424b). ☐ 9. DUNS Number: For information about how to obtain a DUNS number go to *http://www.grants.gov/RequestaDUNS* or call 1-866-705-5711. Please note that the registration may take up to 14 business days to complete. ☐ 10. Required CCR Registration: Visit *www.ccr.gov* to register. Natural Resources Conservation Service State Conservationists and State Offices Alabama: Gary Kobylski, 3381 Skyway Drive, Post Office Box 311, Auburn, AL 36830; phone:

(334)887-4500; fax:

(334)887-4552; *gary.kobylski@al.usda.gov* Alaska: Robert Jones, Atrium Building, Suite 100, 800 West Evergreen, Palmer, AK 99645-6539; phone:

(907)761-7760; fax:

(907)761-7790; *robert.jones@ak.usda.gov* Arizona: David McKay, Suite 800, 3003 North Central Avenue, Phoenix, AZ 85012-2945; phone:

(602)280-8808; fax:

(602)280-8809 or 8805; *david.mckay@az.usda.gov* Arkansas: Kalven L. Trice, Federal Building, Room 3416, 700 West Capitol Avenue, Little Rock, AR 72201-3228; phone:

(501)301-3100; fax:

(501)301-3194; *kalven.trice@ar.usda.gov* California: Ed Burton, Suite 4164, 430 G Street, Davis, CA 95616-4164; phone:

(530)792-5600; fax:

(530)792-5790; *ed.burton@ca.usda.gov* Caribbean Area: Juan A. Martinez, Director, IBM Building, Suite 604, 654 Munoz Rivera Avenue, Hato Rey, PR 00918-4123; phone:

(787)766-5206; fax:

(787)766-6563; *juan.martinez@pr.usda.gov* Colorado: James Allen Green, Room E200C, 655 Parfet Street, Lakewood, CO 80215-5521; phone:

(720)544-2810; fax:

(720)544-2965; *allen.green@co.usda.gov* Connecticut: Margo L. Wallace, 344 Merrow Road, Tolland, CT 06084; phone:

(860)871-4011; fax:

(860)871-4054; *margo.wallace@ct.usda.gov* Delaware: Russell Morgan, Suite 101, 1203 College Park Drive, Dover, DE 19904-8713; phone:

(302)678-4160; fax:

(302)678-0843; *russell.morgan@de.usda.gov* Florida: T. Niles Glasgow, 2614 N.W. 43rd Street, Gainesville, FL 32606-6611, or Post Office Box 141510, Gainesville, FL 32614; phone:

(352)338-9500; fax:

(352)338-9574; *niles.glasgow@fl.usda.gov* Georgia: James Tillman, Federal Building, Stop 200, 355 East Hancock Avenue, Athens, GA 30601-2769; phone:

(706)546-2272; fax:

(706)546-2120; *james.tillman@ga.usda.gov* Hawaii: Lawrence T. Yamamoto, Room 4-118, 300 Ala Moana Boulevard, Honolulu, HI 96850-0002; phone:

(808)541-2600, ext. 100; fax:

(808)541-1335; *larry.yamamoto@hi.usda.gov* Idaho: Richard W. Sims, Suite C, 9173 West Barnes Drive, Boise, ID 83709; phone:

(208)378-5700; fax:

(208)378-5735; *richard.sims@id.usda.gov* Illinois: William J. Gradle, 2118 W. Park Court, Champaign, IL 61821; phone:

(217)353-6600; fax:

(217)353-6676; *bill.gradle@il.usda.gov* Indiana: Jane E. Hardisty, 6013 Lakeside Boulevard, Indianapolis, IN 46278-2933; phone:

(317)290-3200; fax:

(317)290-3225; *jane.hardisty@in.usda.gov* Iowa: Richard Van Klaveren, 693 Federal Building, Suite 693, 210 Walnut Street, Des Moines, IA 50309-2180; phone:

(515)284-6655; fax:

(515)284-4394; *rick.vanklaveren@ia.usda.gov* Kansas: Harold Klaege, 760 South Broadway, Salina, KS 67401-4642; phone:

(785)823-4565; fax:

(785)823-4540; *harold.klaege@ks.usda.gov* Kentucky: Michael Hubbs, Suite 110, 771 Corporate Drive, Lexington, KY 40503-5479; phone:

(859)224-7350; fax:

(859)224-7399; *mike.hubbs@ky.usda.gov* Louisiana: Kevin Norton, 3737 Government Street, Alexandria, LA 71302; phone:

(318)473-7751; fax:

(318)473-7626; *kevin.norton@la.usda.gov* Maine: Joyce Swartzendruber, Suite 3, 967 Illinois Avenue, Bangor, ME 04401; phone:

(207)990-9100, ext. 3; fax:

(207)990-9599; *joyce.swartzendruber@me.usda.gov* Maryland: Jon Hall, John Hanson Business Center, Suite 301, 339 Busch's Frontage Road, Annapolis, MD 21401-5534; phone:

(410)757-0861 ext. 315; fax:

(410)757-0687; *jon.hall@md.usda.gov* Massachusetts: Christine Clarke, 451 West Street, Amherst, MA 01002-2995; phone:

(413)253-4351; fax:

(413)253-4375; *christine.clarke@ma.usda.gov* . Michigan: Garry Lee, Suite 250, 3001 Coolidge Road, East Lansing, MI 48823-6350; phone:

(517)324-5270; fax:

(517)324-5171; *garry.lee@mi.usda.gov* . Minnesota: William Hunt, Suite 600, 375 Jackson Street, St. Paul, MN 55101-1854; phone:

(651)602-7900; fax:

(651)602-7913 or 7914; *william.hunt@mn.usda.gov* . Mississippi: Homer L. Wilkes, Suite 1321, Federal Building, 100 West Capitol Street, Jackson, MS 39269-1399; phone:

(601)965-5205; fax:

(601)965-4940; *homer.wilkes@ms.nrcs.usda.gov* . Missouri: Roger A. Hansen, Parkade Center, Suite 250, 601 Business Loop 70, West Columbia, MO 65203-2546; phone:

(573)876-0901; fax:

(573)876-0913; *roger.hansen@mo.usda.gov* . Montana: Jeff Burwell, acting, Federal Building, Room 443, 10 East Babcock Street, Bozeman, MT 59715-4704; phone:

(406)587-6811; fax:

(406)587-6761, *jeff.burwell@co.usda.gov* . Nebraska: Stephen K. Chick, Federal Building, Room 152, 100 Centennial Mall, North Lincoln, NE 68508-3866; phone:

(402)437-5300; fax:

(402)437-5327; *steve.chick@ne.usda.gov* . Nevada: Richard Vigil, 1365 Corporate Blvd. Building F, Suite 201, 5301 Longley Lane, Reno, NV 89511-180589502; phone:

(775)784-5863857-8500; fax:

(775)784-5939857-8524; *richard.vigil@nv.usda.gov* . New Hampshire: George W. Cleek, Federal Building, 2 Madbury Road, Durham, NH 03824-2043; phone:

(603)868-7581, ext. 125; fax:

(603)868-5301; *george.cleek@nh.usda.gov* . New Jersey: Thomas Drewes, 220 Davidson Avenue, 4th Floor, Somerset, NJ 08873-3157; phone:

(732)537-6040; fax:

(732)537-6095; *thomas.drewes@nj.usda.gov* . New Mexico: Dennis Alexander, Suite 305, 6200 Jefferson Street, NE., Albuquerque, NM 87109-3734; phone:

(505)761-4400; fax:

(505)761-4481; *dennis.alexander@nm.usda.gov* . New York: Ron Alvarado, Suite 354, 441 South Salina Street, Syracuse, NY 13202-2450; phone:

(315)477-6504; fax:

(315)477-6550; *ron.alvarado@ny.usda.gov* . North Carolina: Mary K. Combs, Suite 205, 4405 Bland Road, Raleigh, NC 27609-6293; phone:

(919)873-2102; fax:

(919)873-2156; *mary.combs@nc.usda.gov* . North Dakota: J.R. Flores, Jr., Room 278, 220 E. Rosser Avenue, Post Office Box 1458, Bismarck, ND 58502-1458; phone:

(701)530-2000; fax:

(701)530-2110; *jr.flores@nd.usda.gov* . Ohio: Terry Cosby, Room 522, 200 North High Street, Columbus, OH 43215-2478; phone:

(614)255-2500; fax:

(614)255-2548; *terry.cosby@oh.usda.gov* . Oklahoma: Ronald L. Hilliard, USDA Agri-Center Building, Suite 206, 100 USDA, Stillwater, Oklahoma 74074-2655; phone:

(405)742-1204; fax:

(405)742-1126; *ron.hilliard@ok.usda.gov* . Oregon: Robert Graham, 1201 NE Lloyd Blvd., Suite 900, Portland, OR 97232; phone:

(503)414-3200; fax:

(503)414-3103; *bob.graham@or.usda.gov* . Pacific Basin: Larry Yamamoto, Director, FHB Building, Suite 301, 400 Route 8, Mongmong, GU 96910; phone:

(671)472-7490; fax:

(671)472-7288; *larry.yamamoto@pb.usda.gov* . Pennsylvania: Craig Derickson, Suite 340, 1 Credit Union Place, Harrisburg, PA 17110-2993; phone:

(717)237-2200; fax:

(717)237-2238; *craig.derickson@pa.usda.gov* . Rhode Island: Roylene Rides at the Door, Suite 46, 60 Quaker Lane, Warwick, RI 02886-0111; phone:

(401)828-1300; fax:

(401)828-0433; *roylene.rides-at-the-door@ri.usda.gov* . South Carolina: Walter W. Douglas, Strom Thurmond Federal Building, Room 950, 1835 Assembly Street, Columbia, SC 29201-2489; phone:

(803)253-3935; fax:

(803)253-3670; *walt.douglas@sc.usda.gov* . South Dakota: Janet L. Oertly, Federal Building, Room 203, 200 Fourth Street, SW., Huron, SD 57350-2475; phone:

(605)352-1200; fax:

(605)352-1288; *janet.oertly@sd.usda.gov* . Tennessee: J. Kevin Brown, 675 U.S. Courthouse, 801 Broadway, Nashville, TN 37203-3878; phone:

(615)277-2531; fax:

(615)277-2578; *kevin.brown@tn.usda.gov* . Texas: Donald W. Gohmert, W.R. Poage Federal Building, 101 South Main Street, Temple, TX 76501-7602; phone:

(254)742-9800; fax:

(254)742-9819; *don.gohmert@tx.usda.gov* . Utah: Sylvia Gillen, W.F. Bennett Federal Building, Room 4402, 125 South State Street, Salt Lake City, UT 84111 or Post Office Box 11350, Salt Lake City, UT 84147-0350, phone:

(801)524-4550, fax:

(801)524-4403; *sylvia.gillen@ut.usda.gov* . Vermont: Judith Doerner, Suite 105, 356 Mountain View Drive, Colchester, VT 05446; phone:

(802)951-6795; fax:

(802)951-6327; *judy.doerner@vt.usda.gov* . Virginia: Jack Bricker, Culpeper Building, Suite 209, 1606 Santa Rosa Road, Richmond, VA 23229-5014; phone:

(804)287-1691; fax:

(804)287-1737; *jack.bricker@va.usda.gov* . Washington: Raymond L. “Gus” Hughbanks, Rock Pointe Tower II, Suite 450, W. 316 Boone Avenue, Spokane, WA 99201-2348; phone:

(509)323-2900; fax:

(509)323-2909; *raymond.hughbanks@wa.usda.gov* . West Virginia: Kevin Wickey, Room 301, 75 High Street, Morgantown, WV 26505; phone:

(304)284-7540; fax:

(304)284-4839; *kevin.wickey@wv.usda.gov* . Wisconsin: Patricia S. Leavenworth, 8030 Excelsior Drive, Suite 200, Madison, WI 53717; phone:

(608)662-4422; fax:

(608)662-4430; *pat.leavenworth@wi.usda.gov* . Wyoming: Xavier Montoya, Federal Building, Room 3124, 100 East B Street, Casper, WY 82601-1911; phone:

(307)261-6453; fax:

(307)261-6490; *xavier.montoya@wy.usda.gov* . [FR Doc. E7-24411 Filed 12-14-07; 8:45 am] BILLING CODE 3410-16-P DEPARTMENT OF COMMERCE International Trade Administration [A-570-892] Carbazole Violet Pigment 23 from the People's Republic of China: Notice of Rescission of Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: December 17, 2007. FOR FURTHER INFORMATION CONTACT: Marin Weaver or Blanche Ziv, AD/CVD Operations, Office 8, Import Administration, Room 1870, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:

(202)482-2336 and

(202)482-4207, respectively. SUPPLEMENTARY INFORMATION: Background On December 1, 2006, the Department of Commerce (“the Department”) published a notice of opportunity to request an administrative review of the antidumping duty order on carbazole violet pigment 23 from the People's Republic of China (“PRC”). *See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review* , 71 FR 69543 (December 1, 2006). On December 29, 2006, Nation Ford Chemical Company and Sun Chemical Company (“Petitioners”) requested that the Department conduct an administrative review of 13 companies, including Trust Chem Co. Ltd. (“Trust Chem”). On January 4, 2007, Trust Chem also requested an administrative review of its exports. The Department published a notice of initiation of the antidumping duty administrative review of carbazole violet pigment 23 from the PRC for the period December 1, 2005, through November 30, 2006, covering the 13 companies. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part* , 72 FR 5005 (February 2, 2007). On May 2 and May 3, 2007, Petitioners withdrew their request for an administrative review of the 12 companies for which they were the sole requestor. On June 25, 2007, the Department published a notice rescinding the review on these 12 companies. *See Carbazole Violet Pigment 23 From the People's Republic of China: Notice of Rescission, in Part, of Antidumping Duty Administrative Review* , 72 FR 34670 (June 25, 2007). Therefore, Trust Chem is the sole party who remained covered by this administrative review. Rescission of Review On November 19, 2007, the Department issued a memorandum stating its intent to rescind the administrative review on Trust Chem because there are no entries on which the Department can assess duties during the POR. See Memorandum regarding, “Intent to Rescind Antidumping Duty Administrative Review on Trust Chem Company Limited for Carbazole Violet Pigment 23 from the People's Republic of China” (November 19, 2007) (“Intent to Rescind Memo”). As stated in the Intent to Rescind Memo, it is the Department's practice not to conduct an administrative review when there are no entries to be reviewed. Furthermore, pursuant to 19 CFR 351.213(d)(3), the Department will rescind an administrative review in whole or with respect to a particular exporter if it concludes that during the POR there were “no entries, exports, or sales of the subject merchandise.” *Id* . For a detailed discussion of the specific reasons the Department is rescinding this review with regard to Trust Chem, which are not subject to public summary, *see* the Intent to Rescind Memo. The Department invited all interested parties to submit comments on its Intent to Rescind Memo, but did not receive any comments. Therefore, based on the Department's practice supported by substantial precedent, the Department is rescinding the review with respect to Trust Chem, pursuant to 19 CFR 351.213(d)(3). 1 1 See e.g., Certain Cut-to-Length Carbon-Quality Steel Products from Italy: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 71 FR 39299, 39302 (July 12, 2006). See also Notice of Final Results of Antidumping Duty Administrative Review: Portable Electric Typewriters from Japan, 56 FR 14072, 14073 (April 5, 1991). Notification Regarding APOs This notice also serves as a reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. 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 terms of an APO is a violation which is subject to sanction. This notice is issued and published in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4). Dated: December 10, 2007. Gary Taverman, Acting Deputy Assistant Secretary for Import Administration. [FR Doc. E7-24368 Filed 12-14-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-570-868] Folding Metal Tables and Chairs from the People's Republic of China: Final Results of Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (“the Department”) published its preliminary results of administrative review of the antidumping duty order on folding metal tables and chairs (“FMTCs”) from the People's Republic of China (“PRC”) on July 11, 2007. The period of review (“POR”) is June 1, 2005, through May 31, 2006. We invited interested parties to comment on our preliminary results. Based on our analysis of the comments received, we have made changes to our margin calculations. Therefore, the final results differ from the preliminary results. The final dumping margins for this review are listed in the “Final Results of Review” section below. EFFECTIVE DATE: December 17, 2007. FOR FURTHER INFORMATION CONTACT: Laurel LaCivita or Charles Riggle, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone

(202)482-4243 or

(202)482-0650, respectively. Background On July 11, 2007, the Department published its preliminary results. 1 On July 31, 2007, Meco Corporation (“Meco”), the petitioner in the underlying investigation, provided additional comments on the appropriate surrogate values to use as a means of valuing the factors of production, including financial statements from Infiniti Modules Pvt. Ltd. (“Infiniti”) and Agew Steel Manufactures Private Limited (“Agew”), Indian producers of merchandise that is identical or comparable to the subject merchandise. On August 3, 2007, Meco requested an extension of the briefing schedule, and on August 7, 2007, the Department denied this request. On August 10, 2007, the Department received a case brief that included a request for a hearing from Meco. On August 13, 2007, the Department received a case brief from Feili Group (Fujian) Co., Ltd. and Feili Furniture Development Limited Quanzhou City (collectively “Feili”). On August 13, 2007, Meco requested an extension to submit its rebuttal brief and on the same day, the Department granted to all parties a seven-day extension to submit rebuttal briefs. On August 22, 2007, Meco, New-Tec Integration Co., Ltd. (“New-Tec”), and Feili submitted rebuttal briefs. On September 27, 2007, Meco withdrew its request for a hearing. On November 6, 2007, the Department extended the time period for completion of the final results until December 7, 2007. 2 1 *See Folding Metal Tables and Chairs from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review* , 72 FR 37703 (July 11, 2007) (“ *Preliminary Results* ”). 2 *See Folding Metal Tables and Chairs from the People's Republic of China: Notice of Extension of Time Limit for the Final Results of the Antidumping Duty Administrative Review* , 72 FR 62628 (November 6, 2007). We have conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (“the Act”), and 19 CFR 351.213. Scope of Order The products covered by this order consist of assembled and unassembled folding tables and folding chairs made primarily or exclusively from steel or other metal, as described below: 1) Assembled and unassembled folding tables made primarily or exclusively from steel or other metal (folding metal tables). Folding metal tables include square, round, rectangular, and any other shapes with legs affixed with rivets, welds, or any other type of fastener, and which are made most commonly, but not exclusively, with a hardboard top covered with vinyl or fabric. Folding metal tables have legs that mechanically fold independently of one another, and not as a set. The subject merchandise is commonly, but not exclusively, packed singly, in multiple packs of the same item, or in five piece sets consisting of four chairs and one table. Specifically excluded from the scope of the order regarding folding metal tables are the following: a. Lawn furniture; b. Trays commonly referred to as “TV trays;” c. Side tables; d. Child-sized tables; e. Portable counter sets consisting of rectangular tables 36” high and matching stools; and, f. Banquet tables. A banquet table is a rectangular table with a plastic or laminated wood table top approximately 28” to 36” wide by 48” to 96” long and with a set of folding legs at each end of the table. One set of legs is composed of two individual legs that are affixed together by one or more cross-braces using welds or fastening hardware. In contrast, folding metal tables have legs that mechanically fold independently of one another, and not as a set. 2) Assembled and unassembled folding chairs made primarily or exclusively from steel or other metal (folding metal chairs). Folding metal chairs include chairs with one or more cross-braces, regardless of shape or size, affixed to the front and/or rear legs with rivets, welds or any other type of fastener. Folding metal chairs include: those that are made solely of steel or other metal; those that have a back pad, a seat pad, or both a back pad and a seat pad; and those that have seats or backs made of plastic or other materials. The subject merchandise is commonly, but not exclusively, packed singly, in multiple packs of the same item, or in five piece sets consisting of four chairs and one table. Specifically excluded from the scope of the order regarding folding metal chairs are the following: a. Folding metal chairs with a wooden back or seat, or both; b. Lawn furniture; c. Stools; d. Chairs with arms; and e. Child-sized chairs. The subject merchandise is currently classifiable under subheadings 9401.71.0010, 9401.71.0030, 9401.79.0045, 9401.79.0050, 9403.20.015, 9403.20.0030, 9403.70.8010, 9403.70.8020, and 9403.70.8030 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise is dispositive. Based on a request by RPA International Pty., Ltd. and RPS, LLC, the Department ruled on January 13, 2003, that poly-fold metal folding chairs are within the scope of the order. On May 5, 2003, in response to a request by Staples, the Office Superstore Inc. (“Staples”), the Department issued a scope ruling that the chair component of Staples' “Complete Office-To-Go,” a folding chair with a tubular steel frame and a seat and back of plastic, with measurements of: height: 32.5 inches; width: 18.5 inches; and depth: 21.5 inches, is covered by the scope of the order. On September 7, 2004, the Department found that table styles 4600 and 4606 produced by Lifetime Plastic Products Ltd. are within the scope of the order. On July 13, 2005, the Department issued a scope ruling determining that “butterfly” chairs are excluded from the scope of the antidumping duty order. Butterfly chairs are described as consisting of a collapsible metal rod frame and a cover, such that when the chair frame is spread open, the pockets of the cover are slipped over the upper ends of the frame and the cover provides both the seating surface and back of the chair. The frame consists of eight s-shaped pieces (with the ends offset at almost a 90-degree angle) made from metal rods that are connected by hinges. In order to collapse the frame, the chair cover must be removed. The frame is collapsed by moving the four legs inward until they meet in the center, similar to the folding mechanism of a pocket umbrella. On July 13, 2005, the Department issued a scope ruling determining that folding metal chairs, with wooden seats that have been padded with foam and covered with fabric or polyvinyl chloride and attached to the tubular steel seat frame with screws, are within the scope of the antidumping duty order. On May 1, 2006, the Department issued a scope ruling determining that “moon chairs” are not included within the scope of the antidumping duty order. Moon chairs are described as containing circular, fabric-padded, concave cushions that envelop the user at approximately a 105-degree reclining angle. The fabric cushion is ringed and supported by two curved 16-mm steel tubes. The cushion is attached to this ring by nylon fabric. The cushion is supported by a 16-mm steel tube four-sided rectangular cross-brace mechanism that constitutes the moon chair's legs. This mechanism supports and attaches to the encircling tubing and enables the moon chair to be folded. To fold the chair, the user pulls on a fabric handle in the center of the seat cushion of the chair. On October 4, 2007, the Department issued a scope ruling determining that International E-Z Up Inc.'s (“E-Z Up”) Instant Work Bench is not included within the scope of the antidumping duty order because its legs and weight do not match the description of the folding metal tables in the scope of the FMTCs order or *Certain Folding Metal Tables and Chairs from China* ; USITC Pub. 3515 at I-3, 731-TA-932 (Final), (June 2002) (“ *ITC Final Report* ”). E-Z Up describes the Instant Work Bench as a personal project center that is permanently mounted on a wall. E-Z Up states that the physical characteristics of the Instant Work Bench include a plastic table top measuring 60.25 inches in width and 24.5 inches in depth, four steel legs with two legs attached to a wall, a metallic coated peg board extending vertically from the intersection of the back legs and the table top, and two sliding reinforced steel drawers located below the plastic bench. E-Z Up adds that the back two legs are connected to each other by a steel frame that consists of two cross-bars and five vertical bars. E-Z Up also states that the Instant Work Bench weighs 70.7 pounds, of which 54.7 percent is steel, and measures 60 inches in height from the top of the peg board to the floor. 3 3 *See* “Final Scope Ruling of the Antidumping Duty Order on Folding Metal Tables and Chairs from the People's Republic of China (A-570-868); E-Z Up's Instant Work Bench” (October 4, 2007). Analysis of Comments Received All issues raised in the post-preliminary comments by parties in this review are addressed in the memorandum from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David M. Spooner, Assistant Secretary for Import Administration, “Issues and Decision Memorandum for the 2005-2006 Administrative Review of Folding Metal Tables and Chairs from the People's Republic of China” (December 7, 2007) (“Issues and Decision Memorandum”), which is hereby adopted by this notice. A list of the issues that parties raised and to which we responded in the Issues and Decision Memorandum is attached to this notice as an appendix. The Issues and Decision Memorandum is a public document and is on file in the Central Records Unit (“CRU”) in room B-099 in the main Department building, and is also accessible on the Web at *http://ia.ita.doc.gov/frn* . The paper copy and electronic version of the memorandum are identical in content. Changes Since the Preliminary Results Based on our analysis of comments received, we have made changes in the margin calculations for Feili and New-Tec. 4 4 *See* Issues and Decision Memorandum, at Comments 1-16. b. Feili and New-Tec • We calculated the surrogate financial ratios using financial statements of two companies, Godrej & Boyce, Manufacturing Co. Ltd. (“Godrej”) and Infiniti. 5 5 *See* Comment 1 of the Issues and Decision Memorandum and the Memorandum to Wendy J. Frankel, Director, AD/CVD Operations, Office 8, “Final Results of the 2005-2006 Administrative Review of Folding Metal Tables and Chairs from the People's Republic of China: Surrogate Value Memorandum,” (December 7, 2007) (“Final Surrogate Value Memorandum”), at 1, and Attachment XIII. Feili • We revised the calculation of the market-economy purchase price for rivets to exclude the total quantity and value of powder coating from the calculations. 6 6 *See* Comment 7 of the Issues and Decision Memorandum and Memorandum to the File “Analysis for the Final Results of the 2005-2006 Administrative Review of Folding Metal Tables and Chairs from the People's Republic of China: Feili Furniture Development Limited Quanzhou City, Feili Furniture Development Co., Ltd., Feili Group (Fujian) Co., Ltd., Feili (Fujian) Co., Ltd. (collectively, “Feili”)” (December 7, 2007) (“Feili Final Analysis Memorandum”), at 2, and Attachments I and II. • We revised the calculation of normal value (“NV”) to eliminate fiberboard as a packing material. 7 7 *See* Comment 8 of the Issues and Decision Memorandum, and Feili Final Analysis Memorandum, at 2, and Attachments I and IV. • We revised the calculation of NV to exclude packing labor from the cost of manufacturing and include it in the calculation of packing. 8 8 *See* Comment 9 of the Issues and Decision Memorandum, and Feili Final Analysis Memorandum, at 3, and Attachments III and IV. • We revised the sample interspersion check to exclude from the margin analysis program only those transactions that had not been previously made in commercial quantities to the same customer. 9 9 *See* Comment 11 of the Issues and Decision Memorandum, and Feili Final Analysis Memorandum, at 3, and Attachments IV and V. Final Results of Review We determine that the following dumping margins exist for the period June 1, 2005, through May 31, 2006: Exporter/Manufacturer Weighted-Average Margin Percentage Feili* 0.02 New-Tec 1.50 *This rate is *de minimis* . Assessment Rates The Department intends to issue assessment instructions to U.S. Customs and Border Protection 15 days after the date of publication of these final results of administrative review. Cash-Deposit Requirements The following cash-deposit requirements will be effective upon publication of these final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Tariff Act of 1930, as amended (“the Act”):

(1)for subject merchandise exported by Feili, the final weighted-average margin is below *de minimis* ; therefore, no cash deposit of estimated antidumping duties will be required. However, for subject merchandise exported by New-Tec, the cash-deposit rate will be that established in the final results of review;

(2)for previously reviewed or investigated exporters not listed above that have separate rates, the cash-deposit rate will continue to be the exporter-specific rate published for the most recent period;

(3)for all PRC exporters of subject merchandise, which have not been found to be entitled to a separate rate, the cash-deposit rate will be the PRC-wide rate of 70.71 percent; and

(4)for all non-PRC exporters of subject merchandise that have not received their own rate, the cash-deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These deposit requirements shall remain in effect until further notice. Notification to Interested Parties This notice 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 the review period. Pursuant to 19 CFR 351.402(f)(3), failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties. This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO as explained in the administrative protective order itself. 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. This notice of the final results of this administrative review is issued and published in accordance with sections 751(a)(1) and 777(i) of the Act. Dated: December 7, 2007. David M. Spooner, Assistant Secretary for Import Administration. Appendix List of Comments and Issues in the Issues and Decision Memorandum *Comment 1:* Surrogate Financial Statements *Comment 2:* Potential Calculation Adjustments to Infiniti's Financial Statements *Comment 3:* Allocation of Direct Labor Hours for Feili *Comment 4:* Allocation of Electricity for Feili *Comment 5:* Suspension of Liquidation of Tables with Legs Connected by a Cross-Bar *Comment 6:* Revocation of the Order *Comment 7:* Market-Economy Price for Rivets *Comment 8:* Fiberboard Consumption *Comment 9:* Packing Labor *Comment 10:* Zero-Priced Transactions *Comment 11:* Zero-Priced Transactions not Previously Sold in Commercial Quantities *Comment 12:* Shipping Costs for Zero-Priced Transactions *Comment 13:* Negative Values for Importer-Specific Assessment Rates *Comment 14:* The Treatment of Origin Receiving Charges (“ORC”) and automated-manifest-system charges (“AMS”) *Comment 15:* Adjustments for Materials That Were Provided Free-of-Charge *Comment 16:* Offsetting Dumped Sales with “Non-Dumped” Sales (“Zeroing”) [FR Doc. E7-24366 Filed 12-14-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-485-806] Certain Hot-Rolled Carbon Steel Flat Products from Romania: Final Results of Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On August 9, 2007, the Department of Commerce published the preliminary results of the administrative review of the antidumping duty order on certain hot-rolled carbon steel flat products from Romania. This review covers sales of subject merchandise made by Mittal Steel Galati S.A. The period of review is November 1, 2005, through October 31, 2006. Based on our analysis of comments received, we have made a change to our calculations; this change did not result in a change to the margin for Mittal Steel Galati S.A. Therefore, these final results are identical to our preliminary results. The final results are listed below in the “Final Results of Review” section. EFFECTIVE DATE: (December 17, 2007. FOR FURTHER INFORMATION CONTACT: Dave Dirstine or Richard Rimlinger, AD/ CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:

(202)482-4033 and

(202)482-4477, respectively. SUPPLEMENTARY INFORMATION: Background On August 9, 2007, the Department of Commerce (the Department) published the preliminary results of the antidumping duty administrative review of certain hot-rolled carbon steel flat products from Romania ( *Certain Hot-Rolled Carbon Steel Flat Products From Romania: Preliminary Results of the Antidumping Duty Administrative Review* , 72 FR 44821 (August 9, 2007) ( *Preliminary Results* )). The review covers one manufacturer, Mittal Steel Galati S.A. (MS Galati). We invited parties to comment on our preliminary results of review. MS Galati and one domestic interested party, United States Steel Corporation, filed case briefs on September 12, 2007. MS Galati and two domestic interested parties, United States Steel Corporation and Nucor Corporation, filed rebuttal briefs on September 19, 2007. On October 31, 2007, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act), the International Trade Commission determined that revocation of the antidumping duty order on certain hot-rolled carbon steel flat products from Romania would not be likely to lead to continuation or recurrence of material injury. See *Hot Rolled Steel Products from Argentina, China, India, Indonesia, Kazakhstan, Romania, South Africa, Taiwan, Thailand, and Ukraine* , 72 FR 61676 (October 31, 2007), and USITC Publication 3956 (October 2007), entitled *Hot Rolled Steel Products from Argentina, China, India, Indonesia, Kazakhstan, Romania, South Africa, Taiwan, Thailand, and Ukraine: Investigation Nos. 701 TA 404 408 and 731 TA 898 902 and 904- 908* (Review). As a result of this determination, the Department revoked the antidumping duty order on certain hot-rolled carbon steel flat products from Romania, effective as of November 29, 2006. See *Certain Hot-Rolled Carbon Steel Flat Products from Argentina, Kazakhstan, Romania, and South Africa: Revocation of Antidumping Duty and Countervailing Duty Orders* , 72 FR 65293 (November 20, 2007). Scope of the Order The products covered by the order are certain hot-rolled carbon steel flat products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers), regardless of thickness, and in straight length, of a thickness of less than 4.75 mm and of a width measuring at least 10 times the thickness. Universal mill plate ( *i.e.* , flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 mm, but not exceeding 1250 mm, and of a thickness of not less than 4.0 mm, not in coils and without patterns in relief) of a thickness not less than 4.0 mm is not included within the scope of this order. Specifically included within the scope of this order are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy

(HSLA)steels, and the substrate for motor lamination steels. IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium or niobium (also commonly referred to as columbium), or both, added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum. Steel products to be included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products in which:

(i)Iron predominates, by weight, over each of the other contained elements;

(ii)the carbon content is 2 percent or less, by weight; and

(iii)none of the elements listed below exceeds the quantity, by weight, respectively indicated: 1.80 percent of manganese, 2.25 percent of silicon, 1.00 percent of copper, 0.50 percent of aluminum, 1.25 percent of chromium, 0.30 percent of cobalt, 0.40 percent of lead, 1.25 percent of nickel, 0.30 percent of tungsten, 0.10 percent of molybdenum, 0.10 percent of niobium, 0.15 percent of vanadium or 0.15 percent of zirconium. All products that meet the physical and chemical description provided above are within the scope of this order unless otherwise excluded. The following products, by way of example, are outside or specifically excluded from the scope of this order: Alloy hot-rolled steel products in which at least one of the chemical elements exceeds those listed above (including, e.g., American Society for Testing and Materials

(ASTM)specifications A543, A387, A514, A517, A506); Society of Automotive Engineers (SAE)/American Iron & Steel Institute

(AISI)grades of series 2300 and higher; ball bearing steels, as defined in the HTSUS; tool steels, as defined in the HTSUS; silicomanganese (as defined in the HTSUS) or silicon electrical steel with a silicon level exceeding 2.25 percent; ASTM specifications A710 and A736; USS abrasion-resistant steels (USS AR 400, USS AR 500); all products (proprietary or otherwise) based on an alloy ASTM specification (sample specifications: ASTM A506, A507); non-rectangular shapes, not in coils, which are the result of having been processed by cutting or stamping and which have assumed the character of articles or products classified outside chapter 72 of the HTSUS. The merchandise subject to this order is classified in the HTSUS at the following subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Certain hot-rolled carbon steel flat products covered by this order, including vacuum degassed fully stabilized, high strength low alloy, and the substrate for motor lamination steel, may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this proceeding is dispositive. Analysis of Comments Received All issues raised in the case and rebuttal briefs by parties to this 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 December 7, 2007, which is hereby adopted by this notice. A list of the issues which the parties have raised and to which we have responded is attached to this notice as an appendix. Parties can find a complete discussion of all issues raised in this review and corresponding recommendations in this public memorandum which is on file in Import Administration's Central Records Unit, Room B-099 of the main Department building. In addition, a complete version of the Decision Memorandum is available on the Internet at http://ia ita.doc.gov/frn/index.html. The paper copy and electronic version of the Decision Memorandum are identical in content. Changes Since the Preliminary Results Based on our analysis of comments received, we have made a methodological change to our calculations as reflected in our *Preliminary Results* (see Comment 1 of the Decision Memorandum). Final Results of Review As a result of our review, we determine that the following weighted-average percentage margin exists for the period November 1, 2005, through October 31, 2006: Manufacturer/exporter Margin (percent) Mittal Steel Galati S.A. 11.02 Assessment Rate The Department will determine, and U.S. Customs and Border Protection

(CBP)shall assess, antidumping duties on all appropriate entries. We intend to issue appropriate assessment instructions directly to CBP 15 days after publication of these final results of review. In accordance with 19 CFR 351.212(b)(1), we have calculated an importer-specific assessment rate by dividing the total dumping duties due by the entered value of sales we analyzed. We will direct CBP to liquidate the appropriate entries at this rate. See 19 CFR 351.212(b)(1). The Department clarified its “automatic assessment” regulation on May 6, 2003 (68 FR 23954). This clarification will apply to entries of subject merchandise during the period of review produced by the company included in these final results of review for which the reviewed company 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 Because the Department has revoked the order as discussed in the Background section, there will be no cash-deposit requirements for entries of this merchandise on or after November 29, 2006. Notification This notice also serves as the final reminder to importers of their responsibility under 19 CFR 351.402(f) 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. This notice also serves as the only reminder to parties subject to administrative protective order

(APO)of their responsibility concerning the return/destruction or conversion to judicial protective order of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO. These final results of review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: December 7, 2007. David M. Spooner, Assistant Secretary for Import Administration. Appendix *Comment 1:* Date of Sale *Comment 2:* Offsetting of Negative Margins [FR Doc. E7-24279 Filed 12-14-07; Billing Code: 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-401-806] Notice of Extension of Time Limit for Final Results of Antidumping Duty Administrative Review: Stainless Steel Wire Rod from Sweden AGENCY: Import Administration, International Trade Administration, U.S. Department of Commerce. EFFECTIVE DATE: December 17, 2007. FOR FURTHER INFORMATION CONTACT: Brian Smith or Gemal Brangman, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14 th Street and Constitution Avenue, NW, Washington, D.C., 20230; telephone:

(202)482-1766 or

(202)482-3773, respectively. SUPPLEMENTARY INFORMATION: Background On September 7, 2007, the Department of Commerce (“the Department”) published in the **Federal Register** the preliminary results of the administrative review of the antidumping duty order on stainless steel wire rod from Sweden, covering the period September 1, 2005, through August 31, 2006. *See Stainless Steel Wire Rod from Sweden: Preliminary Results of Antidumping Duty Administrative Review* , 72 FR 51411 (September 7, 2007). The current deadline for the final results in this review is January 5, 2008. Extension of Time Limits for Final Results of Review Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to issue the final results of the administrative review of an antidumping duty order within 120 days after the date on which the preliminary results are published in the **Federal Register** . However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the final results to 180 days from the date of publication of the preliminary results. The Department finds that it is not practicable to complete the final results of the administrative review of stainless steel wire rod from Sweden within the current time frame because the Department requires more time to fully analyze the arguments and comments received from the parties participating in this review with respect to the product comparison criteria currently being used in this case. Therefore, in accordance with section 751(a)(3)(A) of the Act, the Department is extending the time for completion of the final results of this review until March 5, 2008, which is 180 days after the date on which notice of the preliminary results was published in the **Federal Register** . We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777 (i)(1) of the Act. Dated: December 11, 2007. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E7-24375 Filed 12-14-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration Application for Duty-Free Entry of Scientific Instrument Pursuant to Section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States. Comments must comply with 15 CFR 301.5(a)(3) and

(4)of the regulations and be filed within 20 days with the Statutory Import Programs Staff, U.S. Department of Commerce, Room 2104, 14th and Constitution Avenue NW, Washington, D.C. 20230. Applications may be examined between 8:30 A.M. and 5:00 P.M. in Room 2104, at the above address. *Docket Number: 07-070* . Applicant: State University of New York at Binghamton, 4400 Vestal Parkway East, Binghamton, NY 13902. Instrument: Scanning Acoustic Microscope. Manufacturer: Klaus Pintsch, Inc., Germany. Intended Use: The instrument is intended to be used as a research tool for professors and graduate student level researchers. The research is to advance the science and engineering behind modern electronics packaging practices and to develop new packaging paradigms. Research is underway in all areas of packaging, solders, board and package construction, chip joining, roll to roll manufacturing and even fabricating active devices on flexible substrates. The instrument provides a nondestructive means to see into packages and examine the bonding layers and interfaces. Having a spatial resolution of .5 micron or less is a critical parameter because it is one of the factors that determines the minimum feature size that can be detected and imaged. Application accepted by Commissioner of Customs: November 7, 2007. Dated: December 7, 2007. Faye Robinson, Director, Statutory Import Programs Staff, Import Administration. [FR Doc. E7-24278 Filed 12-14-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration Applications for Duty-Free Entry of Scientific Instruments Pursuant to Section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States. Comments must comply with 15 CFR 301.5(a)(3) and

(4)of the regulations and be postmarked on or before January 7, 2008. Address written comments to Statutory Import Programs Staff, Room 2104, U.S. Department of Commerce, Washington, D.C. 20230. Applications may be examined between 8:30 A.M. and 5:00 P.M. at the U.S. Department of Commerce in Room 2104. *Docket Number: 07-068* . Applicant: University of Utah, 201 S. President's Circle, Salt Lake City, UT 84112. Instrument: Electron Microscope, Model Nova NanoSEM 430. Manufacturer: FEI Company, Czech Republic. Intended Use: The instrument is intended to be used for the imaging of nanoparticles as well as chemical characterization of a wide variety of materials. The instrument will also be used to measure the size and chemical composition of nanoparticles and nanostructures and to create nanostructures using electron beam lithography. The objectives of the experiments will be to characterize the size and shapes of nanoparticles, nantubes and nanowires and determine the chemical composition of clays and other mineralogical samples. Application accepted by Commissioner of Customs: November 13, 2007. *Docket Number: 07-069* . Applicant: The Children's Hospital, 1056 E. 19th Ave., Denver, CO 80218. Instrument: Electron Microscope, Model H-7650. Manufacturer: Hitachi High-Technologies Corporation, Japan. Intended Use: The instrument will be used in the anatomical pathology laboratory to evaluate various human tissues, aiding in diagnostic interpretations. Application accepted by Commissioner of Customs: November 6, 2007. Dated: December 7, 2007. Faye Robinson, Director, Statutory Import Programs Staff. [FR Doc. E7-24277 Filed 12-14-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [C-570-913] Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (the Department) preliminarily determines that countervailable subsidies are being provided to producers and exporters of certain new pneumatic off-the-road tires (OTR tires) from the People's Republic of China (PRC). For information on the estimated subsidy rates, *see* the “Suspension of Liquidation” section of this notice. Interested parties are invited to comment on this preliminary determination. *See* “Disclosure and Public Comment” section below for procedures on filing comments. EFFECTIVE DATE: December 17, 2007. FOR FURTHER INFORMATION CONTACT: Mark Hoadley, Jun Jack Zhao, or Nicholas Czajkowski, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:

(202)482-3148,

(202)482-1396, and

(202)482-1395, respectively. SUPPLEMENTARY INFORMATION: Case History The following events have occurred since the publication of the Department's notice of initiation in the **Federal Register** . *See Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Initiation of Countervailing Duty Investigation* , 72 FR 44122 (August 7, 2007) ( *Initiation Notice* ). On August 17, 2007, the Department selected, as mandatory respondents, the three largest Chinese producers/exporters of OTR tires that could reasonably be examined: Guizhou Tire Co., Ltd. (Guizhou Tire), Hebei Starbright Tire Co., Ltd. (Starbright), and Tianjin United Tire & Rubber International Co., Ltd. (TUTRIC). *See* Memorandum to Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, “Respondent Selection” (August 17, 2007). This memorandum is on file in the Department's Central Records Unit in Room B-099 of the main Department building (CRU). On that same day, we issued a countervailing duty

(CVD)questionnaire to the Government of the People's Republic of China (GOC), requesting the GOC forward the company sections of the questionnaire to the mandatory respondents. On August 27, 2007, the International Trade Commission

(ITC)issued its affirmative preliminary determination that there is a reasonable indication that an industry in the United States is materially injured by reason of allegedly subsidized imports of OTR tires from China. *See Certain Off-the-Road Tires From China* , Investigation Nos. 701-TA-448 and 731-TA-1117 (Preliminary), 72 FR 50699 (September 4, 2007). On September 17, 2007, we published a postponement of the preliminary determination of this investigation until December 7, 2007. *See Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: Postponement of Preliminary Determination in the Countervailing Duty Investigation* , 72 FR 52859 (September 17, 2007). On August 20, 2007, Aeolus Tyre Co., Ltd. (Aeolus) submitted a request to be a voluntary respondent in this investigation; on September 20, 2007, Aeolus renewed its request to be a conditional voluntary respondent. Aeolus' request was conditioned on certain eventualities, such as being selected as a respondent in the accompanying antidumping investigation, which it was not. On September 24, 2007, petitioners submitted comments to the Department arguing we should reject Aeolus's request to be a voluntary respondent. On October 3, Aeolus withdrew its request. On October 5, 2007, we initiated an investigation of several new subsidy allegations. *See* Memorandum to the File, “Countervailing Duty Investigation on Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: Initiation Analysis for New Subsidy Allegations” (October 5, 2007). The allegations were submitted on August 24 by Titan Tire Corporation and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union, AFL-CIO-CLC (collectively, petitioners) and on September 5 by Bridgestone Americas Holding, Inc. and its subsidiary, Bridgestone Firestone North America Tire, LLC (collectively, Bridgestone), a U.S. domestic producer of OTR tires. 1 Petitioners submitted additional information supporting their new allegations on September 5; Bridgestone submitted additional information supporting its new allegation on September 19 and October 1. On September 21 and September 26, the GOC, Starbright and TUTRIC submitted comments on these new subsidy allegations. On October 5, we issued questionnaires concerning these new allegations to the GOC and the mandatory respondents. 1 Since Bridgestone is a U.S. producer, it meets the definition of interested party as set forth in section 771(9) of the Tariff Act of 1930, as amended (the Act). On October 15, 2007, we received responses to our initial questionnaire from the GOC, Guizhou Tire, Starbright, and TUTRIC. On October 19 and 22, Bridgestone submitted comments regarding the questionnaire responses from the GOC, Guizhou Tire, Starbright, and TUTRIC; also on October 22 and 23, petitioners submitted comments regarding the questionnaire responses from the GOC, Guizhou Tire, Starbright, and TUTRIC. On October 29, we received responses to our questionnaires concerning the new subsidy allegations from the GOC, Guizhou Tire, Starbright, and TUTRIC. On November 1, 2 and 5, Bridgestone submitted comments regarding the new subsidy allegation questionnaire responses from the GOC, Guizhou Tire, Starbright, and TUTRIC; and on November 2 and 5, petitioners submitted comments regarding the new subsidy allegation questionnaire responses from the GOC, Guizhou Tire, Starbright, and TUTRIC. Supplemental questionnaires regarding all these submissions were issued to Guizhou Tire, Starbright, and TUTRIC on November 9, and to the GOC on November 14. We received responses on November 27, 2007. In our initial questionnaire, we asked for information concerning alleged subsidies received during the period 1993 through the POI (based on our finding in accordance with section 351.524(d)(2) that the average useful life

(AUL)of assets used in producing OTR Tires was 14 years). In our supplemental questionnaires, we limited our inquiry to subsidies received during or after 2001, pursuant to a recent preliminary determination that December 11, 2001 (the date on which the PRC became a WTO member) was the uniform date from which the Department will identify and measure subsidies for purposes of the CVD law. 2 However, given that the final determination regarding this uniform date will not be issued before March 18, 2008, the Department, on November 21, informed the GOC and the three OTR tire respondents that information was required for all non-recurring subsidies received during the AUL. The deadline for submitting information concerning pre-2001 subsidies is currently December 12, 2007. 2 *Circular Welded Carbon Quality Steel Pipe from the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination; Preliminary Affirmative Determination of Critical Circumstances; and Alignment of Final Countervailing Duty Determination with Final Antidumping Duty Determination* , 72 FR 63875, 63880 (November 13, 2007) ( *CWP Preliminary* ) On November 14, 2007, the Department initiated an investigation of an additional new subsidy allegation pertaining only to Guizhou Tire, pursuant to information submitted by petitioners on October 23 and additional information on November 2. *See Countervailing Duty Investigation of Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: Initiation Analysis for New Subsidy Allegation* (November 14, 2007). On that same day, November 14, we also issued a questionnaire concerning this allegation to the GOC and Guizhou Tire. The deadline for responding to this questionnaire is currently December 10, 2007. We intend to issue an interim analysis describing our preliminary findings with respect to this program before the final determination so that parties will have the opportunity to comment on our findings before the final determination. On November 9, 2007, petitioners submitted comments on loan benchmarks. On November 28, 29 and 30, respectively, Bridgestone, petitioners and the GOC submitted pre-preliminary comments. On December 4, Starbright and TUTRIC submitted pre-preliminary comments. On December 5, Starbright submitted additional pre-preliminary comments. Scope of the Investigation The products covered by the scope of this investigation are new pneumatic tires designed for off-the-road

(OTR)and off-highway use, subject to exceptions identified below. Certain OTR tires are generally designed, manufactured and offered for sale for use on off-road or off-highway surfaces, including but not limited to, agricultural fields, forests, construction sites, factory and warehouse interiors, airport tarmacs, ports and harbors, mines, quarries, gravel yards, and steel mills. The vehicles and equipment for which certain OTR tires are designed for use include, but are not limited to:

(1)agricultural and forestry vehicles and equipment, including agricultural tractors, 3 combine harvesters, 4 agricultural high clearance sprayers, 5 industrial tractors, 6 log-skidders, 7 agricultural implements, highway-towed implements, agricultural logging, and agricultural, industrial, skid-steers/mini-loaders; 8

(2)construction vehicles and equipment, including earthmover articulated dump products, rigid frame haul trucks, 9 front endloaders, 10 dozers, 11 lift trucks, straddle carriers, 12 graders, 13 mobile cranes, compactors; and

(3)industrial vehicles and equipment, including smooth floor, industrial, mining, counterbalanced lift trucks, industrial and mining vehicles other than smooth floor, skid-steers/mini-loaders, and smooth floor off-the-road counterbalanced lift trucks. 14 The foregoing list of vehicles and equipment generally have in common that they are used for hauling, towing, lifting, and/or loading a wide variety of equipment and materials in agricultural, construction and industrial settings. The foregoing descriptions are illustrative of the types of vehicles and equipment that use certain OTR tires, but are not necessarily all-inclusive. While the physical characteristics of certain OTR tires will vary depending on the specific applications and conditions for which the tires are designed ( *e.g.* , tread pattern and depth), all of the tires within the scope have in common that they are designed for off-road and off-highway use. Except as discussed below, OTR tires included in the scope of the petitions range in size (rim diameter) generally but not exclusively from 8 inches to 54 inches. The tires may be either tube-type or tubeless, radial or non-radial, and intended for sale either to original equipment manufacturers or the replacement market. The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 4011.20.10.25, 4011.20.10.35, 4011.20.50.30, 4011.20.50.50, 4011.61.00.00, 4011.62.00.00, 4011.63.00.00, 4011.69.00.00, 4011.92.00.00, 4011.93.40.00, 4011.93.80.00, 4011.94.40.00, and 4011.94.80.00. While HTSUS subheadings are provided for convenience and Customs purposes, our written description of the scope is dispositive. 3 Agricultural tractors are four-wheeled vehicles usually with large rear tires and small front tires that are used to tow farming equipment. 4 Combine harvesters are used to harvest crops such as corn or wheat. 5 Agricultural sprayers are used to irrigate agricultural fields 6 Industrial tractors are four-wheeled vehicles usually with large rear tires and small front tires that are used to tow industrial equipment. 7 A log skidder has a grappling lift arm that is used to grasp, lift and move trees that have been cut down to a truck or trailer for transport to a mill or other destination. 8 Skid-steer loaders are four-wheel drive vehicles with the left-side drive wheels independent of the right-side drive wheels and lift arms that lie alongside the driver with the major pivot points behind the driver's shoulders. Skid-steer loaders are used in agricultural, construction and industrial settings. 9 Haul trucks, which may be either rigid frame or articulated ( *i.e.* , able to bend in the middle) are typically used in mines, quarries and construction sites to haul soil, aggregate, mined ore, or debris. 10 Front loaders have lift arms in front of the vehicle. It can scrape material from one location to another, carry material in its bucket or load material into a truck or trailer. 11 A dozer is a large four-wheeled vehicle with a dozer blade that is used to push large quantities of soil, sand, rubble, etc., typically around construction sites. They can also be used to perform “rough grading” in road construction. 12 A straddle carrier is a rigid frame, engine-powered machine that is used to load and offload containers from container vessels and load them onto (or off of) tractor trailers. 13 A grader is a vehicle with a large blade used to create a flat surface. Graders are typically used to perform “finish grading.” Graders are commonly used in maintenance of unpaved roads and road construction to prepare the base course onto which asphalt or other paving material will be laid. 14 A counterbalanced lift truck is a rigid frame, engine-powered machine with lift arms that has additional weight incorporated into the back of the machine to offset or counterbalance the weight of loads that it lifts so as to prevent the vehicle from overturning. An example of a counterbalanced lift truck is a counterbalanced fork lift truck. Counterbalanced lift trucks may be designed for use on smooth floor surfaces, such as a factory or warehouse, or other surfaces, such as construction sites, mines, *etc* . Specifically excluded from the scope are new pneumatic tires designed, manufactured and offered for sale primarily for on-highway or on-road use, including passenger cars, race cars, station wagons, sport utility vehicles, minivans, mobile homes, motorcycles, bicycles, on-road or on-highway trailers, light trucks, and trucks and buses. Such tires generally have in common that the symbol “DOT” must appear on the sidewall, certifying that the tire conforms to applicable motor vehicle safety standards. Such excluded tires may also have the following designations that are used by the Tire and Rim Association: Prefix letter designations: • P - Identifies a tire intended primarily for service on passenger cars; • LT - Identifies a tire intended primarily for service on light trucks; and, • ST - Identifies a special tire for trailers in highway service. Suffix letter designations: • TR - Identifies a tire for service on trucks, buses, and other vehicles with rims having specified rim diameter of nominal plus 0.156” or plus 0.250”; • MH - Identifies tires for Mobile Homes; • HC - Identifies a heavy duty tire designated for use on “HC” 15” tapered rims used on trucks, buses, and other vehicles. This suffix is intended to differentiate among tires for light trucks, and other vehicles or other services, which use a similar designation. Example: 8R17.5 LT, 8R17.5 HC; • LT - Identifies light truck tires for service on trucks, buses, trailers, and multipurpose passenger vehicles used in nominal highway service; and • MC - Identifies tires and rims for motorcycles. The following types of tires are also excluded from the scope: pneumatic tires that are not new, including recycled or retreaded tires and used tires; non-pneumatic tires, including solid rubber tires; tires of a kind used on aircraft, all-terrain vehicles, and vehicles for turf, lawn and garden, golf and trailer applications; and, tires of a kind used for mining and construction vehicles and equipment that have a rim diameter equal to or exceeding 39 inches. Such tires may be distinguished from other tires of similar size by the number of plies that the construction and mining tires contain (minimum of 16) and the weight of such tires (minimum 1500 pounds). Scope Comments In accordance with the preamble to the Department's regulations, in our *Initiation Notice* we set aside a period of time for parties to raise issues regarding product coverage, and encouraged all parties to submit comments within 20 calendar days of publication of the *Initiation Notice* . *See Antidumping Duties; Countervailing Duties* , 62 FR 27296, 27323 (May 19, 1997) ( *Preamble* ) and *Initiation Notice* , 72 FR at 41222. On August 20, 2007, the following parties submitted comments concerning both the scope of this investigation and the identical scope of the companion antidumping duty investigation: Petitioners, Bridgestone, Carlisle Tire and Wheel Company, Guizhou Tire, and Valmont Industries, Inc. On August 21, comments on the scope were submitted to both records by Agri-Fab, Inc. On August 27, rebuttal comments were filed on both records by petitioners, Bridgestone, and Guizhou Tire. The Department will address the issues raised by these parties with regard to both investigations in the preliminary determination of the antidumping duty investigation currently scheduled for February 5, 2008. Application of the Countervailing Duty Law to Imports from the PRC On October 25, 2007, the Department published *Coated Free Sheet Paper from the People's Republic of China: Final Affirmative Countervailing Duty Determination* , 72 FR 60645 (October 25, 2007) and the accompanying *Issues and Decision Memorandum* ( *CFS Final* ). In that determination, the Department found that “given the substantial differences between the Soviet-style economies and the PRC's economy in recent years, the Department's previous decision not to apply the CVD law to these Soviet-style economies does not act as a bar to proceeding with a CVD investigation involving products from China.” *See CFS Final* at Comment 6. This decision was also affirmed in three recent preliminary determinations. *See CWP Preliminary* , 72 FR at 63880, *Laminated Woven Sacks from the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination; Preliminary Affirmative Determination of Critical Circumstances; and Alignment of Final Countervailing Duty Determination with Final Antidumping Duty Determination* , 72 FR 67893 (December 3, 2007) ( *LWS Preliminary* ), and *Light-walled Rectangular Pipe and Tube from the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Countervailing Duty Determination with Final Antidumping Duty Determination* , 72 FR 67703 (November 30, 2007). For the reasons stated in *CWP Preliminary* , we are using the date of December 11, 2001, the date on which the PRC became a member of the WTO, as the date from which the Department will identify and measure subsidies in the PRC for purposes of this preliminary determination. *Id* . As explained in *CWP Preliminary* , prior to December 11, 2001, there were many changes in the PRC's economy. Many of the obligations undertaken by the PRC pursuant to its accession to the WTO were in line with the PRC's objective of economic reform. *See* , *e.g.* , Report of the Working Party on the Accession of China, WT/ACC/CHN/49 (October 1, 2001) at paragraph 4 (found at *www.wto.org* ). Taken together, these changes permit the Department to determine whether the GOC has bestowed a countervailable subsidy on Chinese producers. *See CFS Final* at Comments 1 and 6. Finally, the GOC acknowledged the changing nature of its economy insofar as its accession protocol contemplates the application of the CVD law to the PRC, even while it remains a non-market economy (NME). *See* Protocol of Accession of the People's Republic of China, WT/L/432 (November 23, 2001) at section 15(b) (found at *www.wto.org* ); *see* , *also* , *CFS Final* at Comment 1. Therefore, for this preliminary determination, we have selected the date of December 11, 2001, as the date from which we will measure countervailable subsidies in the PRC. Period of Investigation The period for which we are measuring subsidies, or the POI, is calendar year 2006. Subsidies Valuation Information Allocation Period The allocation period for non-recurring subsidies is normally the AUL as described in 19 CFR 351.524(d)(2). The AUL applicable to the OTR tire industry is 14 years according to the U.S. Internal Revenue Service's 1977 Class Life Asset Depreciation Range System. No party in this proceeding has disputed this allocation period. Cross-Ownership The Department's regulations at section 351.525(b)(6)(vi) state that cross-ownership exists between corporations if one corporation can use or direct the individual assets of the other corporation(s) in essentially the same way it uses its own. This section of the Department's regulations states that this standard will normally be met where there is a majority voting interest between two corporations or through common ownership of two (or more) corporations. Section 351.525(b)(6)(iii) of the Department's regulations states that “if the firm that received the subsidy is a holding company, including a parent company with its own operations, the Secretary will attribute the subsidy to the consolidated sales of the holding company and its subsidiaries.” The Court of International Trade

(CIT)has upheld the Department's authority to attribute subsidies based on whether a company could use or direct the subsidy benefits of another company in essentially the same way it could use its own subsidy benefits. *See Fabrique de Fer de Charleroi v. United States* , 166 F. Supp. 2d. 593, 604 (CIT 2001). Guizhou Tire reported that it is affiliated with numerous companies. Of these, according to Guizhou Tire, two are involved in the production or sale of subject merchandise: Guizhou Advance Rubber Co., Ltd. (Guizhou Rubber), a producer of subject merchandise, and Guizhou Tire I&E Corp. (GTCIE), which serves as Guizhou Tire's export department for OTR tires. 15 Guizhou Tire owns 98.75 percent of Guizhou Rubber and 100 percent of GTCIE. Therefore, pursuant to 19 CFR 351.525(b)(6)(vi), we preliminarily determine that Guizhou Tire is cross-owned with Guizhou Rubber, and, pursuant to 19 CFR 351.525(b)(6)(ii), we are attributing the subsidies received by Guizhou Tire and Guizhou Rubber to the combined sales of Guizhou Tire and Guizhou Rubber. Pursuant to 19 CFR 351.525(c), we are cumulating the benefits from subsidies provided to GTCIE with benefits from subsidies provided to Guizhou Tire. Both Guizhou Rubber and GTCIE have provided responses to the Department's questionnaires. 15 A third company is involved in domestic distribution. TUTRIC also reported numerous affiliations. Of these, one is a state-owned parent company, described by TUTRIC as a “holding company,” and another is a supplier of carbon black, Dolphin Carbon Black (DCB), an input consumed in the production of tires. TUTRIC reports that the input supplier is also a subsidiary of the holding company. The others are either located outside the PRC or not involved in the production or sale of subject merchandise. 16 Our analysis indicates that the holding company and the input supplier are essentially the same entity and that this entity controls TUTRIC. (The details of this analysis are business proprietary and are discussed in the Memorandum to Thomas Gilgunn, Program Manager, AD/CVD Operations, Office 6, from Mark Hoadley, Case Analyst, “TUTRIC's Cross-Ownership” (December 7, 2007).) As such, pursuant to 19 CFR 351.525(b)(6)(vi), we preliminarily determine that TUTRIC is cross-owned with its parent/holding company, and, pursuant to 19 CFR 351.525(b)(6)(iii), we are attributing the subsidies received by its parent/holding company to the combined sales of TUTRIC and the parent/holding company (hereinafter, DCB). 16 TUTRIC also claims affiliation with Starbright, one of the other two respondents in this case, based on both companies having a relationship with GPX International Tire Co. (GPX). Starbright also makes this claim. GPX is the sole owner of Starbright, and the nature of its relationship with TUTRIC is business proprietary. The Department, however, preliminarily determines that neither TUTRIC's relationship with GPX or Starbright rises to the level of cross-ownership. TUTRIC does not share board members or officers with these companies, for example, and the facts otherwise do not demonstrate that TUTRIC and either of these companies could “use or direct the individual assets of the other corporation(s) in essentially the same ways it can use its own assets.” 19 CFR 351.525(b)(6)(vi). Denominator When selecting an appropriate denominator for use in calculating the *ad valorem* subsidy rate, the Department considered the basis for respondents' receipt of benefits under each program at issue. We have preliminarily found that TUTRIC's, Guizhou Tire's, and Starbright's receipt of benefits under the programs found countervailable was not tied to export performance or to the production of a particular product. As such, for subsidies received by TUTRIC, Guizhou Tire, or Starbright, we are using that company's sales (and those of its cross-owned affiliates where applicable) of all products as the denominator in our calculations. *See* 19 CFR 351.525(b)(3). As discussed in the “Cross-Ownership” section above, Guizhou Tire is cross-owned with Guizhou Rubber, a producer of subject merchandise that received benefits that were not tied to export performance or to the production of a particular product. As such, for benefits received by Guizhou Rubber, we are using total sales of all products by Guizhou Tire and its cross-owned producer of subject merchandise (less any internal sales between Guizhou Tire and its cross-owned producer) as the denominator in our calculations. *See* 19 CFR 351.525(b)(6)(iv). Also as discussed in the “Cross-Ownership” section above, we have preliminarily found that TUTRIC is cross-owned with a parent company that received subsidies that were not tied to export performance or to the production of a particular product. As such, for benefits received by TUTRIC's cross-owned parent company, we are using total sales of all products by TUTRIC and its cross-owned parent company (less any internal sales between TUTRIC and its cross-owned parent company) as the denominators in our calculations. *See* 19 CFR 351.525(b)(6)(iii). Change In Ownership Starbright states that it was created in 2006 when it purchased substantially all the assets of Hebei Tire Co., Ltd. (Hebei Tire). Starbright claims that it is unable to provide information concerning subsidies received by Hebei Tire before the purchase, but that Hebei Tire had never been a (foreign invested enterprise)

(FIE)and had not been an SOE since 2000. Starbright also claims it purchased Hebei Tire at arm's length and for fair market value, and responded to the Department's standard change-in-ownership appendix. In doing so, it claims the sale was at arm's length, as it had no relationship with Hebei Tire and no relationship with the GOC. It also provides a reconciliation between the assets it purchased and their assessed value, thus, according to Starbright, demonstrating they were purchased at fair market value. Starbright also provides a reconciliation between the debt it paid off on behalf of Hebei Tire and the lending section of Hebei Tire's balance sheet at the approximate time of sale. Petitioners and Bridgestone have stated their concerns with the failure of Starbright and the GOC to provide information concerning past non-recurring subsidies received by Hebei Tire that might continue to be benefitting Starbright. In particular, these parties are concerned that Hebei Tire may have benefitted from debt forgiveness provided by Hebei Province prior to the sale of the company to Starbright, one of the new subsidy allegations on which the Department initiated an investigation on October 5. In addition, according to petitioners and Bridgestone, it is clear from the record that Hebei Tire had loans from state-owned commercial banks and acquired land-use rights from the GOC, two more potential sources of non-recurring subsidies. The Department determines that additional information is needed before a full evaluation of this change in ownership can be made. Among other things, further information is required to determine whether Hebei Tire was an SOE or was otherwise related to or controlled by the GOC at the time of sale, as this impacts the application of our change in ownership methodology. This determination involves examining particular PRC entities and their relationship to the government that the Department has not yet examined within the context of a CVD investigation. Furthermore, regardless of Hebei Tire's relationship to the GOC, the Department needs additional information on exactly what happened before the transaction with respect to Hebei Tire and what role the GOC played in this transaction, and all of its elements. As such, the Department intends, following this preliminary determination, to issue additional questionnaires to provide Starbright and the GOC an additional opportunity to provide that information. We intend to issue an interim analysis describing our preliminary findings with respect to this program before the final determination so that parties will have the opportunity to comment on our findings before the final determination. Loan Benchmarks *Summary* : The Department is investigating loans received by respondents from Chinese banks, including state-owned commercial banks (SOCBs), which are alleged to have been granted on a preferential, non-commercial basis. Section 771(5)(E)(ii) of the Act explains that the benefit for loans is the “difference between the amount the recipient of the loan pays on the loan and the amount the recipient would pay on a comparable commercial loan that the recipient could actually obtain on the market.” Normally, the Department uses comparable commercial loans reported by the company for benchmarking purposes. *See* 19 CFR 351.505(a)(2)(i). However, the Department does not treat loans from government banks as commercial if they were provided pursuant to a government program. *See* 19 CFR 351.505(a)(2)(ii). Because the loans provided to the respondents by SOCBs are under the Government Policy Lending program, as explained below, these loans are the very loans for which we require a suitable benchmark. Additionally, if respondents received any loans from foreign banks, these would be unsuitable for use as benchmarks because, as explained in detail in *CFS Final* , the GOC's intervention in the banking sector creates significant distortions, restricting and influencing even foreign banks within the PRC. *See CFS Final* at Comments 8 and 10. If the firm did not have any comparable commercial loans during the period, the Department's regulations provide that we “may use a national interest rate for comparable commercial loans.” *See* 19 CFR 351.505(a)(3)(ii). However, the Chinese national interest rates are not reliable as benchmarks for these loans because of the pervasiveness of the GOC's intervention in the banking sector. Loans provided by Chinese banks reflect significant government intervention and do not reflect the rates that would be found in a functioning market. *See CFS Final* at Comment 10. The statute directs that the benefit is normally measured by comparison to a “loan that the recipient could actually obtain on the market.” *See* section 771(5)(E)(ii) of the Act. Thus, the benchmark should be a market-based benchmark, yet, there is not a functioning market for loans within the PRC. Therefore, because of the special difficulties inherent in using a Chinese benchmark for loans, the Department is selecting a market-based benchmark interest rate based on the inflation-adjusted interest rates of countries with similar per capita gross income

(GNI)to the PRC, using the same regression-based methodology that we employed in *CFS Final* . *See CFS Final* at Comment 10. The use of an external benchmark is consistent with the Department's practice. For example, in *Softwood Lumber* , the Department used U.S. timber prices to measure the benefit for government provided timber in Canada. *See Final Results of the Countervailing Duty Investigation of Certain Softwood Lumber Products from Canada* , 67 FR 15545 (April 2, 2002), and accompanying *Issues and Decision Memorandum* , 34 ( *Softwood Lumber* ). In the current proceeding, the Department preliminarily finds that the GOC's predominant role in the banking sector results in significant distortions that render the lending rates in the PRC unsuitable as market benchmarks. Therefore, as in *Softwood Lumber* , where domestic prices are not reliable, we have resorted to prices outside the PRC. *Discussion* : In our analysis of the PRC as a non-market economy in the antidumping duty investigation of *Certain Lined Paper Products from the PRC* , the Department found that the PRC's banking sector does not operate on a commercial basis and is subject to significant distortions, primarily arising out of the continued dominant role of the government in the sector. *See* “The People's Republic of China

(PRC)Status as a Non-Market Economy,” May 15, 2006 ( *May 15 Memorandum* ); and “China's Status as a Non-Market Economy,” August 30, 2006 ( *August 30 Memorandum* ), both of which are referenced in the *Notice of Final Determination of Sales at Less Than Fair Value, and Affirmative Critical Circumstances, In Part: Certain Lined Paper Products From the People's Republic of China* , 71 FR 53079 (September 8, 2006), and as placed on the record of this investigation in a memorandum to the file titled “ *Loan Benchmark Information* ” (December 7, 2007) ( *Loan Benchmark Information Memorandum* ) on file in the Department's CRU. This finding was further elaborated in *CFS Final* . *See CFS Final* at Comment 10. In that case, the Department found that the GOC still dominates the domestic Chinese banking sector and prevents banks from operating on a fully commercial basis. We continue to find that these distortions are present in the PRC banking sector and, therefore, preliminarily determine that the interest rates of the domestic Chinese banking sector do not provide a suitable basis for benchmarking the loans provided to respondents in this proceeding. Moreover, while foreign-owned banks do operate in the PRC, they are subject to the same restrictions as the SOCBs. Further, their share of assets and lending is negligible compared with the SOCBs. Therefore, as discussed in greater detail in *CFS Final* , because of the market-distorting effects of the GOC in the PRC banking sector, foreign bank lending does not provide a suitable benchmark. *See CFS Final* at Comment 10. We now turn to the issue of choosing an external benchmark. Selecting an appropriate external interest rate benchmark is particularly important in this case because, unlike prices for certain commodities and traded goods, lending rates vary significantly across the world. Nevertheless, as discussed in *CFS Final* , there is a broad inverse relationship between income levels and lending rates. In other words, countries with lower per capita GNI tend to have higher interest rates than countries with higher per capita GNI, a fact demonstrated by the lending rates across countries reported in *International Financial Statistics* (IFS). *See www.imfstatistics.org* , placed on the record of this investigation in *Loan Benchmark Information Memorandum* . The Department has therefore preliminarily determined that it is appropriate to compute a benchmark interest rate based on the inflation-adjusted interest rates of countries with similar per capita GNI to the PRC, using the same regression-based methodology that we employed in *CFS Final* . As explained in *CFS Final* at Comment 10, this pool of countries captures the broad inverse relationship between income and interest rates. We determined which countries are similar to the PRC in terms of per capita GNI, based on the World Bank's classification of countries as: low income; lower-middle income; upper-middle income; and high income. The PRC falls in the lower-middle income category, a group that includes 55 countries as of July 2007. *See www.worldbank.org* , search engine term “lower middle income,” placed on the record of this investigation in *Loan Benchmark Information Memorandum* . Many of these countries reported short-term lending and inflation rates to IFS. With the exceptions noted below, we used this data set to develop an inflation-adjusted market benchmark lending rate for short-term RMB loans. *See http://www.imfstatistics.org* , placed on the record of this investigation in *Loan Benchmark Information Memorandum* . We did not include those economies that the Department considered to be non-market economies for AD purposes for any part of 2006: the PRC, Armenia, Azerbaijan, Belarus, Georgia, Moldova, Turkmenistan, and Ukraine. The benchmark necessarily also excludes any economy that did not report lending and inflation rates to IFS for 2005 or 2006. Finally, the Department also excluded three aberrational countries: Angola, with an inflation-adjusted 2005 rate of 44.72 percent; the Dominican Republic, with an inflation-adjusted 2004 rate of -18.83 percent; and Samoa, with an inflation-adjusted 2004 rate of -5.11 percent. As also discussed in *CFS Final* , this regression provides the most suitable market-based benchmark to measure the benefit from the Government Policy Lending program, because it takes into account a key factor involved in interest rate formation, that of the quality of a country's institutions, that is not directly tied to state-imposed distortions in the banking sector discussed above. *See www.worldbank.org/wbi/governance* , placed on the record of this investigation in *Loan Benchmark Information Memorandum* . Consistent with the regression model employed in *CFS Final* , the Department calculated an inflation-adjusted benchmark rate of 7.42 percent for 2006, 8.76 percent for 2005, 8.53 percent for 2004, and 9.96 percent for 2003. Because these are inflation-adjusted benchmarks, it is also necessary to adjust the interest paid by respondents on its RMB loans for inflation. This was done using the PRC inflation figure as reported to IFS. *See http://www.imfstatistics.org* , placed on the record of this investigation in *Loan Benchmark Information Memorandum* . The Department then compared its benchmarks with respondents' inflation-adjusted interest rate to determine whether a benefit existed for the loans received by respondents on which principal was outstanding or interest was paid during the POI. The lending rates reported in IFS represent short-term lending, and there is not sufficient publicly available long-term interest rate data upon which to base a robust benchmark for long-term loans. To identify and measure any benefit from long-term loans, the Department developed a ratio of short-term and long-term lending. The Department then applied this ratio to the benchmark short-term lending figure (discussed above) to impute a long-term lending rate. Specifically, the Department computed a ratio of the average one-year and five-year interest rates on interest rate swaps reported by the Federal Reserve for 2005. That is, if the long-term swap rate were 25 percent higher than the short-term swap rate, the Department would inflate the average short-term lending rate by 25 percent to arrive at a long-term interest rate benchmark. This methodology is appropriate because the ratio between short-term and long-term interest rate swap rates offers an estimate of the market consensus premium that borrowers would pay on a long-term loan over a short-term loan. *See CFS Final* at Comment 11. *Benchmarks for Foreign Currency-Denominated Loans* : For foreign currency-denominated loans, the Department was unable to locate sufficient data on short-term lending rates for the countries in the basket of “lower middle-income countries” used for its benchmark for RMB loans. As a result, for purposes of this preliminary determination, to determine the benefit from countervailable foreign currency-denominated loans, the Department used as a benchmark the one-year dollar interest rates for the London Interbank Offering Rate (LIBOR), plus the average spread between LIBOR and the one-year corporate bond rates for companies with a BB rating. Bloomberg provides data on average corporate bond rates for companies with a range from A-rated to B-rated. *See* Bloomberg data, placed on the record of this investigation in *Loan Benchmark Information Memorandum* . For this preliminary determination, we have determined that BB-rated bonds, which are the highest non-investment-grade and near the middle of the overall range, are the most appropriate basis for calculating the spread over LIBOR. Several of the countries in the basket report bond rates, but not all of these countries report corporate bond rates and none report corporate bond rates for firms in the industrial sector. The Department therefore relied on corporate bond rates for the industrial sector in the United States and the eurozone, because the market for dollars and euros is international in scope. On November 9, 2007, petitioners filed comments on the calculation of the loan benchmark. They suggested two changes to the methodology. First, they argue that the use of a GDP deflator would be a more appropriate adjustment for inflation than the use of the CPI. Second, they argue that there is more appropriate information than the ratio between one- and five-year interest rate swap rates to use in converting short-term interest rates to long-term interest rates. For purposes of this preliminary determination, we have decided not to make any adjustments to our benchmark rate methodology; however, we invite interested parties to comment on these proposals and will consider all comments on the benchmark in our final determination. SOE Status of Guizhou Tire and TUTRIC Guizhou Tire has repeatedly noted what it perceives as the Department's failure to provide a definition of an SOE, implying that its SOE status is in doubt. However, as it states on page 5 of its October 15 questionnaire response, 33.39 percent of its total shares outstanding are “state-owned.” Not only are 33.39 percent of its shares state-owned by Guiyang State Asset Investment Management Company (GAMC), but the next largest shareholder owns only one percent. Thus, no other shareholder is in a position to challenge GAMC's dominance. In addition, public information indicates GAMC's self-described purpose is to play the role of an owner of SOEs. *See* November 28 Bridgestone comments, Exhibit 6. Finally, we note Guizhou Tire received benefits under the State Key Technologies Renovation Project Fund. According to the GOC, only SOEs were eligible for this program. *See* September 24, 2007 GOC questionnaire response in the CVD investigation of laminated woven sacks, page 29 (“only state-owned enterprises and state-holding enterprises are eligible for this program”), a public version of which has been placed on the record of this investigation. Thus, the GOC considers Guizhou Tire to be an SOE. With regard to TUTRIC, based on the information on the record, the Department is treating TUTRIC as both an SOE and FIE. *See* , *e.g.* , October 15 TUTRIC questionnaire response, page 9. Analysis of Programs Based upon our analysis of the petition and the responses to our questionnaires, we preliminarily determine the following: I. Programs Preliminarily Determined To Be Countervailable A. Government Policy Lending We initiated an investigation of policy loans 17 to the tire industry based on references in the current ( *i.e.* , the eleventh) five-year plan of Guiyang municipality to a radial tire project for Guizhou Tire, and references to the auto parts and tire industries in the five-year plans, and similar or related planning documents ( *e.g.* , “catalogues” of industries designated for development), of Hebei Province, Tianjin, and the central government. In response to our questionnaires, additional information was placed on the record of this investigation by the GOC and Guizhou Tire indicating that the tire industry has been targeted by the GOC, provincial, and/or municipal governments for preferential lending. 17 The Department initiated on Policy Lending to the Chinese Tire Industry and Preferential Loans to SOEs. Of particular importance, this information indicates the targeting of tire producers by the provinces and certain municipalities relevant to this investigation: Guizhou, Hebei, and Tianjin. As the GOC has explained, provincial and municipality goals and objectives are in conformity with the central policy goals and objectives. Specifically, the central-level plans set goals regarding macroeconomic policies and “provide a vision for economic development, market and regulatory activities, social administration, and the provision of public services.” *See* October 29 GOC questionnaire response, pages 13 and 19. The GOC explained that the provincial and municipal five-year plans are drafted based on the goals and objectives of the central-level plans. *Id* . at 21-22. In other words, local governments ( *i.e.* , provinces and municipalities) must align their policies with stated central government policies and carry out those polices to the extent that such measures affect their locality. As such, central-level plans should be considered a central government policy or program that local governments adopt and implement through their own five-year plans. *See* , *also* , *CFS Amended Preliminary* , 72 FR at 17492. For example, the tenth Guizhou five-year plan (2001-2005) provided by the GOC singled out Guizhou Tire for technology renovation for two meridian ( *i.e.* , radial) tire lines (OTR tires can be radial tires, as well as “bias ply” tires). *See* October 29 GOC questionnaire response, Exhibit GOC-NEW-4-6. The tenth five-year plan also states that “policy bank loans and loans from abroad should continue to be allocated according to the plans.” *Id* . In addition, business proprietary information provided in Guizhou Tire's supplemental response indicates Guizhou Tire's importance in earlier five-year plans. *See* Memorandum to Thomas Gilgunn, Program Manager, AD/CVD Operations, Office 6, from Nicholas Czajkowski, Case Analyst, “Calculation Memorandum for Guizhou Tire” (December 7, 2007) ( *Guizhou Tire Calculation Memorandum* ). Regarding Hebei Province, the * Hebei Province Science and Technology 11 th Five-year Plan & 2020 Long-Term Target * , lists automobile parts and the rubber industry as “key projects,” and the * Guidelines for the Implementation of Hebei Province Science and Technology 11 th Five-year Plan * directs commercial banks to support “key projects.” *See* Bridgestone's September 19 new subsidy allegations, Exhibits 18 and 17, respectively. The ninth Hebei five-year plan also mentions that the “automobile and components” industry will, among other industries, be “developed greatly and stronger,” *see* October 29 GOC questionnaire response, Exhibit GOC-NEW-4-8, and the tenth five-year plan states that “auto parts,” among other industries, “shall be supported,” id. at Exhibit GOC-NEW-4-9. Regarding Tianjin, the eleventh five-year plan states that the “fine chemical industry {of} tyre . . . will be actively developed,” among other industries. *Id* . at Exhibit GOC-NEW-4-11. Moreover, the *Tianjin Municipal Directory Catalogue for the Priority Development of High- and New Tech Industries* , published in 2002, which claims that its purpose is to “guide social funds,” states, at paragraph 67, that “the recent industrialization focuses include: Manufacturing Equipment for heavy-duty, light truck and car radial tires.” *See* Bridgestone's September 5 New Subsidy Allegations at Exhibit 38. The Department noted in our investigation of CFS from the PRC that the NDRC equates “social funds” with loans, among other things. *See* Memorandum to Susan H. Kuhbach, Director, AD/CVD Operations, Office 1, from Lawrence Norton, Senior International Economist, “Government of the People's Republic of China Verification Report: Policy Lending” (August 20, 2007), a public version of which has been placed on the record of this investigation. Therefore, the Department preliminarily determines that the loans received by all three respondents and their cross-owned affiliates from SOCBs were made pursuant to a GOC policy to provide loans to the tire industry. The record indicates Guizhou Tire has been a key target for economic development by Guizhou province and Guiyang municipality since at least the eighth five-year plan. Furthermore, according to the translated excerpts provided by the GOC, the number of such specifically targeted enterprises is limited. For example, the GOC translated section 6 of the tenth Guizhou five-year plan, “Traditional industry shall be improved through high technology.” This section mentions only three other companies besides Guizhou Tire. In addition to making clear the importance of Guizhou Tire in the economic development of the province, the plan also is clear that loans are one means of development. Furthermore, the tenth Guizhou plan states explicitly, as noted above, the general directive that “policy loans” should be allocated according to the plans. In contrast to the Guizhou province and Guiyang municipalities plans, the plans for Hebei Province and Tianjin do not mention, insofar as the GOC provided translations, particular enterprises or particular projects. They do, however, refer to particular industries targeted for development. As discussed above, Hebei Province refers to the auto parts and rubber industries, 18 and Tianjin refers to the tire industry (and, at least in one case, to heavy duty tires). Also as discussed above, each of these provinces provides direction in documents implementing their five-year plans for the use of loans to “guide” and “assist” targeted industries. 18 The radial tire project discussed in the Guiyang municipality plan is discussed within the context of identifying automobile parts as a key industry. *See* the Bridgestone October 1 submission. Thus, given the parallels among the central and provincial five-year plans, it appears the GOC and provincial and municipal governments consider radial tires, which include OTR tires, to be part of the automobile parts industry. Thus, for the reasons discussed above, we preliminarily determine that this loan program is *de jure* specific pursuant to section 771(5A)(D)(i) of the Act. We also determine the program provides direct financial contributions by the GOC ( *i.e.* , government policy banks and SOCBs) pursuant to section 771(5)(D)(i) the Act. *See CFS Final* at Comment 8. Finally, this program provides benefits to the recipients equal to the difference between what the recipients paid on loans from government-owned banks and the amount they would have paid on comparable commercial loans, pursuant to section 771(5)(E)(ii) of the Act. Two of the respondents, as well as their cross-owned affiliates, report long-term loans from state-owned banks outstanding during the POI. Except for TUTRIC and DCB, the reported loans were all disbursed after December 11, 2001, the date the Department has preliminarily determined to be the date from which the Department will identify and measure subsidies in the PRC. TUTRIC's and DCB's long-term loans “date back to the 1980s and 1990s,” before December 11, 2001. It is apparent, however, that the original terms and conditions of these loans have altered over time. Based on the Department's analysis of the information provided by TUTRIC and the GOC, we preliminarily determine that TUTRIC's treatment of these loans, and the GOC's ongoing acceptance of this treatment, has created new and recurring subsidies conferring benefits since 2001 and during the POI. Most of the details about these loans are business proprietary; for a more complete discussion see Memorandum to Thomas Gilgunn, Program Manager, AD/CVD Operations, Office 6, from Jack Zhao, Case Analyst, “Calculation Analysis for TUTRIC” (December 7, 2007) ( *TUTRIC Calculation Memorandum* ). For purposes of this preliminary determination, we are treating these as new loans received during the POI. We intend to continue seeking additional documentation regarding these loans which we will consider for the final determination. In addition to these long-term loans, two of the respondents and their cross-owned affiliates had short-term loans, disbursed in 2005 and 2006 with balances outstanding during the POI. To calculate the benefit, for all companies including TUTRIC, we used the interest rates described in the “Loan Benchmark” section above and the methodology described in 19 CFR 351.505(c)(1) and (2). We divided the benefit to each company by the appropriate sales denominator to calculate subsidy rates of 1.49, 0.45, 3.40 percent *ad valorem* for Guizhou Tire, Starbright, and TUTRIC, respectively. B. Provision of Land for Less Than Adequate Remuneration to SOEs Petitioners allege that the GOC offers free land to SOEs in key strategic sectors. Petitioners also note that the Department concluded in the *August 30 Memorandum* (referred to above in our discussion of loan benchmarking) that SOEs own a significant amount of land-use rights that they receive free of charge. As explained above, both Guizhou Tire and TUTRIC are SOEs. Petitioners also allege that the GOC has a policy of providing land-use rights to certain FIEs on a preferential basis. According to petitioners, FIEs that are either product export enterprises or technologically advanced enterprises are entitled to caps on the land-use fees that can be charged to them, and in some cases are exempt from such fees altogether. Guizhou Tire and its cross-owned affiliates (throughout this section collectively referred to as Guizhou Tire) reported details concerning three tracts of land used in the production and sale of subject merchandise. Among many other questions the Department asked concerning these three tracts of land, we asked whether the relevant land-use rights are considered either granted land-use rights or allocated land-use rights. *See* November 27 Guizhou Tire supplemental questionnaire response, page 29. Guizhou Tire did not answer this question. Based on the information the Department has collected in other cases concerning PRC land-use rights ( *e.g.* , the *August 30 Memorandum* ), answers given in response to this question by the two other respondents, and the business-proprietary details given by Guizhou Tire regarding its three land-use agreements, we conclude that Guizhou Tire was likely provided with allocated land-use rights for one of its three tracts (“tract number 3”). Business proprietary information also indicates that these rights were essentially conferred after December 11, 2001. *See* Memorandum to Thomas Gilgunn, Program Manager, Office of AD/CVD Enforcement 6, from Mark Hoadley, Case Analyst, “Analysis of Land-Use Rights for OTR Tires Respondents,” December 7, 2007 ( *Land Analysis Memorandum* ). As discussed in the *LWS Preliminary* , there are two main types of land-use rights in China: “granted” (sometimes referred to as “conveyed”) and “allocated.” The GOC transfers allocated land-use rights to state entities for a nominal one-time charge and annual fee. These allocated land-use rights do not expire, may not be leased or mortgaged, and can be transferred (or shared for commercial purposes) legally only if they are first converted to granted land-use rights, *i.e.* , those rights transferred to private entities as described below. *See August 30 Memorandum* at 43, citing to Ho, Samuel P.S., and Lin, George C.S., “Emerging Land Markets in Rural and Urban China: Policies and Practices” (The China Quarterly, 2003), 687-8, stating that “(a)llocation is used to dispense land use right to state-owned or non profit users without time limits and conveyance is used to transfer land-use rights to commercial users for a fixed period . . . state units are able to obtain land use rights at costs that are much lower than those paid by commercial users and with no time limit.” Allocated land-use rights are substantially different from granted land-use rights, which were the type of land-use rights at issue in the *LWS Preliminary* . Granted land-use rights can be purchased by private entities directly from the government on the “primary market” or from other granted land-use rights holders on the “secondary” market. Granted land-use rights can be transferred or mortgaged and require a large up-front fee, but carry no annual fees aside from taxes. *See August 30 Memorandum* at 43-44. Therefore, the information on the record indicates that allocated land-use rights, which can only be transferred to state entities and which are subject to significantly different terms than granted land-use rights, are specific to SOEs pursuant to section 771(5A)(D)(i) of the Act. Accordingly, the Department preliminarily determines that certain land-use rights of Guizhou Tire, provided after December 11, 2001, are countervailable. The allocated land rights provided to Guizhou Tire are available only to SOEs and thus are specific under section 771(5A)(D)(i) of the Act. We further determine that the GOC's provision of land rights is a financial contribution within the meaning of section 771(5)(D)(iii). Finally, the Department has determined that the provision of these rights provided a benefit pursuant to 19 CFR 351.511(a). Pursuant to section 771(5)(E)(iv) of the Act, a benefit is conferred when the government provides a good or service for less than adequate remuneration. Section 771(5)(E) of the Act further states that “the adequacy of remuneration shall be determined in relation to prevailing market conditions for the good or service being provided in the country which is subject to the investigation or review. Prevailing market conditions include price, quality, availability, marketability, transportation, and other conditions of sale.” Section 351.511(a)(2) of the Department's regulations sets forth the basis for identifying comparative benchmarks for determining whether a government good or service is provided for less than adequate remuneration. These potential benchmarks are listed in hierarchical order by preference:

(1)market prices from actual transactions within the country under investigation;

(2)world market prices that would be available to purchasers in the country under investigation; or

(3)an assessment of whether the government price is consistent with market principles. The Department Cannot Apply a First Tier Benchmark As a general matter, the most direct means of determining whether a government obtained adequate remuneration is normally through a comparison with private transactions for a comparable good or service, in this case, the sale of land-use rights, in the country. Thus, the preferred benchmark in the hierarchy is an observed market price for the good, in the country under investigation, from a private supplier (or, in some cases, from a competitive government auction) located either within the country, or outside the country (the latter transaction would be in the form of an import, and therefore not applicable to provision of land-use rights). This is because such prices generally would be expected to reflect most closely the commercial environment of the purchaser under investigation. However, a particular problem can arise in applying this standard when the government is the sole supplier of the good or service in the country or within the area where the respondent is located. In these situations, there may be no alternative market prices available in the country ( *e.g.* , private prices, competitively-bid prices, import prices, or other types of market reference prices). Moreover, a first tier benchmark is not appropriate where the government accounts for a significant or overwhelming portion of the sales of the good in question or where the government's presence in the market is likely to have produced significant distortions in the price formation of the good. *See Countervailing Duties, Final Rule, Preamble* , 63 FR 65347, 65378 (November 25, 1998) (“Where it is reasonable to conclude that actual transaction prices are significantly distorted as a result of the government's involvement in the market, we will resort to the next alternative in the hierarchy”). In such cases, the “commercial environment of the purchaser” is distorted by the overwhelming presence of the government and cannot give rise to a price that is sufficiently free from the effects of government actions. The use of such an internal benchmark would be akin to comparing the benchmark to itself, *i.e.* , such a benchmark would reflect the distortions of the government presence. *See Softwood Lumber* , 67 FR 15545 and accompanying Issues and Decision Memorandum, at 34. In our analysis of the PRC as a non-market economy in the recent investigation of *Certain Lined Paper Products from the PRC* , we found that real property rights in China remain poorly defined and weakly enforced, with a great divergence between *de jure* reforms and *de facto* implementation of these reforms. *See August 30 Memorandum* at 46. In arriving at this conclusion, the Department also discussed the extent of government involvement in the PRC land market. This was also the focus of our preliminary determination with regard to a benchmark for land-use rights provided for less than adequate remuneration in the *LWS Preliminary* . In that case, we noted that the government, either at the national or local level, is the ultimate owner of all land in China, and we examined whether the GOC exercises control over the supply side of the land market in China as a whole so as to distort prices in the primary and secondary markets. We preliminarily determined that, given the pervasive intervention of the GOC in the land market in China, the Department cannot rely on prices, private or otherwise, from this market for purposes of a first tier benchmark. *See LWS Preliminary* . Given this recent preliminary determination that covers the same POI as this proceeding and on the basis of the evidence on this record, we continue to find in this proceeding that there are no usable first tier in-country benchmarks to measure the benefit from the transfer of land-use rights during the POI. Our preliminary determination with respect to internal prices for industrial land-use rights necessarily reflects the evidence on the record at this time. We will carefully review and consider all additional information timely submitted on the record during the course of this proceeding regarding the primary and secondary markets, including auctions, tenders and listings, as well as agricultural land conversions and other land assessment, pricing and transfer procedures. The Department Cannot Apply a Second Tier Benchmark The second tier benchmark, according to the regulations, relies on world market prices that would be available to the purchasers in the country in question, though not necessarily reflecting prices of actual transactions involving that particular producer. *See* 19 CFR 351(a)(2)(iii). In selecting a world market price under this second approach, the Department will examine the facts on the record regarding the nature and scope of the market for that good to determine if that market price would be available to an in-country purchaser. As discussed in the Preamble, the Department will consider whether the market conditions in the country are such that it is reasonable to conclude that a purchaser in the country could obtain the good or service on the world market. *See Preamble* , 63 FR at 65378. As with the use of import prices discussed above under the first tier benchmark analysis and as discussed in the *LWS Preliminary* , we preliminarily conclude that land, an in situ property, does not lend itself to be considered under this tier. The Department Is Using a Benchmark from Outside China Since we are not able to conduct our analysis under the second tier of the regulations, consistent with the hierarchy, we next consider whether the government pricing of land-use rights is consistent with market principles. This approach is also set forth in section 351.511(a)(2)(iii) of the Department's regulations and is explained further in the Preamble: {W}here the government is the sole provider of a good or service, and there are no world market prices available or accessible to the purchaser, we will assess whether the government price was set in accordance with market principles through an analysis of such factors as the government's price-setting philosophy, costs (including rates of return sufficient to ensure future operations), or possible price discrimination. In our experience, these types of analysis may be necessary for such goods or services as electricity, land leases or water, and the circumstances of each may vary widely. *See Preamble* , 63 FR at 65378. The regulations do not specify how the Department is to conduct such a market principle analysis. By its very nature, this analysis depends upon available information concerning the market sector at issue and, therefore, must be developed on a case-by-case basis. Consistent with the *LWS Preliminary* , we preliminarily determine in the instant case that due to the weak definitions and protection of property rights, the overwhelming presence of government involvement in the land-use rights market, as well as the documented deviation from the authorized methods of pricing and allocating land, the purchase of land-use rights in China is not conducted in accordance with market principles. Given this finding, we looked for an appropriate basis to determine the extent to which land-use rights are provided for less than adequate remuneration. Consistent with the *LWS Preliminary* , we have preliminarily determined that this analysis is best achieved by comparing the prices for land-use rights in China with comparable market-based prices in a country at a comparable level of economic development that is in a reasonably proximate region to China. In the *LWS Preliminary* , we concluded that the most appropriate benchmark for respondents' land-use rights was the sales of certain industrial land plots in industrial estates, parks and zones in Thailand. In that recent case, we relied on prices from a real estate market report on Asian industrial property that was prepared outside the context of any Department proceeding by an independent and internationally recognized real estate agency with a long-established presence in Asia. *See* attachments 5, at 3, and 3, at 3, of the *Land Benchmark Memorandum* (collectively, the Asian Industrial Property Reports). In relying on a land benchmark from Thailand, we noted that China and Thailand have similar levels of per capita GNI, namely, $2010 and $2990, respectively; *see* attachment 6 of the *Land Benchmark Memo* , and that population density in China and Thailand are roughly comparable, with 141 persons per square kilometer (k 2 ) in China and 127/k 2 in Thailand, *id* . at attachment 6. Additionally, we noted that producers consider a number of markets, including Thailand, as an option for diversifying production bases in Asia beyond China. Therefore, the same producers may compare prices across borders when deciding what land to buy. In that case, we cited to a number of sources which named Thailand as an alternative production base to China. *See* Asian Industrial Property Reports; *see* , *also* , “Japan firms rate Vietnam best alternative to China,” Nikkei Weekly, April 10, 2006, “FY2005 Survey of Japanese Firms' International Operations,” Japan External Trade Organization, March 2006 at 1, and “JETRO Releases its Latest Survey of Japanese Manufacturers in ASEAN and India.” Given the recent *LWS Preliminary* that covers the same POI as in this proceeding and on the basis of the evidence on this record, we continue to preliminarily determine that the “indicative land values” for land in Thai industrial zones, estates and parks outlined in the Asian Industrial Property Reports present a reasonable and comparable benchmark for the value of the land at issue in this investigation. However, as discussed above, there are two main types of land-use rights in China: “granted” and “allocated.” Granted land-use rights, which were the types of land-use right at issue in *LWS Preliminary* , require a large up-front fee, but carry no annual fees aside from taxes. Such land-use rights can be transferred or mortgaged, and are akin to an outright purchase of land. In contrast, allocated land-use rights are transferred to state entities, do not expire, may not be leased or mortgaged and are subject to an annual fee. Allocated land-use, therefore, more closely resembles a lease or rental arrangement than a one-time purchase. Because the land-use rights at issue in the instant investigation are allocated land-use rights, we looked for an appropriate basis to determine a benchmark for the market-value annual rent on industrial land. As stated above, we continue to find that the “indicative land values” outlined in the Asian Industrial Property Reports present a reasonable and comparable benchmark for the value, *i.e.* , an outright purchase price, of the land at issue in this investigation. In order to assess the appropriate *rental value* of such land, we looked for an appropriate “property yield” for commercial land in Thailand, *i.e.* , the annual cash flow from rent that a land owner in Thailand should expect to earn. We found that the same source that compiled the Asian Industrial Property Reports, also prepares market reports on “property yields” and real estate investment trusts (REITs) in Asia and Thailand. The reported property yields in Thailand range from 3 to 11 percent, and are related to a variety of real estate holdings from housing to factories. However, none is specific to industrial land. *See* Thailand Investment MarketView, Q3 2007 at 3, a public version of which has been placed on the record of this investigation. REITs are trusts that are dedicated to owning and/or operating income-producing real estate. Dividends from REITs are based on the income, often rent, generated from the real estate holdings. REITs in Thailand hold a variety of commercial real estate, including real estate dedicated to industrial production and manufacturing. *Id* . at 2. Although these REITs portfolios also hold non-industrial real estate, we note that there is a wide range of returns and, furthermore, there is nothing on the record to indicate that industrial land would yield a higher or lower income than other types of real estate property in Thailand. We therefore preliminarily determine that the dividend yields from such REITs provide a reasonable basis to estimate property yields for industrial land in Thailand. The average dividend yield of REITs in Thailand in the period contemporaneous with the one-time purchase benchmark established in the LWS preliminary is 7.4 percent, which is also consistent with the spread in property yields discussed above. *See* REITs Around Asia at 2, a public version of which has been placed on the record of this investigation. In order to calculate an annual rent, we multiplied this annual yield percentage by the up-front purchase price per square foot

(psf)established in the *LWS Preliminary* to arrive at an annual psf rental rate. In order to calculate the benefit, we first multiplied the benchmark rental rate (adjusted to the POI) by the total area of the countervailable land. We then made adjustments for fees paid by Guizhou Tire to derive the total POI benefit. We divided the 2006 benefit by the appropriate sales denominator to calculate a subsidy rate of 0.11 percent *ad valorem* for Guizhou Tire. As discussed above, we have considered certain economic and demographic factors in arriving at this conclusion. However, we also note that other factors may inform this decision, including the availability of data on prices, investment flows, availability of land, and industry density in a certain region. We intend to continue to explore this issue and invite comments from the parties. While TUTRIC reported that it received granted land-use rights, the details of its narrative and supporting documentation indicate it received the benefits of allocated rights. In particular, it pays a yearly fee not typically associated with granted rights. In fact, according to the *August 30 Memorandum* at 43, granted rights “require a large up-front fee but carry no annual fees aside from taxes.” According to TUTRIC's November 27 supplemental response (bottom of page 17), the annual fee paid by TUTRIC is not a tax, but a “price” which is periodically changed by the local administration ( *e.g.* , according to TUTRIC, the land authority increased the price in 2007). It also states in Exhibit 11 of its October 15 questionnaire response that it records its yearly fee in its financial records as “land-use fees.” While TUTRIC also reported paying an up-front fee in the mid-1980s, which is not inconsistent with either allocated or granted rights, the business proprietary breakdown of this fee indicates it might be more accurately characterized as an “expropriation” fee (as TUTRIC explains in its November 27 supplemental response, its land was originally farm land, which the city agreed to “zone” for industrial use on TUTRIC's behalf). *See Land Analysis Memorandum* . DCB also acquired land-use rights fitting the description of allocated rights (DCB did not state whether its rights were allocated or granted). According to DCB, its land was originally provided free of charge, but today it pays an annual fee. Moreover, the business proprietary details of the land-use documents provided in Exhibit 14 of its November 27 questionnaire response closely fit the description given in the *August 30 Memorandum* of allocated rights. *See Land Analysis Memorandum* . While Starbright is not an SOE, its response indicates that it may have been awarded allocated land. These land transactions appear to be part of Starbright's 2006 CIO. We also note that business proprietary information indicates local authorities may have based their approval of Hebei Tire's asset sale in part on the export performance of Starbright. *See Land Analysis Memorandum* . The Department preliminarily determines that additional information is needed to evaluate the land-use rights of both TUTRIC and Starbright. Specifically, for TUTRIC and DCB, further information is required regarding the details of their transactions (for example, TUTRIC provided summaries of several land-use documents, instead of the documents themselves). For Starbright, as discussed in the “Change in Ownership” section above, further information is required regarding Hebei Tire and its asset sale to Starbright. We intend to issue an interim analysis describing our preliminary findings with respect to this program before the final determination so that parties will have the opportunity to comment on our findings before the final determination. C. Tax Subsidies to FIEs in Specially Designated Geographic Areas Petitioners allege that FIEs located in special designated locations ( *e.g.* , new-technology and high-technology zones, special economic zones, and economic and technological development zones) pay income tax at reduced rates. Under this program, such zones have reduced income tax rates for FIEs ( *e.g.* , from 30 to 24 percent) pursuant to Article 7 of the FIE Tax Law. According to the GOC, for FIEs established in a coastal economic development zone, a special economic zone, or an economic technology development zone, the applicable corporate income tax rate is 15 percent or 24 percent, depending on the zone. The GOC reports on page 46 of its October 15 questionnaire response that TUTRIC is located in a coastal economic development zone, and the applicable tax rate for TUTRIC during the POI was 24 percent. TUTRIC's 2006 tax return shows that the income tax rate was reduced from 30 percent to 24 percent. TUTRIC's parent company, as well as Guizhou Tire and its cross-owned affiliates, reported that they did not use this program. Starbright is an FIE, but did not benefit under this program during the POI. The 2005 income tax returns (filed in 2006) submitted by these companies confirm that these companies did not claim a lower tax rate during the POI. We preliminarily determine that the exemption or reduction in the income tax paid by FIEs in specially designated geographic areas under this program confers a countervailable subsidy. The exemption/reduction is a financial contribution in the form of revenue forgone by the GOC and it provides a benefit to the recipients in the amount of the tax savings. *See* section 771(5)(D)(ii) of the Act and 19 CFR 351.509(a)(1). We also preliminarily determine that the exemption/reduction is limited to enterprises located in designated geographical regions and, hence, is specific under section 771(5A)(D)(iv) of the Act. The Department also found this program to be countervailable in the CFS and LWS investigations. *See CFS Amended Preliminary* , 72 FR at 17494 (and confirmed in *CFS Final* , 72 FR 60645), and *LWS Preliminary* , 72 FR 67893. To calculate the benefit from this program to TUTRIC, we treated the income tax exemption claimed by TUTRIC as a recurring benefit, consistent with 19 CFR 351.524(c)(1). To compute the amount of tax savings, we compared the tax rate paid to the rate that would have been paid by TUTRIC otherwise (24 versus 30 percent) and multiplied the difference by TUTRIC's taxable income. In accordance with 19 CFR 351.525(b)(6)(i), we attributed the benefit received to the total sales of TUTRIC. Additional information on this calculation is provided in the calculation analysis memorandum for TUTRIC. *See TUTRIC Calculation Memorandum* . On this basis, we preliminarily determine a countervailable subsidy of 0.13 percent *ad valorem* for TUTRIC for this program. D. Local Income Tax Exemption and Reduction Programs for “Productive” FIEs Petitioners allege that pursuant to Article 9 of the FIE Tax Law and Article 71 of Decree 85 of the Council of 1991, local provinces can establish eligibility criteria and administer the application process for local income tax reductions or exemptions for FIEs, effectively extending the tax exemptions or reductions that are allowed to FIEs by the national Two Free, Three Half program. In its questionnaire response, TUTRIC stated it received benefits under this program and its tax return filed during the POI confirms it benefitted from this program. In addition, the GOC reports on page 75 of its October 15 questionnaire response that TUTRIC participated in this program during the POI. TUTRIC's parent company, as well as Guizhou Tire and its cross-owned affiliates, reported that they did not use this program. Starbright is an FIE, but did not claim a benefit under the program on the tax return it filed in 2006. The income tax returns submitted by these companies confirm they did not benefit from this program. We preliminarily determine that the exemption or reduction in the local income tax paid by “productive” FIEs under this program confers a countervailable subsidy. The exemption/reduction is a financial contribution in the form of revenue forgone by the government and it provides a benefit to the recipients in the amount of the tax savings. *See* section 771(5)(D)(ii) of the Act and 19 CFR 351.509(a)(1). We also preliminarily determine that the exemption/reduction afforded by this program is limited as a matter of law to certain enterprises, “productive” FIEs, and, hence, is specific under section 771(5A)(D)(i) of the Act. The Department has also found this program to be countervailable in the CFS and LWS investigations. *See CFS Amended Preliminary* , 72 FR at 17494 (and confirmed in the *CFS Final* , 72 FR 60645), and *LWS Preliminary* , 72 FR at 67893. To calculate the benefit from this program to TUTRIC, we treated the income tax exemption claimed by TUTRIC as a recurring benefit, consistent with 19 CFR 351.524(c)(1). To compute the amount of tax savings, we compared the tax rate paid to the rate that would have been paid by TUTRIC otherwise (the standard local rate is 3 percent) and multiplied the difference by TUTRIC's taxable income. In accordance with 19 CFR 351.525(b)(6)(i), we attributed the benefit received to the total sales of TUTRIC. Additional information on this calculation is provided in the calculation analysis memorandum for TUTRIC. *See TUTRIC Calculation Memorandum* . On this basis, we preliminarily determine a countervailable subsidy of 0.06 percent *ad valorem* for TUTRIC. E. VAT and Tariff Exemptions for FIEs and Certain Domestic Enterprises Using Imported Equipment in Encouraged Industries Petitioners allege that the *State Councils's Circular on Adjusting Tax Policies on Imported Equipment* (Guofa No. 37) ( *Circular No. 37* ) exempts both FIEs and certain domestic enterprises from paying import tariffs and VAT on imported equipment provided that these goods are not for resale. Enacted in 1997, *Circular No. 37* exempts both FIEs and certain domestic enterprises from the VAT and tariffs on imported equipment used in their production. The National Development and Reform Commission

(NDRC)and the General Administration of Customs are the government agencies responsible for administering this program. The objective of the program is to encourage foreign investment and to introduce foreign advanced technology equipment and industry technology upgrades. Domestic industries may be exempted from tariffs and VAT on certain imported equipment as long as the equipment being imported does not fall under the *Directory of Imported Commodities of Non-Tax Exemption to be Used in Domestic Invested Projects* . FIEs may be exempted from tariffs and VAT of certain imported equipment as long as the equipment being imported does not fall under the *Directory of Imported Commodities of Non-Tax Exemption to be Used in Foreign Invested Projects* . Both Guizhou Tire and TUTRIC reported in their October 15 questionnaire responses that they applied for, and received, VAT and tariff exemptions for imports of equipment during the POI. Guizhou Tire reported that it was entitled to these exemptions because of its status as an “encouraged project” ( *i.e.* , a domestic enterprise that engaged in activities listed in the *Catalogue of Key Industries, Products and Technologies the Development of Which is Encouraged by the State* ) and because it imported equipment during the POI which was not listed in the *Directory of Imported Commodities of Non-tax Exemption to be Used in Domestic Invested Projects* . TUTRIC reported that it was entitled to these exemptions because of its status as an FIE which imported equipment during the POI which did not fall into the *Directory of Imported Commodities of Non-tax Exemption to be Used in Foreign Invested Projects* . We preliminarily determine that the exemptions on VAT and tariffs on purchases of imported equipment during the POI confer a countervailable subsidy. These exemptions provide a financial contribution in the form of revenue forgone by the GOC. They provide a benefit to the recipients in the amount of the VAT and tariffs saved. *See* section 771(5)(D)(ii) of the Act and 19 CFR 351.510(a)(1). As described above, certain domestic enterprises are eligible to receive VAT and tariff exemptions under this program as well as FIEs. Based on the information provided by the GOC, it does not appear that the addition of these domestic enterprises broadens the reach or variety of users sufficiently to render the program non-specific. *See CFS Final* at Comment 16, discussing and affirming the preliminary determination that this program is specific under section 771(5A)(D)(iii)(I) of the Act despite the fact that the “pool of companies eligible for benefits is larger than FIEs.” For example, to be eligible, Guizhou Tire (not a FIE) had to qualify as an “encouraged project” ( *i.e.* , a domestic enterprise that engaged in activities listed in the Catalogue of Key Industries, Products and Technologies the Development of Which is Encouraged by the State). Therefore, we preliminarily find the VAT and tariff exemptions to be specific under section 771(5A)(D)(iii)(I) of the Act. Since these VAT and tariff exemptions were for the purchase of capital equipment, we are treating these exemptions as non-recurring benefits in accordance with 19 CFR 351.524(c)(2)(iii). *See* , *also* , LWS Preliminary (countervailing a rebate for the purchase of capital equipment as a non-recurring benefit under a similar VAT program). Guizhou Tire and TUTRIC reported that they received these exemptions during the POI. To determine the benefit, we first conducted the “0.5 percent test.” *See* 19 CFR 351.524(b)(2). We summed the VAT and tariff exemptions Guizhou Tire and TUTRIC received and divided that sum by each company's sales during the POI in accordance with the attribution rules described in 19 CFR 351.525(b)(6). As a result, we found that the benefits were less than 0.5 percent of relevant sales during the POI for both Guizhou Tire and TUTRIC. Thus, Guizhou Tire's and TUTRIC's VAT and tariff exemptions should be allocated to the year of receipt ( *i.e.* , 2006, the POI). On this basis, we preliminarily determine a countervailable subsidy of 0.03 and 0.17 percent *ad valorem* for Guizhou Tire and TUTRIC, respectively. F. The State Key Technologies Renovation Project Fund Petitioners state that the State Key Technology Renovation Project Fund (Key Technology Program) was created pursuant to state circular Guojingmaotouzi No. 886 ( *Circular No. 886* ) in 1999 to promote technologies in targeted sectors, and operates under the regulatory guidelines provided in the circular. The circular was issued by the former State Economic and Trade Commission (SETC), the former State Planning Commission (SPC), the Ministry of Finance

(MOF)and the People's Bank of China (PBC). The purpose of this program is to promote: 1) technological renovation in key industries, key enterprises, and key products; 2) facilitation of technology upgrade; 3) improvement of product structure; 4) improvement of quality; 5) promotion of domestic production; 6) increase of supply; 7) expansion of domestic demand; and 8) promotion of continuous and healthy development of the state economy. Under the Key Technology Program, companies can apply for funds to cover the cost of financing specific technological renovation projects. Pursuant to Article 4 of *Circular No. 886* , the recipients of these funds will mainly be selected from large-sized state-owned enterprises and large-sized state holding enterprises among the 512 key enterprises, 120 pilot enterprise groups and the leading enterprises in industries. To be considered for funding, the enterprise files an application that is reviewed at various levels of government, with final approval given by the State Council. The GOC has further reported that the Key Technology Program has not operated since 2003, although the implementing regulations remain in effect. This is due to institutional reform in the government. The implementing agency, the SETC, was dissolved and the program was not taken over by another agency. The GOC and Guizhou Tire have reported that Guizhou Tire received benefits under the Key Technology Program to assist in Guizhou Tire's development of a production line before the program ceased operation in 2003. This production line was involved in the production of both subject and non-subject merchandise. We preliminarily determine that the Key Technology Program provides countervailable subsidies to Guizhou Tire within the meaning of section 771(5) of the Act. Guizhou Tire notes that only a certain portion of the merchandise produced from the production line was subject merchandise. However, Guizhou Tire has provided insufficient evidence to demonstrate that these subsidies were tied to non-subject merchandise, pursuant to19 CFR 351.525(b)(5). *See Guizhou Tire Calculation Memorandum* for details. We find that these grants are a direct transfer of funds within the meaning of section 771(5)(D)(i) of the Act, providing a benefit in the amount of the grant. *See* 19 CFR 351.504(a). We further preliminarily determine that the grants provided under this program are limited as a matter of law to certain enterprises, *i.e.* , large-sized state-owned enterprises and large-sized state holding enterprises among the 512 key enterprises, 120 pilot enterprise groups and the leading enterprises in industries, and, hence, are specific under section 771(5A)(D)(i) of the Act. According to the GOC, the program supports state key technological renovation projects through project investment or loan interest grants. Therefore, consistent with 19 CFR 351.524(c)(1), we are treating the grants received under this program as “non-recurring.” To measure the benefits of each grant that are allocable to the POI, we first conducted the “0.5 percent test” for each grant. *See* 19 CFR 351.524(b)(2). We divided the total amounts approved in each year by the relevant sales for those years. As a result, we found that a grant provided in one year was greater than 0.5 percent of relevant sales and was properly allocated over the AUL. To calculate the countervailable subsidy rate, we divided the benefits attributable to the POI by the total value of Guizhou Tire's total sales during the POI. On this basis, we preliminarily determine the countervailable subsidy rate to be 0.12 percent *ad valorem* for Guizhou Tire. G. Provision of Natural and Synthetic Rubber by SOEs for Less than Adequate Remuneration Bridgestone alleges that the GOC, through state-owned rubber producers, provides domestic tire producers with natural and synthetic rubber at prices that do not reflect adequate remuneration. In its questionnaire response, the GOC states that the production and purchase price of both natural and synthetic rubber in the PRC are driven by market forces. *See* October 29 GOC questionnaire response at 11. The GOC also states that it does not regulate the price of rubber products, nor does it interfere with the decision making or day-to-day operations of natural and synthetic rubber producers or consumers. *Id* . The GOC reported that the users of rubber in the PRC included the following industries: tires; rubber bands and tubes; shoes; machinery components; and commodity products. The GOC claims not to be aware of any particular industries that receive preferential prices for rubber. In our initial new subsidy allegation questionnaire, we asked the GOC to explain the nature of its relationship with rubber suppliers and to state whether they are owned by the government. The GOC did not answer our question regarding state ownership of rubber suppliers. *Id* . at 10. In our supplemental questionnaire dated November 14, 2007, we asked the GOC to provide a complete list of producers and sellers of rubber in China and to indicate the state's ownership interest in each producer. The GOC did not provide a complete list of rubber producers and sellers and did not indicate the state's ownership interest in any producer. *See* November 27 GOC supplemental questionnaire response at 30. All three respondents reported purchases of natural and synthetic rubber during the POI, and provided a breakdown of purchases from each supplier. Although the Department requested respondents to identify which suppliers were SOEs, Guizhou Tire did not provide this information. Instead, Guizhou Tire stated that the Department had not defined the term SOE in its questionnaires and that it is unable to “discern accurately all of the shareholders of its rubber suppliers.” *See* October 29 Guizhou Tire questionnaire response at 8; *see* , *also* , November 27 Guizhou Tire supplemental questionnaire response at 42. Based on the record evidence, we preliminarily determine that the provision of natural and synthetic rubber by SOEs to OTR tire producers in the PRC is countervailable. In its response, the GOC listed the industries that use natural and synthetic rubbers: “tires, rubber bands and tubes, shoes, machinery components and commodity products.” *See* October 29 GOC questionnaire response at 10. We preliminarily find that these industries are “limited in number” and, hence, that the provision of natural and synthetic rubber is specific under section 771(5A)(D)(iii)(I) of the Act. We further determine preliminarily that the GOC's provision of natural and synthetic rubber through SOEs is a financial contribution within the meaning of section 771(5)(D)(iii) and that it confers a benefit under section 771(5)(E)(iv) of the Act to the extent that it is provided for less than adequate remuneration. To determine whether a benefit has been conferred by the provision of goods, the Department follows the hierarchy set forth in 19 CFR 351.511(a)(2). The potential benchmarks provided in 19 CFR 351.511(a)(2) are listed in hierarchical order by preference:

(1)market prices from actual transactions within the country under investigation;

(2)world market prices that would be available to purchasers in the country under investigation; or

(3)an assessment of whether the government price is consistent with market principles. Under 19 CFR 351.511(a)(2)(1), the first choice of a benchmark is “market prices from actual transactions within the country under investigation.” Because the GOC did not provide the requested information that is necessary for the Department to determine whether we can use domestic prices as a benchmark, we find that we must apply facts available in accordance with sections 776(a)(1) and

(2)of the Act. Sections 776(a)(1) and

(2)of the Act provide that the Department shall apply “facts otherwise available” if, *inter alia* , necessary information is not on the record or an interested party or any other person:

(A)withholds information that has been requested;

(B)fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and

(e)of section 782 of the Act;

(C)significantly impedes a proceeding; or

(D)provides information that cannot be verified as provided by section 782(i) of the Act. Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits then, subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information if it can do so without undue difficulties. We asked the GOC to provide information about the natural rubber and synthetic rubber industries in the PRC including a description of the industry, users of natural rubber and synthetic rubber in the PRC, and whether natural rubber and synthetic rubber producers are SOEs. Only limited information was provided in the GOC's questionnaire response dated October 29, 2007 and its supplemental questionnaire response dated November 27, 2007. In particular, in its October 29, 2007 supplemental questionnaire response, the GOC did not provide a complete list of rubber suppliers or indicate the level of its ownership interest in any rubber producer. Thus, we are not able to gauge the extent of government involvement in the PRC natural rubber and synthetic rubber industries, determine the extent to which the domestic rubber market are dominated by SOEs, or ascertain the extent to which government involvement distorts the prices for these products in the PRC. Accordingly, pursuant to sections 776(a)(2)(A) and 776(a)(2)(C) of the Act, we are relying on facts otherwise available. Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Section 776(b) of the Act also authorizes the Department to use as adverse facts available

(AFA)information derived from the petition, the final determination, a previous administrative review, or other information placed on the record. In selecting from among the facts available for the GOC, the Department has determined that an adverse inference is warranted, pursuant to section 776(b) of the Act. We find that the GOC did not act to the best of its ability in complying with our requests for information because it should have information pertaining to state ownership and control over the rubber industry within its control, but did not provide this information, as described above. As an adverse inference, we have rejected internal prices in the PRC because we do not know the share of natural rubber or synthetic rubber produced and sold by SOEs in the PRC. As explained in the preambular language addressing 19 CFR 351.511(a), “While we recognize that government involvement in a market may have some impact on the price of the good or service in that market, such distortion will normally be minimal unless the government provider constitutes a majority, or in certain circumstances, a substantial portion of the market.” *See Countervailing Duties; Final Rule* , 63 FR 65348, 65377 (November 25, 1998) (CVD Preamble). Because we have preliminarily determined that we cannot consider domestic prices as a potential benchmark, we turn to the next level of the hierarchy in section 351.511(a)(2) of the Department's regulations ( *i.e* , world market prices that would be available to purchasers in the country under investigation). We have calculated annual 2006 benchmarks for natural rubber and synthetic rubber based on 2006 world market prices for natural rubber and synthetic rubber as reported by the International Rubber Study Group (IRSG). 19 *See* Memorandum to the File, “Countervailing Duty Investigation on Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: Natural Rubber and Synthetic Rubber Benchmarks” (December 7, 2007) ( *Rubber Benchmarks Memorandum* ). 19 The IRSG is comprised of a number of countries including several Asian countries, European countries and the United States. The IRSG provides price data for natural rubber from the commodity exchanges in New York, Singapore, and Europe. The IRSG also provides export price data for synthetic rubber from the USA, Japan, and France. We note that the IRSG's natural rubber prices are FOB Singapore and synthetic rubber prices are FAS. Therefore, pursuant to 19 CFR 351.511(a)(2)(iv), we have added freight charges and import charges including VAT to calculate a price for natural rubber and synthetic rubber that Starbright, Guizhou Tire, and TUTRIC would have paid on the world market for these products. We obtained June 2006 freight rates from Maersk Lines. *See Rubber Benchmarks Memorandum* . We obtained the PRC import duties for natural rubber and synthetic rubber from Asia Pacific Economic Cooperation

(APEC)Tariff Database at *http://www.apectariff.org/* . Imports of natural rubber into the PRC are subject to an import duty of 20 percent and imports of synthetic rubber into the PRC are subject to an import duty of 7.5 percent. *See Rubber Benchmarks Memorandum* . Finally, we obtained PRC VAT rates from the Decree 134 of the State Council, 1993. *See Rubber Benchmarks Memorandum* . We also note that Guizhou Tire also did not provide certain requested information. Specifically, in our supplemental questionnaire, we asked Guizhou Tire to identify which of its natural rubber and synthetic rubber suppliers were SOEs. As noted above, Guizhou Tire did not provide this information. Thus, in reaching our preliminary determination, pursuant to sections 776(a)(2)(A) and

(C)of the Act, we are relying on facts otherwise available to determine Guizhou Tire's benefit under the government's provision of natural rubber and synthetic rubber for less than adequate remuneration. For the preliminary determination, we have relied on neutral facts available and treated a portion of Guizhou Tire's natural rubber and synthetic rubber as having been purchased from SOEs. Specifically, we have identified certain suppliers of natural rubber and synthetic rubber to Guizhou Tire as SOEs. *See Rubber Benchmarks Memorandum and Guizhou Tire's Calculation Memorandum* . We are treating purchases from these suppliers as purchases from SOEs. We calculated the respective percent of the quantity of total natural rubber and synthetic rubber purchases that Guizhou Tire purchased from known SOEs during the POI. We then applied these percentages to the quantity and value of Guizhou Tire's natural rubber and synthetic rubber purchases from unknown suppliers. *See Rubber Benchmarks Memorandum* and *Guizhou Tire's Calculation Memorandum* . To calculate the natural rubber benefit, we compared the domestic prices paid by Starbright, Guizhou Tire, and TUTRIC during the POI for natural rubber from SOEs to the 2006 C&F, duty-paid IRSG-based price for natural rubber. We treated the difference in the amounts that Starbright, Guizhou Tire, and TUTRIC would have paid by comparing our calculated benchmark to the amounts actually paid by these companies as the benefit. To calculate the synthetic rubber benefit, we compared the domestic prices paid by Starbright, Guizhou Tire, and TUTRIC for synthetic rubber from SOEs to the 2006 C&F duty-paid IRSG-based price for synthetic rubber. We treated the difference in the amounts that Starbright, Guizhou Tire, and TUTRIC would have paid by comparing our calculated benchmark to the amounts actually paid by these companies as the benefit. We then summed these two benefits for each company and divided this benefit by that company's respective sales. On this basis, we preliminarily determine a countervailable subsidy of 1.38, 1.92, and 2.82 percent *ad valorem* for Guizhou Tire, Starbright, and TUTRIC, respectively. II. Programs Preliminarily Determined To Be Not Countervailable A. Provision of Electricity for Less than Adequate Remuneration Petitioners allege that the GOC provides electricity to certain FIEs and SOEs on a preferential basis. According to the GOC, electricity in the PRC is produced by numerous power plants and it is transmitted for local distribution by two state-owned transmission companies, State Grid and China South Power Grid. Generally, prices for uploading electricity to the grid and transmitting it are regulated by the GOC, as are the final sales prices. *See Circular on Implementation Measures Regarding Reform of Electricity Prices* (Fagaijiage

(2005)No. 514) at Appendix 3 of the *Provisional Measures on Prices for Sales of Electricity* at Article 29 (“Government departments in charge of pricing at various levels shall be responsible for the administration and supervision of electricity sales prices”), provided in the October 15 GOC questionnaire response, Exhibit GOC-G-2. Electricity consumers are divided into broad categories such as residential, commercial, large-scale industry, and agriculture. The rates charged vary across customer categories and within customer categories based on the amount of electricity consumed. Moreover, among industrial users, certain industries are specifically broken out and these industries receive special, discounted rates. Specifically, Article 8 of the *Provisional Measures on Prices for Sales of Electricity* provides that certain small and medium-sized chemical fertilizer producers shall be provided a separate electricity sales price. All other end users are charged the standard electricity price for industrial and commercial users. Thus, according to the GOC, there is no program to provide electricity at a discounted rate to SOEs or FIEs. The GOC provided a list of benchmark rates by province. We tied the rates reported by respondents to the GOC-provided schedule and to respondents supplier-specific schedules. *See* GOC and respondents' October 15 questionnaire responses and November 27 supplemental questionnaire responses. We saw no indication of discounted rates. 20 20 Guizhou Tire's consolidated financial statements indicate numerous energy subsidies, provided in the form of grants and rebates. We did not have sufficient time to collect information on these potential subsidies; however, in accordance to section 351.501 of the Act, we intend to examine these subsidies further during the course of this investigation and will issue an interim analysis on them prior to the final determination. Thus, based on the information on the record there is no indication of provision of electricity to the respondents at less than adequate remuneration pursuant to their status as SOEs or FIEs. On this basis, we preliminarily determine that the GOC's provision of electricity does not confer a countervailable subsidy. *See* , *also* , *CWP Preliminary* , 72 FR at 63883. B. VAT Export Rebates Petitioners allege that OTR tire exporters may apply to the tax authorities for a refund up to 13 percent for taxes paid for inputs in exported goods, and that the amount is in excess of the indirect tax levied on the production and distribution of the same product sold in the domestic market. According to the GOC, the “exemption, deduction and refund” of VAT applies if a manufacturer exports its self-produced goods by itself or via a trading company. *See* Article 1 of the *Circular on Further Promotion of Methodology of “Exemption, Deduction, and Refund” of Tax for Exported Goods* (CAISHUI

(2002)No. 7) provided in the GOC October 15 response at Exhibit GOC-P-4. The GOC reported the VAT levied on domestic sales of OTR tires during the POI was 17 percent and the VAT rebated for export sales of OTR tires during the POI was 13 percent. The Department's regulations state that in the case of an exemption upon export of indirect taxes, a benefit exists only to the extent that the Department determines that the amount exempted “exceeds the amount levied with respect to the production and distribution of like products when sold for domestic consumption.” 19 CFR 351.517(a) and 19 CFR 351.102 (for a definition of “indirect tax”). Because the VAT rebate applicable to exported OTR tires during the POI (13 percent) was less than the VAT levied on domestic sales of OTR tires during the POI (17 percent), the Department preliminarily determines that, for the purposes of this investigation, the VAT refund received upon the export of OTR tires does not confer a countervailable benefit. *See* , *also* , *CWP Prelim* , 72 FR at 63884. III. Programs Preliminarily Determined To Be Not Used We preliminarily determine that Guizhou Tire, Starbright, and TUTRIC did not apply for or receive benefits during the POI under the programs listed below. A. Discounted Loans for Export-Oriented Enterprises B. Loan Forgiveness for SOEs C. Foreign Currency Retention Scheme D. Provision of Land for Less Than Adequate Remuneration to FIEs E. Preferential Tax Policies for Enterprises with Foreign Investment (Two Free, Three Half Income Program) F. Preferential Tax Policies for Export-Oriented FIEs G. Corporate Income Tax Refund Program for Reinvestment of FIE Profits in Export-Oriented Enterprises H. Tax Benefits for FIEs in Encouraged Industries that Purchase Domestic Origin Machinery I. VAT Rebate for FIE Purchases of Domestically Produced Equipment J. Funds for Outward Expansion of Industries in Guangdong Province K. Export Interest Subsidy Funds for Enterprises Located in Guangdong and Zhejiang Provinces L. Grants to Loss-Making SOEs M. Exemption for SOEs from Distributing Dividends to the State N. Preferential Tax Policies for Advanced Technology Foreign Invested Enterprises O. Preferential Tax Policies for Knowledge or Technology Intensive FIEs P. Preferential Tax Policies for High or New Technology FIEs Q. Preferential Tax Policies for Research and Development by FIEs R. Provincial Support in Antidumping Proceedings For purposes of this preliminary determination, we have relied on respondents' submissions to preliminarily determine non-use of the programs listed above. During the course of verification, the Department will further examine whether these programs were used by respondents during the POI. IV. Programs Preliminarily Determined To Be Terminated Exemption from Payment of Staff and Worker Benefits for Export Oriented Industries The Department determined that this program was terminated on January 1, 2002, with no residual benefits. *See CFS Final* , 72 FR 60645. V. Programs For Which More Information Is Required A. Grants to the Tire Industry for Electricity Petitioners allege that the GOC has provided grants to cover a portion of electricity expenses for OTR tire producers. Petitioners also allege that the GOC authorizes local governments to offer grants to tire producers in order to cover the producers electricity costs. Guizhou Tire, Starbright, and TUTRIC stated that they did not receive benefits under this program during the POI. However, according to its financial statements, Guizhou Tire appears to receive subsidies for energy. *See* October 15 Guizhou Tire questionnaire response, Exhibit GTC-5. At this time, we do not have sufficient information from the GOC or Guizhou Tire to determine whether this assistance received by Guizhou Tire is a countervailable subsidy. We intend to seek further information and issue an interim analysis describing our preliminary findings with respect to this program before the final determination so that parties will have the opportunity to comment on our findings before the final determination. B. Provision of Water to FIEs for Less than Adequate Remuneration Petitioners allege that the GOC provides water to certain FIEs on a preferential basis. According to the GOC, water supply is localized in the PRC. Generally, water prices are regulated by local governments pursuant to Article 26.2 of the *Regulation on Administration of City Water Supply* (Decree 158 of the State Council, 1994) provided within the October 15 GOC response at Exhibit GOC-H-1. The GOC states that water prices vary depending on the end user to which the water is provided. The GOC also states that local authorities establish their own categories of end users. End users in each of these categories are charged the same water price. Guizhou Tire is not an FIE and as such has reported that it is not eligible for this program. *See* October 15 Guizhou Tire questionnaire response at 26. Starbright states it pumps water from its own wells, and therefore the company is not provided water by the GOC. *See* October 15 Starbright questionnaire response at 19. TUTRIC has provided its water bills; however, the company states that it does not have access to any water pricing schedules or tariffs. *See* October 15 TUTRIC questionnaire response at Exhibit 13. The GOC did not provide water pricing schedules as requested in our supplemental questionnaire. It responded that the Department's investigation “pertains to an alleged ‘program' pertaining to the provision of land and electricity and does not involve the alleged provision of water.” *See* November 27 GOC supplemental questionnaire at 19. This was the result of a mislabled section heading in our questionnaire, which referred to SOEs, instead of FIEs. At this time, we do not have sufficient information from the GOC to determine whether TUTRIC received water on a preferential basis. Specifically, we will ask the GOC again for the relevant water pricing schedule and issue an interim analysis describing our preliminary findings with respect to this program before the final determination so that parties will have the opportunity to comment on our findings before the final determination. C. Debt Forgiveness from State-Owned Banks to Hebei Tire Bridgestone alleges that, in approving the acquisition of Hebei Tire by Starbright, the Hebei provincial government authorized the transfer of Hebei Tire's SOCB debt at a discount to Starbright (or its parent, GPX) in exchange for equity, thereby forgiving part of the debt. Bridgestone and petitioners also allude to the possibility that Hebei Tire's SOCB debt was forgiven before the transaction, essentially to make it a more attractive buy. As explained in the “Change In Ownership” section above, at this time we do not have sufficient information from the GOC or Starbright regarding the role played by the GOC in the Hebei Tire sale. We intend to seek further information on this question and to issue an interim analysis describing our preliminary findings with respect to this program before the final determination so that parties will have the opportunity to comment on our findings before the final determination. D. Non-Tradable Share Reform As mentioned under the “Case History” section of this notice, the Department determined to investigate the Non-Tradable Share Reform program on November 14, 2007. Given that the questionnaire responses are due on December 10, 2007 (extended in response to the respondents' request), the Department does not have the information needed to and analyze this program for this preliminary determination. We will therefore analyze the responses to this allegation and address all arguments fully in a post-preliminary analysis memorandum. Verification In accordance with section 782(i)(1) of the Act, we intend to verify the information submitted by the respondents prior to making our final determination. Suspension of Liquidation In accordance with section 703(d)(1)(A)(i) of the Act, we calculated an individual rate for each producer/exporter of the subject merchandise. We preliminarily determine the total estimated net countervailable subsidy rates to be: Exporter/Manufacturer Net Subsidy Rate Guizhou Tire Co., Ltd. 3.13 Hebei Starbright Tire Co., Ltd. 2.38 Tianjin United Tire & Rubber International Co., Ltd. 6.59 All-Others 4.44 Sections 703(d) and 705(c)(5)(A) of the Act state that for companies not investigated, we will determine an all-others rate by weighting the individual company subsidy rate of each of the companies investigated by each company's exports of the subject merchandise to the United States. However, the all-others rate may not include zero and *de minimis* rates or any rates based solely on the facts available. In this investigation, all three individual rates can be used to calculate the all-others rate. Therefore, we have assigned the weighted-average of these three individual rates to all-other producers/exporters of OTR tires from the PRC. In accordance with sections 703(d)(1)(B) and

(2)of the Act, we are directing U.S. Customs and Border Patrol

(CBP)to suspend liquidation of all entries of OTR tires from the PRC that are entered, or withdrawn from warehouse, for consumption on or after the date of the publication of this notice in the **Federal Register** , and to require a cash deposit or bond for such entries of merchandise in the amounts indicated above. ITC Notification In accordance with section 703(f) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information relating to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Import Administration. In accordance with section 705(b)(2)(B) of the Act, if our final determination is affirmative, the ITC will make its final determination within 45 days after the Department makes its final determination. Disclosure and Public Comment In accordance with 19 CFR 351.224(b), we will disclose to the parties the calculations for this preliminary determination within five days of its announcement. Case briefs for this investigation must be submitted no later than one week after the issuance of the last verification report. *See* 19 CFR 351.309(c) (for a further discussion of case briefs). Rebuttal briefs must be filed within five days after the deadline for submission of case briefs, pursuant to 19 CFR 351.309(d)(1). A list of authorities relied upon, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Section 774 of the Act provides that the Department will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held two days after the deadline for submission of the rebuttal briefs, pursuant to 19 CFR 351.310(d), at the U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time. Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice, pursuant to 19 CFR 351.310(c). Requests should contain:

(1)the party's name, address, and telephone numbers;

(2)the number of participants; and,

(3)a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs. This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act. Dated: December 7, 2007. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E7-24397 Filed 12-14-07; 8:45 am] BILLING CODE 3510-DS-S COMMITTEE FOR THE IMPLEMENTATION OF TEXTILE AGREEMENTS Extension of Period of Determination for Textile and Apparel Safeguard Action on Imports from Honduras of Cotton, Wool and Man-Made Fiber Socks December 11, 2007. AGENCY: The Committee for the Implementation of Textile Agreements (the Committee) ACTION: Notice. SUMMARY: The Committee is extending through January 18, 2008 the period for making a determination on whether to request consultations with Honduras regarding imports of cotton, wool and man-made fiber socks (merged Category 332/432 and 632 part). FOR FURTHER INFORMATION CONTACT: Sergio Botero, Office of Textiles and Apparel, U.S. Department of Commerce,

(202)482-2487. SUPPLEMENTARY INFORMATION: Authority: Title III, Subtitle B, Section 321 through Section 328 of the Dominican Republic-Central America-United States Free Trade Agreement (“CAFTA-DR” or the “Agreement”) Implementation Act; Article 3.23 of the Dominican Republic-Central America-United States Free Trade Agreement. BACKGROUND: In accordance with section 4 of the Committee's Procedures (“Procedures”) for considering action under the CAFTA-DR textile and apparel safeguard, (71 FR 25157, April 28, 2006), the Committee decided, on its own initiative, to consider whether imports of Honduran origin cotton, wool and man-made fiber socks are being imported into the United States in such increased quantities, in absolute terms or relative to the domestic market for cotton, wool and man-made fiber socks, and under such conditions as to cause serious damage, or actual threat thereof, to the U.S. industry producing these products. On August 21, 2007 the Committee solicited public comments regarding a possible safeguard action on imports from Honduras of cotton, wool and man-made fiber socks (merged Category 332/432 and 632 part). This 30 day period allowed the public an opportunity to provide information and analysis to assist the Committee in considering this issue and in determining whether a safeguard action is appropriate. See **Solicitation of Public Comments Regarding Possible Safeguard Action on Imports from Honduras of Cotton, Wool and Man-Made Fiber Socks** , 72 FR 46611. The Procedures state that the Committee will make a determination within 60 calendar days of the close of the public comment period as to whether the United States will request consultations with Honduras. However, if the Committee is unable to make a determination within 60 calendar days, it will cause to be published a notice in the Federal Register, including the date, by which it will make a determination. The original 60-day determination period for this case expired on November 19, 2007. On November 6, 2007, the Committee decided to extend the deadline for making its determination until December 19, 2007. (72 FR 64050, November 14, 2007). At this time, the Committee is unable to make a determination within the extended period because it is continuing to evaluate conditions in the market as well as examining the current trade data and other relevant information available. Therefore, the Committee is further extending the determination period to January 18, 2008. R. Matthew Priest, Chairman, Committee for the Implementation of Textile Agreements. [FR Doc. E7-24370 Filed 12-14-07; 8:45 am] BILLING CODE 3510-DS COMMITTEE FOR THE IMPLEMENTATION OF TEXTILE AGREEMENTS Limitation of Duty-free Imports of Apparel Articles Assembled in Haiti under the Haitian Hemispheric Opportunity Through Partnership for Encouragement Act

(HOPE)December 11, 2007. AGENCY: Committee for the Implementation of Textile Agreements (CITA). ACTION: Publishing the 12-Month Cap on Duty-Free Benefits EFFECTIVE DATE: December 17, 2007. FOR FURTHER INFORMATION CONTACT: Maria Dybczak, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce,

(202)482-3651. SUPPLEMENTARY INFORMATION: Authority: The Caribbean Basin Recovery Act (CBERA), as amended by the Haitian Hemispheric Opportunity Through Partnership for Encouragement Act of 2006 (collectively, HOPE), Title V of the Tax Relief and Health Care Act of 2006. HOPE provides for duty-free treatment for certain apparel articles imported directly from Haiti. Section 213A (b)(2) of HOPE provides duty-free treatment for apparel articles wholly assembled, or knit-to-shape, in Haiti from any combination of fabrics, fabric components, components knit-to-shape, and yarns, if the sum of the cost or value of materials produced in Haiti or one or more countries, as described in HOPE, or any combination thereof, plus the direct costs of processing operations performed in Haiti or one or more countries, as described in HOPE, or any combination thereof, is not less than an applicable percentage of the declared customs value of such apparel articles, subject to quantitative limitation. Section 213A (a)(1)(B) of HOPE provides that the initial applicable one-year period of quantitative limitation means the one-year period beginning on the date of the enactment of HOPE, beginning on December 20, 2006. Section 213A (b)(3) of HOPE provides that annual quantitative limitations will be recalculated for each subsequent 12-month period. Section 213A (b)(3) of HOPE also provides that the quantitative limitations for qualifying apparel imported from Haiti under this provision for the twelve-month period beginning on December 20, 2007 will be an amount not to exceed 1.25 percent of the aggregate square meter equivalent of all apparel articles imported into the United States in the most recent 12-month period for which data are available. For purposes of this notice, the most recent 12-month period for which data are available as of December 20, 2007 is the 12-month period ending on October 31, 2007. For the one-year period beginning on December 20, 2007 and extending through December 19, 2008, the quantity of imports eligible for preferential treatment under this provision is 313,000,534 square meters equivalent. Apparel articles entered in excess of these quantities will be subject to otherwise applicable tariffs. These quantities are calculated using the aggregate square meters equivalent of all apparel articles imported into the United States, derived from the set of Harmonized System lines listed in the Annex to the World Trade Organization Agreement on Textiles and Clothing (ATC), and the conversion factors for units of measure into square meter equivalents used by the United States in implementing the ATC. R. Matthew Priest, Chairman, Committee for the Implementation of Textile Agreements. [FR Doc. E7-24373 Filed 12-14-07; 8:45 am] BILLING CODE 3510-DS DEPARTMENT OF DEFENSE Office of the Secretary Manual for Courts-Martial; Proposed Amendments AGENCY: Department of Defense; Joint Service Committee on Military Justice (JSC). ACTION: Notice of Public Response to Proposed Amendments to the Manual for Courts-Martial, United States (2005 ed.) (MCM). SUMMARY: The JSC is forwarding final proposed amendments to the MCM to the Department of Defense. The proposed changes constitute the 2007 annual review required by the MCM and DoD Directive 5500.17, “Role and Responsibilities of the Joint Service Committee

(JSC)on Military Justice,” May 3, 2003. The proposed changes concern the rules of procedure and evidence and the punitive articles applicable in trials by courts-martial. These proposed changes have not been coordinated within the Department of Defense under DoD Directive 5500.1, “Preparation, Processing and Coordinating Legislation, Executive Orders, Proclamations, Views Letters Testimony,” June 15, 2007, and do not constitute the official position of the Department of Defense, the Military Departments, or any other Government agency. SUPPLEMENTARY INFORMATION: Background On September 24, 2007, the JSC published a notice of Proposed Amendments to the Manual for Courts-Martial and a Notice of Public Meeting to receive comments on these proposals. The public meeting was held on October 24, 2007. No member of the public attended the meeting and no written comments were received. In response to a request from the House of Representatives to review procedures applicable to Article 32 proceedings, the proposed amendments republished below include a new Section 1(b) addressing Rule for Courts-Martial (R.C.M.) 405(h)(3). Proposed Amendments After Period for Public Comment The proposed recommended amendments to the Manual for Courts-Martial to be forwarded through the DoD for action by Executive Order of the President of the United States are as follows: *Section 1.* Part II of the Manual for Courts-Martial, United States, is amended as follows:

(a)R.C.M. 103 is amended by adding the following new subparagraph

(20)and re-designating the current subparagraph

(20)as subparagraph (21): “(20) ‘Writing’ includes printing and typewriting and reproductions of visual symbols by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.”

(b)R.C.M. 405(h)(3) is amended to read as follows: “(3) *Access by spectators.* Access by spectators to all or part of the proceedings may be restricted or foreclosed in the discretion of the commander who directed the investigation or the investigating officer. Article 32 investigations are public hearings and should remain open to the public whenever possible. When an overriding interest exists that outweighs the value of an open investigation, the hearing may be closed to spectators. Any closure must be narrowly tailored to achieve the overriding interest that justified the closure. Commanders or investigating officers must conclude that no lesser methods short of closing the Article 32 can be used to protect the overriding interest in the case. Commanders or investigating officers must conduct a case-by-case, witness-by-witness, circumstance-by-circumstance analysis of whether closure is necessary. If a commander or investigating officer believes closing the Article 32 investigation is necessary, the commander or investigating officer must make specific findings of fact in writing that support the closure. The written findings of fact must be included in the Article 32 investigating officer's report. Examples of overriding interests may include: preventing psychological harm or trauma to a child witness or an alleged victim of a sexual crime, protecting the safety of a witness or alleged victim, protecting classified material, and receiving evidence where a witness is incapable of testifying in an open setting.”

(c)R.C.M. 1103(b)(2)(B) is amended to read as follows: “(B) *Verbatim transcript required.* Except as otherwise provided in subsection

(j)of this rule, the record of trial shall include a verbatim transcript of all sessions except sessions closed for deliberations and voting when:”

(d)R.C.M. 1103(e) is amended to read as follows: “(e) *Acquittal; courts-martial resulting in findings of not guilty only by reason of lack of mental responsibility; termination prior to findings; termination after findings.* Notwithstanding subsections (b), (c), and

(d)of this rule, if proceedings resulted in an acquittal of all charges and specifications, in a finding of not guilty only by reason of lack of mental responsibility of all charges and specifications, or if the proceedings were terminated by withdrawal, mistrial, or dismissal before findings, or if the proceedings were terminated after findings by approval of an administrative discharge in lieu of court-martial, the record may consist of the original charge sheet, a copy of the convening order and amending orders (if any), and sufficient information to establish jurisdiction over the accused and the offenses (if not shown on the charge sheet). The convening authority or higher authority may prescribe additional requirements.”

(e)R.C.M. 1103(g)(1)(A) is amended to read as follows: “(A) *In general.* In general and special courts-martial which require a verbatim transcript under subsections

(b)or

(c)of this rule and are subject to a review by a Court of Criminal Appeals under Article 66, the trial counsel shall cause to be prepared an original record of trial.”

(f)R.C.M. 1103(j)(2) is amended to read as follows: “(2) *Preparation of written record.* When the court-martial, or any part of it, is recorded by videotape, audiotape, or similar material under subsection (j)(1) of this rule, a written, as defined in R.C.M. 103, transcript or summary as required in subsection (b)(2)(A), (b)(2)(B), (b)(2)(C), or

(c)of this rule, as appropriate, shall be prepared in accordance with this rule and R.C.M. 1104 before the record is forwarded under R.C.M. 1104(e), unless military exigencies prevent transcription.”

(g)R.C.M. 1104(a)(1) is amended to read as follows: “(1) *In general.* A record is authenticated by the signature of a person specified in this rule who thereby declares that the record accurately reports the proceedings. An electronic record of trial may be authenticated with the electronic signature of the military judge or other authorized person. Service of an authenticated electronic copy of the record of trial with a means to review the record of trial satisfies the requirement of service under R.C.M. 1105(c) and 1305(d). No person may be required to authenticate a record of trial if that person is not satisfied that it accurately reports the proceedings.”

(h)R.C.M. 1106(d) is amended to read as follows: “(d) *Form and content of recommendation.*

(1)The purpose of the recommendation of the staff judge advocate or legal officer is to assist the convening authority to decide what action to take on the sentence in the exercise of command prerogative. The staff judge advocate or legal officer shall use the record of trial in the preparation of the recommendation, and may also use the personnel records of the accused or other matters in advising the convening authority whether clemency is warranted.

(2)*Form.* The recommendation of the staff judge advocate or legal officer shall be a concise written communication.

(3)*Required contents.* The staff judge advocate or legal advisor shall provide the convening authority with a copy of the report of results of trial, setting forth the findings, sentence, and confinement credit to be applied, a copy or summary of the pretrial agreement, if any, any recommendation for clemency by the sentencing authority, made in conjunction with the announced sentence, and the staff judge advocate's concise recommendation.”

(i)R.C.M. 1111 is amended by inserting the following sentence at the end of the rule: “Forwarding of an authenticated electronic copy of the record of trial satisfies the requirements under this rule.”

(j)R.C.M. 1113 is amended by adding the following new subparagraph

(d)and re-designating the current subparagraph

(d)as subparagraph (e): “(d) *Self-executing punishments.* Under regulations prescribed by the Secretary concerned, a dishonorable or bad conduct discharge that has been approved by an appropriate convening authority may be self-executing after final judgment at such time as:

(1)The accused has received a sentence of no confinement or has completed all confinement;

(2)The accused has been placed on excess or appellate leave; and,

(3)The appropriate official has certified that the accused's case is final. Upon completion of the certification, the official shall forward the certification to the accused's personnel office for preparation of a final discharge order and certificate.”

(k)R.C.M. 1114(a) is amended by inserting the following as subsection (a)(4): “(4) *Self-executing final orders.* An order promulgating a self-executing dishonorable or bad conduct discharge need not be issued. The original action by a convening authority approving a discharge and certification by the appropriate official that the case is final may be forwarded to the accused's personnel office for preparation of a discharge order and certificate.”

(l)R.C.M. 1305(b) is amended by changing the first sentence to read as follows: “(b) *Contents.* The summary court-martial shall prepare a written record of trial, which shall include:”

(m)R.C.M. 1305(c) is amended to read as follows: “(c) *Authentication.* The summary court-martial shall authenticate the record by signing the record of trial. An electronic record of trial may be authenticated with the electronic signature of the summary court-martial.”

(n)R.C.M. 1305(d)(1)(A) is amended to read as follows: “(A) *Service.* The summary court-martial shall cause a copy of the record of trial to be served on the accused as soon as it is authenticated. Service of an authenticated electronic copy of the record of trial with a means to review the record of trial satisfies the requirement of service under this rule.”

(o)R.C.M. 1306(b)(3) is amended to read as follows: “(3) *Signature.* The action on the record of trial shall be signed by the convening authority. The action on an electronic record of trial may be signed with the electronic signature of the convening authority.” *Section 2.* Part IV of the Manual for Courts-Martial, United States, is amended as follows:

(a)Paragraph 14, Article 90, Assaulting or willfully disobeying superior commissioned officer, paragraph c.(2)(g) is amended to read as follows: “c.(2)(g) *Time for compliance.* When an order requires immediate compliance, an accused's declared intent not to obey and the failure to make any move to comply constitutes disobedience. Immediate compliance is required for any order which does not explicitly or implicitly indicate that delayed compliance is authorized or directed. If an order requires performance in the future, an accused's present statement of intention to disobey the order does not constitute disobedience of that order, although carrying out that intention may.”

(b)Paragraph 44, Article 119, Manslaughter, paragraph b. is amended to read as follows: “b. *Elements.*

(1)Voluntary manslaughter.

(a)That a certain named or described person is dead;

(b)That the death resulted from the act or omission of the accused;

(c)That the killing was unlawful; and

(d)That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon the person killed. Note: Add the following if applicable.

(e)That the person killed was a child under the age of 16 years.

(2)Involuntary manslaughter.

(a)That a certain named or described person is dead;

(b)That the death resulted from the act or omission of the accused;

(c)That the killing was unlawful; and

(d)That this act or omission of the accused constituted culpable negligence, or occurred while the accused was perpetrating or attempting to perpetrate an offense directly affecting the person other than burglary, sodomy, rape, robbery, or aggravated arson. Note: Add the following if applicable.

(e)That the person killed was a child under the age of 16 years.”

(c)Paragraph 44, Article 119, Manslaughter, paragraph c.(1)(c) is added following paragraph c.(1)(b): “(c) *When committed upon a child under 16 years of age.* The maximum punishment is increased when voluntary manslaughter is committed upon a child under 16 years of age. The accused's knowledge that the child was under 16 years of age at the time of the offense is not required for the increased maximum punishment.”

(d)Paragraph 44, Article 119, Manslaughter, paragraph c.(2)(c) is added following paragraph c.(2)(b): “(c) *When committed upon a child under 16 years of age.* The maximum punishment is increased when involuntary manslaughter is committed upon a child under 16 years of age. The accused's knowledge that the child was under 16 years of age at the time of the offense is not required for the increased maximum punishment.”

(e)Paragraph 44, Article 119, Manslaughter, paragraph e.(3) is added following paragraph e.(2): “(3) *Voluntary manslaughter of a child under 16 years of age.* Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.”

(f)Paragraph 44, Article 119, Manslaughter, paragraph e.(4) is added following paragraph e.(3): “(4) *Involuntary manslaughter of a child under 16 years of age.* Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.”

(g)Paragraph 44, Article 119, Manslaughter, paragraph f. is amended to read as follows: “f. *Sample specifications.*

(1)*Voluntary manslaughter.* In that_____(personal jurisdiction data), did, (at/on board—location) (subject matter jurisdiction data, if required), on or about_____, willfully and unlawfully kill_____, (a child under 16 years of age) by_____him/her

(on)the_____with a_____.

(2)*Involuntary manslaughter.* In that_____ (personal jurisdiction data), did, (at/on board location) (subject matter jurisdiction data, if required), on or about_____, (by culpable negligence) (while (perpetrating) (attempting to perpetrate) an offense directly affecting the person of_____, to wit: (maiming) (a battery) (_____)) unlawfully kill_____ (a child under 16 years of age) by_____ him/her

(on)the_____ with a_____.” *Section. 3.* These amendments shall take effect on [30 days after signature].

(a)Nothing in these amendments shall be construed to make punishable any act done or omitted prior to [30 days after signature] that was not punishable when done or omitted.

(b)Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceedings, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to [30 days after signature], and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed. Dated: December 11, 2007. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, DoD. [FR Doc. E7-24388 Filed 12-14-07; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Office of the Secretary of Defense [DoD-2007-OS-0132] Privacy Act of 1974; Systems of Records AGENCY: Defense Finance and Accounting Service, DOD. ACTION: Notice to add a new System of Records. SUMMARY: The Defense Finance and Accounting Service

(DFAS)is proposing to add a system of records notice to its inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended. DATES: This action will be effective without further notice on January 16, 2008 unless comments are received that would result in a contrary determination. ADDRESSES: Send comments to the FOIA/PA Program Manager, Corporate Communications and Legislative Liaison, Defense Finance and Accounting Service, 6760 E. Irvington Place, Denver, CO 80279-8000. FOR FURTHER INFORMATION CONTACT: Ms. Linda Krabbenhoft at

(303)676-6045. SUPPLEMENTARY INFORMATION: The Defense Finance and Accounting Service notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the **Federal Register** and are available from the address above. The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on December 11, 2006, to the House Committee on Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget

(OMB)pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, `Federal Agency Responsibilities for Maintaining Records About Individuals,' dated December 12, 2000, 65 FR 239. Dated: December 11, 2007. L.M. Bynum, Alternative OSD Federal Register Liaison Officer, Department of Defense. T7040 System name: Work Year and Personnel Cost Reporting. System location: Defense Information Systems Agency (DISA), Defense Enterprise Computing Center

(DECC)Mechanicsburg—Bldg. 308, Naval Support Activity (NSA), 5450 Carlisle Pike, Mechanicsburg, PA 17050-2411. Categories of individuals covered by the system: Department of Defense Navy civilian employees. Categories of records in the system: Individual's name, Social Security Numbers (SSN), work year and personnel cost data for U.S. Navy civilian employees. Authority for maintenance of the system: 5 U.S.C. 301, Departmental Regulations; Department of Defense Financial Management Regulation (DoDFMR) 7000.14-R, Vol. 4; 31 U.S.C. Sections 3511 and 3513; and E.O. 9397 (SSN). Purpose(s): This system will be the financial system of record and the single source for consolidated financial information for the Navy civilian employees. It will support the core financial requirements for the Work Year and Personnel Cost Reporting (WYPC). Routine uses of records maintained in the system, including categories of users and the purposes of such uses: In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows: The DoD ‘Blanket Routine Uses' published at the beginning of the DoD compilation of systems of records notices apply to this system. Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system: Storage: Records in files folders and electronic storage media. Retrievability: Individual's name and Social Security Number (SSN). Safeguards: Records are stored in an office building protected by guards, controlled screening, use of visitor registers, electronic access, and/or locks. Access to records is limited to individuals who are properly screened and cleared on a need-to-know basis in the performance of their duties. Passwords are used to control access to the system data, and procedures are in place to detect and deter browsing and unauthorized access. Retention and disposal: Records are temporary in nature; cut off at the end of the fiscal year; and destroyed 3 years after cutoff. Records are destroyed by degaussing, burning, or shredding. System manager(s) and address: System Manager, Defense Finance and Accounting Service, Systems Management Directorate, Navy Working Capital Fund Systems Office, 1240 East Ninth Street, Cleveland, OH 44199-8002. Notification procedure: Individuals seeking to determine whether information about themselves is contained in this record system should address written inquiries to the Defense Finance and Accounting Service, Freedom of Information/Privacy Act Program Manager, Corporate Communications and Legislative Liaison, 6760 E. Irvington Place, Denver, CO 80279-8000. Requests will contain individual's full name, Social Security Number (SSN), current address, telephone number, and provide a reasonable description of what they are seeking. Record access procedures: Individuals seeking access to information about themselves that is contained in this system should address written inquiries to Defense Finance and Accounting Service, Freedom of Information/Privacy Act Program Manager, Corporate Communications and Legislative Liaison, 6760 E. Irvington Place, Denver, CO 80279-8000. Requests will contain individual's full name, Social Security Number (SSN), current address, telephone number, and provide a reasonable description of what they are seeking. Contesting record procedures: The DFAS rules for accessing records, for contesting contents and appealing initial agency determinations are published in DFAS Regulation 5400.11-R; 32 CFR part 324; or may be obtained from Defense Finance and Accounting Service, Freedom of Information/Privacy Act Program Manager, Corporate Communications and Legislative Liaison, 6760 E. Irvington Place, Denver, CO 80279-8000. Record source categories: From individuals, and U.S. Navy. Exemptions claimed for the system: None. [FR Doc. E7-24376 Filed 12-14-07; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Department of Navy [USN-2007-0049] Privacy Act of 1974; System of Records AGENCY: Department of the Navy, DoD. ACTION: Notice to delete a System of Records. SUMMARY: The Department of the Navy is deleting a system of records in its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended. DATES: This proposed action will be effective without further notice on January 16, 2008 unless comments are received which result in a contrary determination. ADDRESSES: Send comments to the Department of the Navy, PA/FOIA Policy Branch, Chief of Naval Operations (DNS-36), 2000 Navy Pentagon, Washington, DC 20350-2000. FOR FURTHER INFORMATION CONTACT: Mrs. Doris Lama at

(202)685-6545. SUPPLEMENTARY INFORMATION: The Department of the Navy systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the **Federal Register** and are available from the address above. The Department of Navy proposes to delete a system of records notice from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed deletion is not within the purview of subsection

(r)of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of new or altered systems reports. Dated: December 11, 2007. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, Department of Defense. N01770-2 System name: Casualty Information Support System (September 22, 2006, 71 FR 55442). Reason: These records fall under the following DoD-wide system of records notice, A0600-8-1c AHRC DoD, Defense Casualty Information Processing System

(DIPS)published in the **Federal Register** on April 25, 2005 with number of 70 FR 21183. [FR Doc. E7-24377 Filed 12-14-07; 8:45 am] BILLING CODE 5001-07-P DEPARTMENT OF EDUCATION Submission for OMB Review; Comment Request AGENCY: Department of Education. SUMMARY: The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before January 16, 2008. ADDRESSES: Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503. Commenters are encouraged to submit responses electronically by e-mail to *oira_submission@omb.eop.gov* or via fax to

(202)395-6974. Commenters should include the following subject line in their response "Comment: [insert OMB number], [insert abbreviated collection name, e.g., "Upward Bound Evaluation"]. Persons submitting comments electronically should not submit paper copies. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget

(OMB)provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following:

(1)Type of review requested, e.g. new, revision, extension, existing or reinstatement;

(2)Title;

(3)Summary of the collection;

(4)Description of the need for, and proposed use of, the information;

(5)Respondents and frequency of collection; and

(6)Reporting and/or Recordkeeping burden. OMB invites public comment. Dated: December 11, 2007. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. Office of Special Education and Rehabilitative Services *Type of Review:* Extension of a currently approved collection. *Title:* Client Assistance Program. *Frequency:* Annually. *Affected Public:* Not-for-profit institutions; State, Local, or Tribal Gov't, SEAs or LEAs. *Reporting and Recordkeeping Hour Burden:* Responses: 56. Burden Hours: 896. *Abstract:* Form RSA-227 is used to analyze and evaluate the Client Assistance Program

(CAP)administered by designated CAP agencies. These agencies provide services to individuals seeking or receiving services from programs and projects authorized by the Rehabilitation Act of 1973, as amended. Data also are reported on information and referral services provided to any individual with a disability. Requests for copies of the information collection submission for OMB review may be accessed from *http://edicsweb.ed.gov,* by selecting the “Browse Pending Collections” link and by clicking on link number 3507. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., Potomac Center, 9th Floor, Washington, DC 20202-4700. Requests may also be electronically mailed to *ICDocketMgr@ed.gov* or faxed to 202-245-6623. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to *ICDocketMgr@ed.gov* 202-245-6536. Individuals who use a telecommunications device for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339. [FR Doc. E7-24270 Filed 12-14-07; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF EDUCATION Submission for OMB Review; Comment Request AGENCY: Department of Education. SUMMARY: The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before January 16, 2008. ADDRESSES: Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503. Commenters are encouraged to submit responses electronically by e-mail to *oira_submission@omb.eop.gov* or via fax to

(202)395-6974. Commenters should include the following subject line in their response “Comment: [insert OMB number], [insert abbreviated collection name, e.g., “Upward Bound Evaluation”]. Persons submitting comments electronically should not submit paper copies. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget

(1)Type of review requested, e.g. new, revision, extension, existing or reinstatement;

(2)Title;

(3)Summary of the collection;

(4)Description of the need for, and proposed use of, the information;

(5)Respondents and frequency of collection; and

(PAIR)Program Performance Report. *Frequency:* Annually. *Affected Public:* Not-for-profit institutions; State, Local, or Tribal Gov't, SEAs or LEAs. *Reporting and Recordkeeping Hour Burden:* Responses: 57. Burden Hours: 912. *Abstract:* Form RSA-509 will be used to analyze and evaluate the Protection & Advocacy of Individual Rights

(PAIR)Program administered by eligible systems in states. These systems provide services to eligible individuals with disabilities to protect their legal and human rights. Requests for copies of the information collection submission for OMB review may be accessed from *http://edicsweb.ed.gov,* by selecting the “Browse Pending Collections” link and by clicking on link number 3508. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., Potomac Center, 9th Floor, Washington, DC 20202-4700. Requests may also be electronically mailed to *ICDocketMgr@ed.gov* or faxed to 202-245-6623. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to *ICDocketMgr@ed.gov* 202-245-6536. Individuals who use a telecommunications device for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339. [FR Doc. E7-24271 Filed 12-14-07; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF EDUCATION Notice of Proposed Information Collection Requests AGENCY: Department of Education. ACTION: Notice of Proposed Information Collection Requests. SUMMARY: The Secretary of Education requests comments on a modified 2008-2009 Application for Federal Student Aid (FAFSA). The College Cost Reduction and Access Act of 2007 establishes, effective with the 2008-2009 award year, the Teacher Education Assistance for College and Higher Education (TEACH) Grant program, which provides up to $4,000 a year in grant assistance to students who plan on being a teacher and meet certain specified requirements. Through an updated FAFSA, Federal Student Aid will assure that students are aware of the TEACH Grant program, the program's eligibility criteria, and that students will indicate their plans to pursue a teaching career. The Department proposes to accomplish this by asking the following question on the FAFSA on the Web: “Are you planning on completing coursework, now or in the future, necessary for you to become an elementary or secondary school teacher? A ‘YES' response to this question will allow your school to provide you with additional information on a new federal program for students who meet certain conditions and plan on becoming teachers.” The FAFSA is completed by students and their families and the information submitted on the form is used to determine the students' eligibility and financial need for financial aid under the student financial assistance programs authorized under Title IV of the Higher Education Act of 1965, as amended (Title IV, HEA Programs). DATES: An emergency review has been requested in accordance with the Act (44 U.S.C. Chapter 3507 (j)), since public harm is reasonably likely to result if normal clearance procedures are followed. Approval by the Office of Management and Budget

(OMB)has been requested by December 28, 2007. ADDRESSES: Written comments regarding the emergency review should be addressed to the Office of Information and Regulatory Affairs, Attention: Bridget Dooling, Desk Officer, Department of Education, Office of Management and Budget; 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503, or faxed to

(202)395-6974. Dated: December 13, 2007. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. Federal Student Aid *Type of Review:* Revision. *Title:* Free Application for Federal Student Aid (FAFSA). *Frequency:* Annually. *Affected Public:* Individuals and families. *Annual Reporting and Recordkeeping Hour Burden:* *Responses:* 16,787,640. *Burden Hours:* 8,054,467. *Abstract:* The College Cost Reduction and Access Act of 2007 establishes, effective with the 2008-2009 award year, the Teacher Education Assistance for College and Higher Education (TEACH) Grant Program, which provides up to $4,000 a year in grant assistance to students who plan on being a teacher and meet certain specified requirements. Because the 2008-2009 FAFSA Paperwork Reduction Act

(PRA)burden hour estimate (approved December 2006) does not include the burden associated with reading and responding to a new TEACH grant question (the TEACH grant did not exist at that time) we are submitting this request for an emergency clearance of an updated 2008-2009 FAFSA. Through the updated FAFSA, we are striving to make students aware of the TEACH Grant program and the eligibility criteria, in addition to determining their plans to pursue a teaching career. We propose to accomplish this by asking the following question on FAFSA on the Web: “Are you planning on completing coursework, now or in the future, necessary for you to become an elementary or secondary school teacher? A ‘'YES' response to this question will allow your school to provide you with additional information on a new federal program for students who meet certain conditions and plan on becoming teachers.” Requests for copies of the proposed information collection request may be accessed from *http://edicsweb.ed.gov,* by selecting the “Browse Pending Collections” link and clicking on “Download attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., Potomac Center, 9th Floor, Washington, DC 20202-4700. Requests may also be electronically mailed to *ICDocketMgr@ed.gov* or faxed to

(202)245-6623. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be directed to the e-mail address *ICDocketMgr@ed.gov.* Individuals who use a telecommunications device for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern time, Monday through Friday. [FR Doc. E7-24452 Filed 12-14-07; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF ENERGY Office of Energy Efficiency and Renewable Energy Energy Conservation Program for Consumer Products: Decision and Order Granting a Waiver to Fujitsu General From the Department of Energy Residential Central Air Conditioner and Heat Pump Test Procedure [Case No. CAC-010] AGENCY: Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Decision and Order. SUMMARY: This notice publishes the Department of Energy's Decision and Order in Case No. CAC-010, which grants a Waiver to Fujitsu General Limited (Fujitsu) from the existing Department of Energy

(DOE)residential central air conditioner and heat pump test procedure for specified Airstage Variable Refrigerant Flow

(VRF)multi-split products. As a condition of this waiver, Fujitsu must test and rate its Airstage multi-split products according to the alternate test procedure set forth in this notice. DATES: This Decision and Order is effective December 17, 2007. FOR FURTHER INFORMATION CONTACT: Dr. Michael G. Raymond, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone:

(202)586-9611. *E-mail: Michael.Raymond@ee.doe.gov.* Francine Pinto or Eric Stas, U.S. Department of Energy, Office of the General Counsel, Mail Stop GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-0103. *Telephone:*

(202)586-9507. *E-mail: Francine.Pinto@hq.doe.gov* or *Eric.Stas@hq.doe.gov.* SUPPLEMENTARY INFORMATION: In accordance with 10 CFR 430.27(l), notice is hereby given of the issuance of the Decision and Order set forth below. In this Decision and Order, DOE grants Fujitsu a Waiver from the applicable DOE residential central air conditioner and heat pump test procedure under 10 CFR part 430, subpart B, Appendix M, for its Airstage VRF multi-split products, subject to a condition requiring Fujitsu to test and rate its Airstage products pursuant to the alternate test procedure provided in this notice. Today's decision requires that Fujitsu may not make any representations concerning the energy efficiency of these products unless such product has been tested in accordance with the DOE test procedure, consistent with the provisions and restrictions in the alternate test procedure set forth in the Decision and Order below, and such representation fairly discloses the results of such testing. 1 (42 U.S.C. 6293(c)) 1 Consistent with the statute, distributors, retailers, and private labelers are held to the same standard when making representations regarding the energy efficiency of these products. (42 U.S.C. 6293(c)) Issued in Washington, DC, on November 4, 2007. Alexander A. Karsner, Assistant Secretary, Energy Efficiency and Renewable Energy. Decision and Order *In the Matter of:* Fujitsu General Limited (Fujitsu) (Case No. CAC-010). Background Title III of the Energy Policy and Conservation Act

(EPCA)sets forth a variety of provisions concerning energy efficiency, including Part B of Title III which establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles.” (42 U.S.C. 6291-6309) Similar to the program in Part B, Part C of Title III provides for an energy efficiency program titled, “Certain Industrial Equipment,” which includes commercial air conditioning equipment, package boilers, water heaters, and other types of commercial equipment. (42 U.S.C. 6311-6317) Today's notice involves residential products under Part B, as well as commercial equipment under Part C. Under both parts, the statute specifically includes definitions, test procedures, labeling provisions, energy conservation standards, and the authority to require information and reports from manufacturers. With respect to test procedures, both parts generally authorize the Secretary of Energy (the Secretary) to prescribe test procedures that are reasonably designed to produce results which reflect energy efficiency, energy use, and estimated operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6293(b)(3), 6314(a)(2)) Relevant to the current Petition for Waiver, the test procedure for residential central air conditioning and heat pump products is set forth in 10 CFR part 430, subpart B, Appendix M. For commercial package air conditioning and heating equipment, EPCA provides that “the test procedures shall be those generally accepted industry testing procedures or rating procedures developed or recognized by the Air-Conditioning and Refrigeration Institute [ARI] or by the American Society of Heating, Refrigerating and Air Conditioning Engineers [ASHRAE], as referenced in ASHRAE/IES Standard 90.1 and in effect on June 30, 1992.” (42 U.S.C. 6314(a)(4)(A)) Under 42 U.S.C. 6314(a)(4)(B), the statute further directs the Secretary to amend the test procedure for a covered commercial product if the industry test procedure is amended, unless the Secretary determines that such a modified test procedure does not meet the statutory criteria set forth in 42 U.S.C. 6314(a)(2) and (3). On December 8, 2006, DOE published a final rule adopting test procedures for commercial package air conditioning and heating equipment, effective January 8, 2007. 71 FR 71340. The test procedures in that final rule apply to three-phase equipment. However, there is no prescribed test procedure for single-phase, small commercial package air conditioning and heating equipment. In addition, DOE's regulations contain provisions allowing a person to seek a waiver from the test procedure requirements for covered consumer products, when the petitioner's basic model contains one or more design characteristics that prevent testing according to the prescribed test procedures, or when the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. 10 CFR 430.27(a)(1). Petitioners must include in their petition any alternate test procedures known to evaluate the basic model in a manner representative of its energy consumption. 10 CFR 430.27(b)(1)(iii). The Assistant Secretary for Energy Efficiency and Renewable Energy (the Assistant Secretary) may grant a waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 430.27(l). In general, a waiver terminates on the effective date of a final rule which prescribes amended test procedures appropriate to the model series manufactured by the petitioner, thereby eliminating any need for the continuation of the waiver. 10 CFR 430.27(m). The waiver process also allows any interested person who has submitted a Petition for Waiver to file an Application for Interim Waiver of the applicable test procedure requirements. 10 CFR 430.27(a)(2). The Assistant Secretary will grant an Interim Waiver request if it is determined that the applicant will experience economic hardship if the Interim Waiver is denied, if it appears likely that the Petition for Waiver will be granted, and/or the Assistant Secretary determines that it would be desirable for public policy reasons to grant immediate relief pending a determination on the Petition for Waiver. 10 CFR 430.27(g). An Interim Waiver remains in effect for a period of 180 days or until DOE issues its determination on the Petition for Waiver, whichever occurs first, and may be extended by DOE for 180 days, if necessary. 10 CFR 430.27(h). On June 14, 2004, Fujitsu filed a Petition for Waiver from the test procedures applicable to its Airstage line of residential and commercial VRF multi-split air conditioning and heating equipment. 2 Fujitsu's petition requested a waiver from both the residential and commercial test procedures. The applicable residential test procedures are contained in 10 CFR part 430, subpart B, Appendix M, and, as explained above, there is no applicable commercial test procedure for such products under 10 CFR part 430 or 431. Fujitsu seeks a waiver from the test procedures for this product class because the design characteristics of its Airstage VRF multi-split equipment prevent testing according to the currently prescribed residential test procedures. 2 The Fujitsu Airstage VRF multi-split product line at issue here involves single-phase equipment for both residential and commercial use. Because there is no DOE test procedure for single-phase, small commercial package air-conditioning and heating equipment, no waiver is required for Fujitsu's single-phase commercial Airstage equipment. Nonetheless, Fujitsu's Airstage VRF multi-split products are properly classified as “consumer products,” because, to a significant extent, they are for personal use or consumption by individuals (given their frequent residential applications). (42 U.S.C. 6291(1)(B)) Thus, the Fujitsu Airstage VRF multi-split products require a waiver from DOE's test procedure for residential central air conditioners and heat pumps, under 10 CFR part 430, subpart B, Appendix M. On February 4, 2005, DOE published Fujitsu's Petition for Waiver in the **Federal Register** . 70 FR 5980. On August 8, 2005, Fujitsu separately filed an Application for Interim Waiver for the same products for which it petitioned for a waiver on June 14, 2004. DOE granted the Application for Interim Waiver on January 5, 2006. In a similar and relevant case, DOE published a Petition for Waiver from Mitsubishi Electric and Electronics USA, Inc.

(MEUS)for products of the same type as Fujitsu's Airstage VRF multi-split products. 71 FR 14858 (March 24, 2006). In the March 24, 2006 **Federal Register** notice, DOE also published and requested comment on an alternate test procedure for the MEUS products at issue. DOE stated that if it specified an alternate test procedure for MEUS in the subsequent Decision and Order, DOE would consider applying the same procedure to similar waivers for residential and commercial central air conditioners and heat pumps, including such products for which waivers had previously been granted. Most of the comments favored DOE's proposed alternate test procedure. Also, there was general agreement that an alternate test procedure is necessary while a final test procedure for these types of products is being developed. The MEUS Decision and Order, including the alternate test procedure, was published in the **Federal Register** on April 9, 2007. 72 FR 17528. DOE received comments on the Fujitsu petition from Carrier Corporation (Carrier), Trane Division of American Standard Inc. (Trane), Lennox International Inc. (Lennox), and MEUS. These comments are discussed in further detail below. Assertions and Determinations Fujitsu's Petition for Waiver On June 14, 2004, Fujitsu submitted a Petition for Waiver from the test procedures applicable to residential and commercial package air-conditioning and heating equipment for its Airstage VRF multi-split products. Fujitsu's petition asserts that the energy use of its Airstage systems cannot be accurately measured using the current test procedure for the following reasons: 1. The test procedure provides for testing of a pair of indoor and outdoor assemblies making up a typical split system, but it provides no direction about how Airstage units, with more than ten thousand combinations of indoor units, could be evaluated with just one outdoor unit test. 2. The test procedure calls for testing “matched assemblies,” but Airstage systems are designed to be used in zoned systems where the capacity of the indoor units does not match the capacity of the outdoor unit. In summary, the bases for Fujitsu's Petition for Waiver involve:

(1)The problem of being physically unable to test most of the complete systems in a laboratory;

(2)the regulatory requirement to test the highest-sales-volume combination; and

(3)the lack of a method for predicting the performance of untested combinations. These were the same bases underlying the MEUS waiver discussed above. Therefore, the Fujitsu petition requested that DOE grant a waiver from existing test procedures until such time as a representative test procedure is developed and adopted for this class of products. Fujitsu did not include an alternate test procedure in its Petition for Waiver. However, DOE understands that Fujitsu is actively working with ARI to develop test procedures that accurately reflect the operation and energy consumption of these particular product designs. Of the four comments on the Fujitsu Petition for Waiver, only MEUS supported the petition. Carrier claimed Fujitsu's Airstage VRF systems could be tested using the calorimeter air enthalpy test method set forth in ASHRAE Standard 37, “Methods of Testing for Rating Unitary Air-Conditioning and Heat Pump Equipment.” Although DOE believes that use of this test, as Carrier recommends, is theoretically possible and would likely provide more accurate results in the cooling mode, it is not a practical solution because existing calorimeter test rooms are too small to test Fujitsu's VRF Airstage systems with more than three or four indoor units. Lennox and Trane asserted that without a testing and rating requirement, Fujitsu could make energy efficiency claims without the burden of providing standardized ratings. DOE believes that its alternate test procedure (discussed below) effectively addresses these objections. As previously noted, DOE recently addressed a situation regarding multi-split products that is relevant to the Fujitsu products at issue here. Specifically, on March 24, 2006, DOE published in the **Federal Register** a Petition for Waiver from MEUS concerning its R410A CITY MULTI VRFZ products, which are very similar to Fujitsu's VRF Airstage multi-split products. 71 FR 14858. In that publication, DOE stated: To provide a test procedure from which manufacturers can make valid representations, the Department is considering setting an alternate test procedure for MEUS in the subsequent Decision and Order. Furthermore, if DOE specifies an alternate test procedure for MEUS, DOE is considering applying the alternate test procedure to similar waivers for residential and commercial central air conditioners and heat pumps. Such cases include Samsung's petition for its DVM products (70 FR 9629, February 28, 2005), Fujitsu's petition for its Airstage variable refrigerant flow

(VRF)products (70 FR 5980, February 4, 2005), and MEUS's petition for its R22 CITY MULTI VRFZ products. (69 FR 52660 August 27, 2004). 71 FR 14858, 14861 (March 24, 2006). Since that time, DOE has developed such an alternate test procedure. Therefore, to enable Fujitsu to make energy efficiency representations for its specified Airstage VRF multi-split products, DOE has decided to require use of the alternate test procedure described below, as a condition of Fujitsu's waiver. This alternate test procedure is substantially the same as the one that DOE applied to the MEUS waiver. DOE's Alternate Test Procedure The alternate test procedure has two basic components. First, it permits Fujitsu to designate a “tested combination” for each model of outdoor unit. The indoor units designated as part of the tested combination must meet specific requirements. For example, the tested combination must have from two to five indoor units so that it can be tested in available test facilities. The tested combination must be tested according to the applicable DOE test procedure, as modified by the provisions of the alternate test procedure as set forth below. Second, having a DOE test procedure that can be applied to its products allows Fujitsu to represent the energy efficiency of that product, because any such representation must fairly disclose the results of such testing. The DOE test procedure, as modified by the alternate test procedure set forth in this Decision and Order, provides for testing of a non-tested combination in two ways:

(1)At an energy efficiency level determined under a DOE-approved alternative rating method; or

(2)if the first method is not available, then at the efficiency level of the tested combination utilizing the same outdoor unit. Until an alternative rating method is developed, all combinations with a particular outdoor unit may use the rating of the combination tested with that outdoor unit. DOE believes that adopting this alternative test procedure as described above (thereby allowing Fujitsu to make energy efficiency representations for non-tested combinations) is reasonable because the outdoor unit is the principal efficiency driver. The current DOE test procedure 3 tends to rate these products conservatively, because they are tested under conditions where they operate less efficiently than found in typical use. The multi-zoning feature of these products, which enables them to cool only those portions of the building that require cooling, uses less energy than if the unit is operated to cool the entire home or a comparatively larger area of a commercial building in response to a single thermostat. Therefore, the alternate test procedure will provide a conservative basis for assessing the energy efficiency for such products. 3 10 CFR part 430, subpart B, Appendix M. The alternate test procedure applies to both residential and commercial multi-split products. However, some provisions are specific to residential or commercial products. For example, section

(A)of the alternate test procedure has different provisions for residential and commercial products. In contrast, section (B), which defines the combinations of indoor and outdoor units to test, and section (C), which sets forth the requirements for making representations, are the same for both residential and commercial products. Section

(A)of the alternate test procedure distinguishes between residential and commercial products for two reasons. First, 10 CFR 430.24, used for residential products, already has requirements for selecting split-system combinations based on the highest sales volume. However, part 431 of 10 CFR, which applies to commercial products, has no comparable requirements. Therefore, section

(A)of the alternate test procedure modifies the existing residential and commercial requirements so that both residential and commercial products can use the same definition of a “tested combination,” which is set forth in section (B). Second, section

(A)requires several test procedure revisions to determine the seasonal energy efficiency ratio and heating seasonal performance factor for the tested combination of residential products. No test procedure revisions are introduced for commercial products because EPCA directs DOE to adopt generally accepted industry test standards (unless amendments to those industry test procedures are determined by clear and convincing evidence not to meet the requirements of the statute). (42 U.S.C. 6314(a)(4)) The changes for residential products relate to:

(1)The requirement that all indoor units operate during all tests;

(2)the restriction on using only one indoor test room;

(3)the selection of the modulation levels (maximum, minimum, and a specified intermediate speed) used when testing; and

(4)the algorithm for estimating performance over the intermediate speed operating range. DOE proposed these changes in its July 20, 2006 notice of proposed rulemaking. 71 FR 41320. For today's Decision and Order, the changes made by the final rule published in the **Federal Register** on October 22, 2007 (72 FR 59906) to test procedure sections 2.1, 2.2.3, 2.4.1, 3.2.4 (including Table 6), 3.6.4 (including Table 12), 4.1.4.2, and 4.2.4.2 constitute mandatory elements of the alternate test procedure. These changes allow indoor units to cycle off, allow the manufacturer to specify the compressor speed used during certain tests, and introduce a new algorithm for estimating power consumption. With regard to the laboratory testing of both residential and commercial products, some of the difficulties associated with the existing test procedure are avoided by the alternate test procedure's requirements for choosing the indoor units to be used in the manufacturer-specified tested combination. For example, in addition to limiting the number of indoor units, another requirement is that all of the indoor units must be subject to meeting the same minimum external static pressure. This requirement allows the test lab to manifold the outlets from each indoor unit into a common plenum that supplies air to a single airflow measuring apparatus. This requirement eliminates situations in which some of the indoor units are ducted and some are non-ducted. Without this requirement, the laboratory must evaluate the capacity of a subgroup of indoor coils separately, and then sum the separate capacities to obtain the overall system capacity. This would require that the test laboratory be equipped with multiple airflow measuring apparatuses (which is unlikely), or that the test laboratory connect its one airflow measuring apparatus to one or more common indoor units until the contribution of each indoor unit has been measured. Furthermore, DOE stated in the notice publishing the MEUS Petition for Waiver that if the Department decides to specify an alternate test procedure for MEUS, it would consider applying the procedure to waivers for similar residential and commercial central air conditioners and heat pumps produced by other manufacturers. 71 FR 14858, 14861 (March 24, 2006). Most of the comments received by DOE in response to the March 2006 notice favored the proposed alternate test procedure. Commenters generally agreed that an alternate test procedure is appropriate for an interim period while a final test procedure for these products is being developed. In light of the discussion above, DOE believes that the problems described above would prevent testing of Fujitsu's Airstage VRF multi-split products according to the test procedures currently prescribed in 10 CFR part 430, subpart B, Appendix M. After reviewing and considering all of the comments submitted regarding the proposed alternate test procedure, DOE has decided to adopt the proposed alternate test procedure, with the clarifications discussed above. DOE will also consider applying the same alternate test procedure to waivers for similar central air conditioners and heat pumps. Consultations With Other Agencies DOE consulted with the Federal Trade Commission

(FTC)concerning the Fujitsu Petition for Waiver. The FTC did not have any objections to the issuance of a waiver to Fujitsu. Conclusion After careful consideration of all the materials submitted by Fujitsu, the comments received, and consultation with the FTC, it is ordered that:

(1)The “Petition for Waiver” filed by Fujitsu General Limited (Fujitsu) (Case No. CAC-010) is hereby granted as set forth in the paragraphs below.

(2)Fujitsu shall not be required to test or rate its Airstage variable refrigerant flow multi-split air conditioner and heat pump models listed below on the basis of the current test procedures contained in 10 CFR part 430, subpart B, Appendix M, but shall be required to test and rate such products according to the alternate test procedure as set forth in paragraph (3). *Outdoor unit, Heat pump type:* AOU54U**** 51.9 kBtu/hr cooling/54.4 kBtu/hr heating, single phase, 208-230Vac, 60Hz. *Outdoor unit, Cooling-only type:* AOU54F**** 51.9 kBtu/hr cooling, single phase, 208-230Vac, 60Hz. *Indoor units:* AR Series, Compact duct type (ceiling/floor standing), ARU 7/9/12/14/18/20/22**** AR Series, Duct type, ARU25/30/36/45**** AS Series, Wall mounted type, ASU7/9/12/14/18/24/30**** AU Series, Compact ceiling cassette type, AUU7/9/12/14/18**** AU Series, Ceiling cassette type, AUU20/25/30/36/45/54**** The “****” denotes engineering differences in the basic models.

(3)*Alternate test procedure.*

(A)Fujitsu shall be required to test the products listed in paragraph

(2)above according to the test procedures for central air conditioners and heat pumps prescribed by DOE at 10 CFR part 430, except that:

(i)Fujitsu shall not be required to comply with:

(1)The first sentence in 10 CFR 430.24(m)(2), which refers to “that combination manufactured by the condensing unit manufacturer likely to have the largest volume of retail sales;” and

(2)the third sentence in 10 CFR 430(m)(2), including the provisions of 10 CFR 430(m)(2)(i) and (ii). Instead of testing the combinations likely to have the highest volume of retail sales, Fujitsu may test a “tested combination” selected in accordance with the provisions of subparagraph

(B)of this paragraph. Additionally, instead of following the provisions of 10 CFR 430(m)(2)(i) and

(ii)for every other system combination using the same outdoor unit as the tested combination, Fujitsu shall make representations concerning the Airstage variable refrigerant flow multi-split products covered in this waiver according to the provisions of subparagraph

(C)below.

(ii)Fujitsu shall be required to comply with 10 CFR part 430, subpart B, Appendix M as amended by the final rule published in the **Federal Register** on October 22, 2007. 72 FR 59906. The test procedure changes applicable to multi-split products are in sections: 2.1, 2.2.3, 2.4.1, 3.2.4 (including Table 6), 3.6.4 (including Table 12), 4.1.4.2, and 4.2.4.2.

(B)*Tested combination.* The term “tested combination” means a sample basic model comprised of units that are production units, or are representative of production units, of the basic model being tested. For the purposes of this waiver, the tested combination shall have the following features:

(i)The basic model of a variable refrigerant flow system used as a tested combination shall consist of an outdoor unit that is matched with between two and five indoor units.

(ii)The indoor units shall:

(a)Represent the highest sales volume type models;

(b)Together, have a capacity between 95 percent and 105 percent of the capacity of the outdoor unit;

(c)Not, individually, have a capacity greater than 50 percent of the capacity of the outdoor unit;

(d)Have a fan speed that is consistent with the manufacturer's specifications; and

(e)All have the same external static pressure.

(C)*Representations.* In making representations about the energy efficiency of its Airstage variable refrigerant flow multi-split air conditioner and heat pump products, for compliance, marketing, or other purposes, Fujitsu must fairly disclose the results of testing under the DOE test procedure, doing so in a manner consistent with the provisions outlined below:

(i)For Airstage multi-split combinations tested in accordance with this alternate test procedure, Fujitsu must disclose these test results.

(ii)For Airstage multi-split combinations that are not tested, Fujitsu must make a disclosure based on the testing results for the tested combination and which are consistent with either of the two following methods, except that only method

(a)may be used, if available:

(a)Representation of non-tested combinations according to an alternative rating method approved by DOE; or

(b)Representation of non-tested combinations at the same energy efficiency level as the tested combination with the same outdoor unit.

(4)This waiver shall remain in effect from the date of issuance of this Order until April 21, 2008, which is the effective date of a DOE final rule prescribing an amended test procedure appropriate to the model series manufactured by Fujitsu listed above. This final rule was published on October 22, 2007 (72 FR 59906).

(DOE)residential and commercial package air conditioner and heat pump test procedures for specified Digital Variable Multi

(DVM)variable refrigerant flow multi-split products. As a condition of this waiver, Samsung must test and rate its DVM multi-split products according to the alternate test procedure set forth in this notice. DATES: This Decision and Order is effective December 17, 2007. FOR FURTHER INFORMATION CONTACT: Dr. Michael G. Raymond, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone:

(202)586-9611. E-mail: *Michael.Raymond@ee.doe.gov.* Francine Pinto or Eric Stas, U.S. Department of Energy, Office of General Counsel, Mail Stop GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-0103. Telephone:

(202)586-9507. E-mail: *Francine.Pinto@hq.doe.gov* or *Eric.Stas@hq.doe.gov.* SUPPLEMENTARY INFORMATION: In accordance with 10 CFR 430.27(l) and 10 CFR 431.401(f)(4), notice is hereby given of the issuance of the Decision and Order set forth below. In this Decision and Order, DOE grants Samsung a waiver from the applicable DOE residential and commercial package air conditioner and heat pump test procedures 1 for its DVM multi-split products, subject to a condition requiring Samsung to test and rate its DVM multi-split products pursuant to the alternate test procedure provided in this notice. Today's decision requires that Samsung may not make any representations concerning the energy efficiency of these products unless such product has been tested in accordance with the DOE test procedure, consistent with the provisions and restrictions in the alternate test procedure set forth in the Decision and Order below, and such representation fairly discloses the results of such testing. 2 (42 U.S.C. 6293(c)) 1 For residential products, the applicable test procedure is set forth in 10 CFR part 430, subpart B, Appendix M. For commercial products, the applicable test procedure is the Air-Conditioning and Refrigeration Institute

(ARI)Standard 340/360-2004, “Performance Rating of Commercial and Industrial Unitary Air-Conditioning and Heat Pump Equipment” (incorporated by reference at 10 CFR 431.95(b)(2)). 2 Consistent with the statute, distributors, retailers, and private labelers are held to the same standard when making representations regarding the energy efficiency of these products. (42 U.S.C. 6293(c)) Issued in Washington, DC, on November 4, 2007. Alexander A. Karsner, Assistant Secretary, Energy Efficiency and Renewable Energy. Decision and Order *In the Matter of:* Samsung Air Conditioning (Samsung) (Case No. CAC-009). Background Title III of the Energy Policy and Conservation Act

(EPCA)sets forth a variety of provisions concerning energy efficiency, including Part B of Title III which establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles.” (42 U.S.C. 6291-6309) Similar to the Program in Part B, Part C of Title III provides for an energy efficiency program titled, “Certain Industrial Equipment,” which includes commercial air conditioning equipment, package boilers, water heaters, and other types of commercial equipment. (42 U.S.C. 6311-6317) Today's notice involves residential products under Part B, as well as commercial equipment under Part C. Under both parts, the statute specifically includes definitions, test procedures, labeling provisions, energy conservation standards, and the authority to require information and reports from manufacturers. With respect to test procedures, both parts generally authorize the Secretary of Energy (the Secretary) to prescribe test procedures that are reasonably designed to produce results which reflect energy efficiency, energy use, and estimated annual operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6293(b)(3), 6314(a)(2)) Relevant to the current Petition for Waiver, the test procedure for residential central air conditioning and heat pump products is set forth in 10 CFR part 430, subpart B, Appendix M. For commercial package air conditioning and heating equipment, EPCA provides that “the test procedures shall be those generally accepted industry testing procedures or rating procedures developed or recognized by the Air-Conditioning and Refrigeration Institute [ARI] or by the American Society of Heating, Refrigerating and Air-Conditioning Engineers [ASHRAE], as referenced in ASHRAE/IES Standard 90.1 and in effect on June 30, 1992.” (42 U.S.C. 6314(a)(4)(A)) Under 42 U.S.C. 6314(a)(4)(B), the statute further directs the Secretary to amend the test procedure for a covered commercial product if the industry test procedure is amended, unless the Secretary determines that such a modified test procedure does not meet the statutory criteria set forth in 42 U.S.C. 6314(a)(2) and (3). On December 8, 2006, DOE published a final rule adopting test procedures for commercial package air conditioning and heating equipment, effective January 8, 2007. 71 FR 71340. DOE adopted ARI Standard 210/240-2003 for commercial package air conditioning and heating equipment with capacities <65,000 British thermal units per hour (Btu/h) and ARI Standard 340/360-2004 for commercial package air conditioning and heating equipment with capacities ≥65,000 Btu/h and <240,000 Btu/h. *Id.* at 71371. Pursuant to this rulemaking, DOE's regulations at 10 CFR 431.95(b)(2) incorporate by reference the relevant ARI standards, and 10 CFR 431.96 directs manufacturers of commercial package air-conditioning and heating equipment to use the appropriate procedure when measuring energy efficiency of those products. (The cooling capacities of Samsung's DVM multi-split products fall in the ranges covered by ARI Standard 340/360-2004 and the DOE test procedure for residential products referred to above.) In addition, DOE's regulations contain provisions allowing a person to seek a waiver from the test procedure requirements for covered consumer products, when the petitioner's basic model contains one or more design characteristics that prevent testing according to the prescribed test procedures, or when the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. 10 CFR 430.27(a)(1). The waiver provisions for commercial equipment are substantively identical to those for covered consumer products and are found at 10 CFR 431.401. Petitioners must include in their petition any alternate test procedures known to evaluate the basic model in a manner representative of its energy consumption. 10 CFR 430.27(b)(1)(iii); 10 CFR 431.401(b)(1)(iii). The Assistant Secretary for Energy Efficiency and Renewable Energy (the Assistant Secretary) may grant a waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 430.27(l); 10 CFR 431.401(f)(4). In general, a waiver terminates on the effective date of a final rule which prescribes amended test procedures appropriate to the model series manufactured by the petitioner, thereby eliminating any need for the continuation of the waiver. 10 CFR 430.27(m); 10 CFR 430.401(g). The waiver process also allows any interested person who has submitted a Petition for Waiver to file an Application for Interim Waiver of the applicable test procedure requirements. 10 CFR 430.27(a)(2); 10 CFR 431.401(a)(2). An Interim Waiver remains in effect for a period of 180 days or until DOE issues its determination on the Petition for Waiver, whichever occurs first, and may be extended by DOE for 180 days, if necessary. 10 CFR 430.27(h); 10 CFR 431.401(e)(4). On October 7, 2003, Samsung filed a Petition for Waiver and an Application for Interim Waiver from the test procedures applicable to its DVM line of residential and commercial multi-split air conditioning and heating equipment. Samsung's petition requested a waiver from both the residential and commercial test procedures. The applicable residential test procedures are contained in 10 CFR part 430, subpart B, Appendix M, and the applicable commercial test procedures are contained in ARI Standard 340/360-2004 3 (incorporated by reference at 10 CFR 431.95(b)(2)). Samsung seeks a waiver from the applicable test procedures because the design characteristics of its DVM systems prevent testing according to the currently prescribed test procedures. 3 In its petition, Samsung also requested a waiver from ARI Standard 210/240-2003 (incorporated by reference at 10 CFR 431.95(b)(1)). However, based on a review of the products listed by Samsung in its petition, DOE has determined that none of these products has the combined features (i.e., three-phase power and rated capacity less than 65,000 Btu/h) as would necessitate a waiver from ARI Standard 210/240-2003. On February 28, 2005, DOE published Samsung's Petition for Waiver and granted the Application for Interim Waiver. 70 FR 9630. In a similar and relevant case, DOE published a Petition for Waiver from Mitsubishi Electric and Electronics USA, Inc.

(MEUS)for products very similar to Samsung's DVM products. 71 FR 14858 (March 24, 2006). In the March 24, 2006 **Federal Register** notice, DOE also published and requested comment on an alternate test procedure for the MEUS products at issue. DOE stated that if it specified an alternate test procedure for MEUS in the subsequent Decision and Order, DOE would consider applying the same procedure to similar waivers for residential and commercial central air conditioners and heat pumps, including such products for which waivers had previously been granted. Most of the comments responded favorably to DOE's proposed alternate test procedure. Also, there was general agreement that an alternate test procedure is necessary while a final test procedure for these types of products is being developed. The MEUS Decision and Order, including the alternate test procedure, was published in the **Federal Register** on April 9, 2007. 72 FR 17528. DOE received comments on the Samsung Petition from Carrier Corporation (Carrier), Daikin U.S. Corporation, and Fujitsu General. These comments are discussed below. Assertions and Determinations Samsung's Petition for Waiver On October 7, 2003, Samsung submitted a Petition for Waiver and an Application for Interim Waiver from the test procedures applicable to residential and commercial package air-conditioning and heating equipment for its new DVM multi-split products. Samsung's petition presented several arguments in support of its claim that the design characteristics of its DVM multi-split systems prevent testing according to the currently prescribed test procedures. Specifically, Samsung claimed that no other product currently available for sale in the U.S. offers the ability of a direct expansion system to vary its capacity every 20 seconds between 10 percent and 100 percent of the building design load, and argued that no existing test procedure can provide a method for rating at those capacity points. Samsung also asserted that existing test procedures do not require calculating integrated part-load values in the heating mode and do not account for either the benefits of the DVM system's zoned cooling or the inherent benefits of eliminating duct loss in a ductless system. Therefore, the Samsung Petition requested that DOE grant a waiver from existing test procedures until such time as a representative test procedure is developed and adopted for this class of products. Samsung did not include an alternate test procedure in its Petition for Waiver. (However, DOE understands that Samsung is actively working with ARI to develop test procedures that accurately reflect the operation and energy consumption of these particular product designs.) Regardless of their accuracy, DOE believes that these assertions are inapposite to the present case for the reasons that follow. First, for commercial systems at or above 65,000 Btu/h and less than 135,000 Btu/h, EPCA mandates use of the full load energy efficiency ratio

(EER)descriptor, and the relevant energy performance is the peak-load efficiency, not the seasonal energy savings. (42 U.S.C. 6313(a)(1)(C)) A waiver can only be granted if a test procedure does not fairly represent the peak-load energy consumption characteristics, which EER measures. For Samsung's residential models, the seasonal energy efficiency ratio

(SEER)captures some of the benefits of the DVM multi-split products' part-load efficiency. Nevertheless, there are deficiencies in the current DOE test methods and calculation algorithms when applied to multi-split systems. DOE has previously acknowledged these limitations in its current test procedure, and accordingly, MEUS was granted a waiver on the following grounds: 1. No existing test procedure provides a method for testing and rating a system that utilizes one outdoor unit and sixteen indoor units. 2. No existing test procedure can provide a method for rating systems where the type and capacity of the indoor unit can be mixed in the same system. The DVM system can mix together six different indoor models with seven different capacities, resulting in over 1,000 combinations. Given the present situation, Samsung can make the same claims regarding its DVM multi-split products. Therefore, the bases for Samsung's Petition for Waiver involve:

(1)The problem of being physically unable to test most of the complete systems in a laboratory;

(2)difficulties associated with the regulatory requirement to test the highest-sales-volume combination; and

(3)the lack of a method for predicting the performance of untested combinations. Of the three comments on the Samsung petition, only Carrier Corporation (Carrier) expressed opposition. Carrier claimed that Samsung's DVM multi-split systems could be tested using the calorimeter air enthalpy test method set forth in ASHRAE Standard 37, “Methods of Testing for Rating Unitary Air-Conditioning and Heat Pump Equipment.” Although DOE believes that use of this test, as Carrier recommends, is theoretically possible and would likely provide more accurate results in the cooling mode, it is not a practical solution because existing calorimeter test rooms are too small to test Samsung's DVM multi-split systems with more than three or four indoor units. DOE believes that its alternate test procedure (discussed below) effectively addresses these objections. As mentioned above, DOE recently addressed a situation regarding multi-split products that is relevant to the Samsung products at issue here. Specifically, on March 24, 2006, DOE published in the **Federal Register** a Petition for Waiver from MEUS relating to its R410A CITY MULTI VRFZ products, which are very similar to Samsung's DVM multi-split products. 71 FR 14858. In that publication, DOE stated: To provide a test procedure from which manufacturers can make valid representations, the Department is considering setting an alternate test procedure for MEUS in the subsequent Decision and Order. Furthermore, if DOE specifies an alternate test procedure for MEUS, DOE is considering applying the alternate test procedure to similar waivers for residential and commercial central air conditioners and heat pumps. Such cases include Samsung's petition for its DVM products (70 FR 9629, February 28, 2005), Fujitsu's petition for its Airstage variable refrigerant flow

(VRF)products (70 FR 5980, February 4, 2005), and MEUS's petition for its R22 CITY MULTI VRFZ products (69 FR 52660 (August 27, 2004). 71 FR 14858, 14861 (March 24, 2006). Since that time, DOE has developed such an alternate test procedure. Thus, in order to enable Samsung to make energy efficiency representations for its specified DVM multi-split products, DOE has decided to require use of the alternate test procedure described below, as a condition of Samsung's waiver. This alternate test procedure is substantially the same as the one that DOE applied to the MEUS waiver. DOE's Alternate Test Procedure The alternate test procedure has two basic components. First, it permits Samsung to designate a “tested combination” for each model of outdoor unit. The indoor units designated as part of the tested combination must meet specific requirements. For example, the tested combination must have from two to five indoor units so that it can be tested in available test facilities. The tested combination must be tested according to the applicable DOE test procedure, as modified by the provisions of the alternate test procedure. Second, having a DOE test procedure that can be applied to its product allows Samsung to represent the energy efficiency of that product, because any such representation must fairly disclose the results of such testing. The DOE test procedure, as modified by the alternate test procedure provided in this Decision and Order, provides for testing of a non-tested combination in two ways:

(1)at an energy efficiency level determined under a DOE-approved alternative rating method; or

(2)if the first method is not available, then at the efficiency level of the tested combination utilizing the same outdoor unit. Until an alternative rating method is developed, all combinations with a particular outdoor unit may use the rating of the combination tested with that outdoor unit. DOE believes that adopting this alternate test procedure as described above (thereby allowing Samsung to make energy efficiency representations for non-tested combinations) is reasonable because the outdoor unit is the principal efficiency driver. The current test procedures tend to rate these products conservatively. The multi-zoning feature of these products, which enables them to cool only those portions of the building that require cooling, would be expected to use less energy than if the unit is operated to cool the entire home or a comparatively larger area of a commercial building in response to a single thermostat. This feature would not be captured by the test procedure, which requires full-load testing. Under full load, the entire building would require cooling. Additionally, the current test procedure for commercial equipment requires full-load testing, which disadvantages these products because they are optimized for best efficiency when operating with less than full loads. In fact, these products normally operate at part-load conditions. Therefore, the alternate test procedure will provide a conservative basis for assessing the energy efficiency for such products. The alternate test procedure applies to both residential and commercial multi-split products. However, some provisions are specific to residential or commercial products. For example, section

(A)distinguishes between residential and commercial products for two reasons. First, 10 CFR 430.24, used for residential products, already has requirements for selecting split-system combinations based on the highest sales volume. However, 10 CFR part 431, which applies to commercial products, has no comparable requirements. Therefore, section

(A)requires several test procedure revisions to determine the SEER and heating seasonal performance factor

(HSPF)for the tested combination of residential products. No test procedure revisions are introduced for commercial products, because EPCA directs DOE to adopt generally accepted industry test standards for these commercial products (unless amendments to those industry test procedures are determined by clear and convincing evidence not to meet the requirements of the statute) (42 U.S.C. 6314(a)(4)). In contrast, for residential products, DOE develops its own test procedures, and the changes to the test procedure for residential products resulting from this notice relate to:

(1)The requirement that all indoor units operate during all tests;

(2)the restriction on using only one indoor test room;

(3)the selection of the modulation levels (maximum, minimum, and a specified intermediate speed) used when testing; and

(4)the algorithm for estimating performance over the intermediate speed operating range. DOE proposed these changes in its July 20, 2006 notice of proposed rulemaking. 71 FR 41320. For today's Decision and Order, the changes made by the final rule published in the **Federal Register** on October 22, 2007 (72 FR 59906) to test procedure sections 2.1, 2.2.3, 2.4.1, 3.2.4 (including Table 6), 3.6.4 (including Table 12), 4.1.4.2, and 4.2.4.2 constitute mandatory elements of the alternate test procedure. These changes allow indoor units to cycle off, allow the manufacturer to specify the compressor speed used during certain tests, and introduce a new algorithm for estimating power consumption. With regard to the laboratory testing of both residential and commercial products, some of the difficulties associated with the existing test procedure are avoided by the alternate test procedure's requirements for choosing the indoor units to be used in the manufacturer-specified tested combination. For example, in addition to limiting the number of indoor units, another requirement is that all of the indoor units must be subject to meeting the same minimum external static pressure. This requirement allows the test lab to manifold the outlets from each indoor unit into a common plenum that supplies air to a single airflow measuring apparatus. This requirement eliminates situations in which some of the indoor units are ducted and some are non-ducted. Without this requirement, the laboratory must evaluate the capacity of a subgroup of indoor coils separately, and then sum the separate capacities to obtain the overall system capacity. This would require that the test laboratory be equipped with multiple airflow measuring apparatuses (which is unlikely), or that the test laboratory connect its one airflow measuring apparatus to one or more common indoor units until the contribution of each indoor unit has been measured. Furthermore, DOE stated in the notice publishing the MEUS Petition for Waiver that if the Department decides to specify an alternate test procedure for MEUS, it would consider applying the procedure to waivers for similar residential and commercial central air conditioners and heat pumps produced by other manufacturers. 71 FR 14858, 14861 (March 24, 2006). Most of the comments received by DOE in response to the March 2006 notice favored the proposed alternate test procedure. Commenters generally agreed that an alternate test procedure is appropriate for an interim period while a final test procedure for these products is being developed. Based on the discussion above, DOE believes that the testing problems described above would prevent testing of Samsung's DVM basic models according to the test procedures currently prescribed in 10 CFR part 430, Subpart B, Appendix M, and ARI Standard 340/360-2004. After reviewing and considering all of the comments submitted regarding the proposed alternate test procedure, DOE has decided to adopt the proposed alternate test procedure, with the clarifications discussed above. DOE will also consider applying the same alternate test procedure to waivers for similar residential and commercial central air conditioners and heat pumps. Consultations With Other Agencies DOE consulted with the Federal Trade Commission

(FTC)concerning the Samsung Petition for Waiver. The FTC did not have any objections to the issuance of a waiver to Samsung. Conclusion After careful consideration of all the material that was submitted by Samsung, the comments received, and consultation with the FTC, it is ordered that:

(1)The Petition for Waiver submitted by Samsung Air Conditioning (Samsung) (Case No. CAC-009) is hereby granted as set forth in the paragraphs below.

(2)Samsung shall not be required to test or rate its Digital Variable Multi

(DVM)products listed below on the basis of the currently applicable test procedures (contained in 10 CFR part 430, Subpart B, Appendix M, and ARI Standard 340/360-2004 (incorporated by reference in 10 CFR 431.95(b)(2)), but shall be required to test and rate such products according to the alternate test procedure as set forth in paragraph (3). *Commercial Systems:* Any product using these outdoor units: RVMH100FAMOU, RVMC100FAMOU, RVMC070FAM0U. For these products, the applicable test procedure is ARI 340/360-2004, as amended by the alternate test procedure as set forth in paragraph (3). *Residential Systems:* Any product using these outdoor units: RVMH050CBM0U, RVMC050CBM0U. For these products, the applicable test procedure is the residential test procedure contained in 10 CFR part 430, subpart B, appendix M, as amended by the alternate test procedure as set forth in paragraph (3). *DVM indoor units:* AVMKH020CAOU, AVMKC020CAOU, AVMKH032CAOU, AVMKC032CA0U, AVMKH040CA0U, AVMKC040CAOU, AVMCH052CAOU, AVMCC052CA0U, AVMCH072CAOU, AVMCC072CAOU, AVMCH105CAOU, AVMCC105CA0U, AVMBH020CAOU, AVMBC020CA0U, AVMBH032CAOU, AVMBC032CA0U, AVMBH040CAOU, AVMBC040CA0U, AVMBH052CAOU, AVMBC052CA0U, AVMBH072CAOU, AVMBC072CA0U, AVMHH105CAOU, AVMHC105CAOU, AVMHH128CAOU, AVMHC105CAOU, AVMDH052CA0U, AVMDC052CA0U, AVMDH072CA0U, AVMDC072CA0U, AVMWH020CAOU, AVMWCH020CAOU, AVMWH032CAOU, AVMWC032CAOU, AVMWH040CAOU, AVMWC040CAOU, AVMWH052CAOU, AVMWC052CAOU, AVMWH072CAOU, AVMWC072CAOU.

(3)*Alternate test procedure.*

(A)Samsung shall be required to test the products listed in paragraph

(2)above according to the test procedures for central air conditioners and heat pumps prescribed by DOE at 10 CFR parts 430 and 431, except that:

(i)For products covered by 10 CFR part 430 (consumer products), Samsung shall not be required to comply with:

(1)The first sentence in 10 CFR 430.24(m)(2), which refers to “that combination manufactured by the condensing unit manufacturer likely to have the largest volume of retail sales;” and

(2)the third sentence in 10 CFR 430.24(m)(2), including the provisions of 10 CFR 430.24(m)(2)(i) and (ii). Instead of testing the combinations likely to have the highest volume of retail sales, Samsung may test a “tested combination” selected in accordance with the provisions of subparagraph

(B)of this paragraph. Additionally, instead of following the provisions of 10 CFR 430.24(m)(2)(i) and

(ii)for every other system combination using the same outdoor unit as the tested combination, Samsung shall make representations concerning the DVM multi-split products covered in this waiver according to the provisions of subparagraph

(C)below.

(ii)For products covered by 10 CFR part 430 (consumer products), Samsung shall be required to comply with 10 CFR 430, subpart B, appendix M as amended by the final rule published in the **Federal Register** on October 22, 2007. 72 FR 59906. The test procedure changes applicable to multi-split products are in sections: 2.1, 2.2.3, 2.4.1, 3.2.4 (including Table 6), 3.6.4 (including Table 12), 4.1.4.2, and 4.2.4.2.

(iii)For products covered by 10 CFR part 431 (commercial products), Samsung shall test a “tested combination” selected in accordance with the provisions of subparagraph

(B)of this paragraph. For every other system combination using the same outdoor unit as the tested combination, Samsung shall make representations concerning the DVM multi-split products covered in this waiver according to the provisions of subparagraph

(C)below.

(i)The basic model of a variable refrigerant flow system used as a tested combination shall consist of an outdoor unit that is matched with between two and five indoor units.

(ii)The indoor units shall:

(a)Represent the highest sales volume type models;

(b)Together, have a capacity between 95 percent and 105 percent of the capacity of the outdoor unit;

(c)Not, individually, have a capacity greater than 50 percent of the capacity of the outdoor unit;

(d)Have a fan speed that is consistent with the manufacturer's specifications; and

(e)All have the same external static pressure.

(C)*Representations.* In making representations about the energy efficiency of its DVM multi-split products, for compliance, marketing, or other purposes, Samsung must fairly disclose the results of testing under the DOE test procedure, doing so in a manner consistent with the provisions outlined below:

(i)For DVM combinations tested in accordance with this alternate test procedure, Samsung must disclose these test results.

(ii)For DVM combinations that are not tested, Samsung must make a disclosure based on the testing results for the tested combination and which are consistent with either of the two following methods, except that only method

(a)may be used, if available:

(a)Representation of non-tested combinations according to an Alternative Rating Method

(ARM)approved by DOE; or

(b)Representation of non-tested combinations at the same energy efficiency level as the tested combination with the same outdoor unit.

(4)This waiver shall remain in effect from the date of issuance of this Order until the effective date of a DOE final rule prescribing amended test procedures appropriate to the model series manufactured by Samsung listed above. This expiration date is April 21, 2008 for the Samsung residential products only, for which such DOE final rule was published on October 22, 2007 (72 FR 59906).

(5)This waiver is conditioned upon the presumed validity of statements, representations, and documentary materials provided by the petitioner. This waiver may be revoked or modified at any time upon a determination that the factual basis underlying the petition is incorrect, or DOE determines that the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics. Issued in Washington, DC, on November 4, 2007. Alexander A. Karsner, *Assistant Secretary, Energy Efficiency and Renewable Energy.* [FR Doc. E7-24439 Filed 12-14-07; 8:45 am] BILLING CODE 6450-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket Nos. ER07-1332-000; ER07-1332-001; ER07-1332-002] Smoky Hills Wind Farm, LLC; Notice of Issuance of Order December 10, 2007. Smoky Hills Wind Farm, LLC (Smoky Hills Wind Farm) filed an application for market-based rate authority, with an accompanying rate schedule. The proposed market-based rate schedule provides for the sale of energy and capacity at market-based rates. Smoky Hills Wind Farm also requested waivers of various Commission regulations. In particular, Smoky Hills Wind Farm requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Smoky Hills Wind Farm. On November 29, 2007, pursuant to delegated authority, the Director, Division of Tariffs and Market Development-West, granted the requests for blanket approval under Part 34 (Director's Order). The Director's Order also stated that the Commission would publish a separate notice in the **Federal Register** establishing a period of time for the filing of protests. Accordingly, any person desiring to be heard concerning the blanket approvals of issuances of securities or assumptions of liability by Smoky Hills Wind Farm, should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure. 18 CFR 385.211, 385.214 (2004). Notice is hereby given that the deadline for filing protests is December 28, 2007. Absent a request to be heard in opposition to such blanket approvals by the deadline above, Smoky Hills Wind Farm is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Smoky Hills Wind Farm, compatible with the public interest, and is reasonably necessary or appropriate for such purposes. The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approvals of Smoky Hills Wind Farm's issuance of securities or assumptions of liability. Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at *http://www.ferc.gov* , using the eLibrary link. Enter the docket number excluding the last three digits in the docket number filed to access the document. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)

(Yuma)filed an application for market-based rate authority, with an accompanying market-based rate tariff. The proposed market-based rate tariff provides for the sale of energy, capacity and ancillary services at market-based rates. Yuma so requested waivers of various Commission regulations. In particular, Yuma requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Yuma. On December 4, 2007, pursuant to delegated authority, the Director, Division of Tariffs and Market Development-West, granted the requests for blanket approval under Part 34 (Director's Order). The Director's Order also stated that the Commission would publish a separate notice in the **Federal Register** establishing a period of time for the filing of protests. Accordingly, any person desiring to be heard concerning the blanket approvals of issuances of securities or assumptions of liability by Yuma, should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure. 18 CFR 385.211, 385.214 (2004). Notice is hereby given that the deadline for filing protests is January 7, 2008. Absent a request to be heard in opposition to such blanket approvals by the deadline above, Yuma is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Yuma, compatible with the public interest, and is reasonably necessary or appropriate for such purposes. The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approvals of Yuma's issuance of securities or assumptions of liability. Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at *http://www.ferc.gov,* using the eLibrary link. Enter the docket number excluding the last three digits in the docket number filed to access the document. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)

(iii)and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Kimberly D. Bose, Secretary. [FR Doc. E7-24306 Filed 12-14-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 13039-000] BPUS Generation Development, LLC; Notice of Application Accepted for Filing and Soliciting Motions To Intervene, Protests, and Comments December 10, 2007. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. *Type of Application:* Preliminary Permit. b. *Project No.:* 13039-000. c. *Date filed:* September 28, 2007. d. *Applicant:* BPUS Generation Development, LLC. e. *Name of Project:* Wappapello Dam Hydroelectric Project. f. *Location:* St. Francis River in Wayne County, Missouri. It would use the U.S. Army Corps of Engineers' Wappapello Dam. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791(a)-825(r). h. *Applicant Contact:* Mr. Jeffrey M. Auser, P.E., BPUS Generation Development, LLC, 225 Greenfield Parkway, Suite 201, Liverpool, NY 13088,

(315)413-2700. i. *FERC Contact:* Robert Bell,

(202)502-4126. j. *Deadline for filing comments, protests, and motions to intervene:* 60 days from the issuance date of this notice. *All documents (original and eight copies) should be filed with:* Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-13039-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. k. *Description of Project:* The proposed project using the U.S. Army Corps of Engineers' Wappapello Dam and operated in a run-of-river mode would consist of:

(1)A new 80-foot long, 80-foot wide, 50-foot high concrete powerhouse and associated switchyard immediately below the dam on the right bank of the existing stilling basin;

(2)two 200-foot-long, 7-foot-diameter steel penstocks;

(3)two turbine/generator units with a combined installed capacity of 9 megawatts;

(4)a new 23,734-foot long above ground transmission line extending from the switchyard near the powerhouse south to an interconnection point with an existing transmission line owned by the Poplar Bluff Light & Water-Sewer Department; and

(5)appurtenant facilities. The proposed Wappapello Dam Project would have an average annual generation of 33 gigawatt-hours. l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or e-mail *FERCONLINESUPPORT@FERC.GOV.* For TTY, call

(202)502-8659. A copy is also available for inspection and reproduction at the address in item h above. m. *Competing Preliminary Permit* —Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30 and 4.36. n. *Competing Development Application* —Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30 and 4.36. o. *Notice of Intent* —A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice. p. *Proposed Scope of Studies Under Permit* —A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project. q. *Comments, Protests, or Motions to Intervene* —Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. r. *Filing and Service of Responsive Documents* —Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, and “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application. s. *Agency Comments* —Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Kimberly D. Bose, Secretary. [FR Doc. E7-24297 Filed 12-14-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 12850-000; Project No. 12883-000] FFP Project 25, LLC; Hydro Green Energy, LLC; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Protests December 10, 2007. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. *Type of Application:* Preliminary Permit. b. *Project No:* 12850-000 12883-000. c. *Date Filed:* July 25, 2007. d. *Applicant:* FFP Project 25, LLC., Hydro Green Energy, LLC. e. *Name of Project:* Reliance Light Project. f. *Location:* The project would be located on the Mississippi River in Iberville Parishes, Louisiana. The project uses no dam or impoundment. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791(a)-825(r). h. *Applicant Contact:* Mr. Dan Irvin, FFP Project 25, LLC, 69 Bridge Street, Manchester, MA 01944, phone

(978)232-3536.Mr. Wayne F. Krouse, Hydro Green Energy, LLC, 5090 Richmond Avenue #390, Houston, TX 77056, phone

(877)556-6566. i. *FERC Contact:* Mr. Robert Bell,

(202)502-6062. j. *Deadline for filing motions to intervene, protests and comments:* 60 days from the issuance date of this notice. All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-12850-000 & P-12883-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. k. *Competing Application:* Project No. 12828-000, Date Filed: July 23, 2007, Date Issued: October 2, 2007, Due Date: December 1, 2007. l. *Description of Project:* The proposed project for FFP Project 25, LLC would consist of:

(1)3,050 proposed 20 kilowatt Free Flow generating units having a total installed capacity of 61 megawatts,

(2)a proposed transmission line, and

(3)appurtenant facilities. The Free Flow Power Corporation's project would have an average annual generation of 267.18 gigawatt-hours and be sold to a local utility. The proposed project for Hydro Green Energy, LLC would consist of:

(1)50 proposed 100 kilowatt dual ducted horizontal axis hydrokinetic generating units having a total installed capacity of 5 megawatts,

(2)a proposed 3-miles-long, 13.6-kV transmission line, and

(3)appurtenant facilities. The Hydro Green Energy, LLC's project would have an average annual generation of 82.87 gigawatt-hours and be sold to a local utility. m. *Locations of Applications:* A copy of the application is available for inspection and reproduction at the Commission in the Public Reference Room, located at 888 First Street NE., Room 2A, Washington DC 20426, or by calling

(202)502-8371. This filing may also be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or e-mail *FERCOnlineSupport@ferc.gov.* For TTY, call

(202)502-8659. A copy is also available for inspection and reproduction at the address in item h. above. n. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission. o. *Proposed Scope of Studies under Permit* —A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project. p. *Comments, Protests, or Motions to Intervene* —Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. q. *Filing and Service of Responsive Documents* —Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings r. *Agency Comments* —Federal, State, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Kimberly D. Bose, Secretary. [FR Doc. E7-24299 Filed 12-14-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 13033-000] BPUS Generation Development, LLC; Notice of Application Accepted for Filing and Soliciting Motions To Intervene, Protests, and Comments December 10, 2007. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. *Type of Application:* Preliminary Permit. b. *Project No.:* 13033-000. c. *Date filed:* September 28, 2007. d. *Applicant:* BPUS Generation Development, LLC. e. *Name of Project:* Ferrells Bridge Dam Hydroelectric Project. f. *Location:* Cypress Creek in Marion County, Texas. It would use the U.S. Army Corps of Engineers' Ferrells Bridge Dam. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791(a)-825(r). h. *Applicant Contact:* Mr. Jeffrey M. Auser, P.E., BPUS Generation Development, LLC, 225 Greenfield Parkway, Suite 201, Liverpool, NY 13088,

(315)413-2700. i. *FERC Contact:* Robert Bell,

(202)502-4126. j. *Deadline for filing comments, protests, and motions to intervene:* 60 days from the issuance date of this notice. All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-13033-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. k. *Description of Project:* The proposed project using the U.S. Army Corps of Engineers' Ferrells Bridge Dam and operated in a run-of-river mode would consist of:

(1)A new 75-foot long, 75-foot wide, 50-foot high concrete powerhouse;

(2)two 100-foot-long, 9-foot-diameter steel penstocks;

(3)a new tailrace channel immediately downstream, river right, of the existing Corps' outlet works;

(4)two turbine/generator units with a combined installed capacity of 9 megawatts;

(5)a new 28,805-foot long above ground transmission line extending from the switchyard near the powerhouse northeast to an interconnection point with an existing transmission; and

(6)appurtenant facilities. The proposed Ferrells Bridge Dam Project would have an average annual generation of 24 gigawatt-hours. l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or e-mail *FERCONLINESUPPORT@FERC.GOV.* For TTY, call

(202)502-8659. A copy is also available for inspection and reproduction at the address in item h above. m. *Competing Preliminary Permit:* Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30 and 4.36. n. *Competing Development Application:* Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30 and 4.36. o. *Notice of Intent:* A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice. p. *Proposed Scope of Studies Under Permit:* A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project. q. *Comments, Protests, or Motions to Intervene:* Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. r. *Filing and Service of Responsive Documents:* Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, and “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application. s. *Agency Comments:* Federal, State, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Kimberly D. Bose, Secretary. [FR Doc. E7-24300 Filed 12-14-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 13034-000] BPUS Generation Development, LLC; Notice of Application Accepted for Filing and Soliciting Motions To Intervene, Protests, and Comments December 10, 2007. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. *Type of Application:* Preliminary Permit. b. *Project No.:* 13034-000. c. *Date filed:* September 28, 2007. d. *Applicant:* BPUS Generation Development, LLC. e. *Name of Project:* Mississippi River Lock & Dam No. 17 Hydroelectric Project f. *Location:* Mississippi River in Mercer County, Iowa. It would use the U.S. Army Corps of Engineers' Mississippi River Lock & Dam No. 17. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791(a)-825(r). h. *Applicant Contact:* Mr. Jeffrey M. Auser, P.E., BPUS Generation Development, LLC, 225 Greenfield Parkway, Suite 201, Liverpool, NY 13088,

(315)413-2700. i. *FERC Contact:* Robert Bell,

(202)502-4126. j. *Deadline for filing comments, protests, and motions to intervene:* 60 days from the issuance date of this notice. *All documents (original and eight copies) should be filed with:* Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-13034-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. k. *Description of Project:* The proposed project using the U.S. Army Corps of Engineers' Mississippi River Lock & Dam No. 17 and operated in a run-of-river mode would consist of:

(1)A new 90-foot long, 130-foot wide, 60-foot high concrete powerhouse;

(2)a new intake channel and tailrace channel on the levee section of the Corps' facility, on the Iowa shore, opposite the river from the lock structure;

(3)two turbine/generator units with a combined installed capacity of 8 megawatts;

(4)a new 27,217-foot long above ground transmission line extending from the switchyard near the powerhouse west to an interconnection point with an existing transmission line; and

(5)appurtenant facilities. The proposed Mississippi River Lock & Dam No. 17 Project would have an average annual generation of 45 gigawatt-hours. l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or e-mail *FERCONLINESUPPORT@FERC.GOV.* For TTY, call

(202)502-8659. A copy is also available for inspection and reproduction at the address in item h above. m. *Competing Preliminary Permit* —Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30 and 4.36. n. *Competing Development Application* —Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30 and 4.36. o. *Notice of Intent* —A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice. p. *Proposed Scope of Studies Under Permit* —A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project. q. *Comments, Protests, or Motions to Intervene* —Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. r. *Filing and Service of Responsive Documents* —Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, and “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application. s. *Agency Comments* —Federal, State, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Kimberly D. Bose, Secretary. [FR Doc. E7-24301 Filed 12-14-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 13035-000] BPUS Generation Development, LLC; Notice of Application Accepted for Filing and Soliciting Motions To Intervene, Protests, and Comments December 10, 2007. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. *Type of Application:* Preliminary Permit. b. *Project No.:* 13035-000. c. *Date filed:* September 28, 2007. d. *Applicant:* BPUS Generation Development, LLC. e. *Name of Project:* Kaskaskia River Lock and Dam Hydroelectric Project. f. *Location:* Kaskaskia River in Randolph County, Illinois. It would use the U.S. Army Corps of Engineers' Kaskaskia River Lock & Dam. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791(a)-825(r). h. *Applicant Contact:* Mr. Jeffrey M. Auser, P.E., BPUS Generation Development, LLC, 225 Greenfield Parkway, Suite 201, Liverpool, NY 13088,

(315)413-2700. i. *FERC Contact:* Robert Bell,

(202)502-4126. j. *Deadline for filing comments, protests, and motions to intervene:* 60 days from the issuance date of this notice. All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-13035-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. k. *Description of Project:* The proposed project using the U.S. Army Corps of Engineers' Kaskaskia River Lock & Dam and operated in a run-of-river mode would consist of:

(1)A new 30-foot long, 30-foot wide, 30-foot high concrete powerhouse and associated switchyard;

(2)a new intake channel and tailrace channel opposite the existing lock (river left);

(3)two turbine/generator units with a combined installed capacity of 8 megawatts;

(4)a new 46,578-foot long above ground transmission line extending from the switchyard near the powerhouse southwest to an interconnection point with an existing transmission line owned by Southern Illinois Power; and

(5)appurtenant facilities. The proposed Kaskaskia Lock & Dam Project would have an average annual generation of 27 gigawatt-hours. l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or e-mail *FERCONLINESUPPORT@FERC.GOV* . For TTY, call

(202)502-8659. A copy is also available for inspection and reproduction at the address in item h above. m. *Competing Preliminary Permit* —Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30 and 4.36. n. *Competing Development Application* —Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30 and 4.36. o. *Notice of Intent* —A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice. p. *Proposed Scope of Studies Under Permit* —A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project. q. *Comments, Protests, or Motions to Intervene* —Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. r. *Filing and Service of Responsive Documents* —Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, and “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application. s. *Agency Comments* —Federal, State, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Kimberly D. Bose, Secretary. [FR Doc. E7-24302 Filed 12-14-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 13036-000] BPUS Generation Development, LLC; Notice of Application Accepted for Filing and Soliciting Motions To Intervene, Protests, and Comments December 10, 2007. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. *Type of Application:* Preliminary Permit. b. *Project No.:* 13036-000. c. *Date filed:* September 28, 2007. d. *Applicant:* BPUS Generation Development, LLC. e. *Name of Project:* Mount Morris Dam Hydroelectric Project. f. *Location:* Genesee River in Livingston County, New York. It would use the U.S. Army Corps of Engineers' Mount Morris Dam. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791(a)—825(r). h. *Applicant Contact:* Mr. Jeffrey M. Auser, P.E., BPUS Generation Development, LLC, 225 Greenfield Parkway, Suite 201, Liverpool, NY 13088,

(315)413-2700. i. *FERC Contact:* Robert Bell,

(202)502-4126. j. *Deadline for filing comments, protests, and motions to intervene:* 60 days from the issuance date of this notice. All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-13036-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. k. *Description of Project:* The proposed project using the U.S. Army Corps of Engineers' Mount Morris Dam and operated in a run-of-river mode would consist of:

(1)A new 50-foot long, 50-foot wide, 30-foot high concrete powerhouse and associated switchyard;

(2)two 50-foot-long, 18-foot-diameter steel penstocks;

(3)a new tailrace channel immediately downstream, river left, of the existing Corps' outlet works;

(4)one turbine/generator unit with an installed capacity of 5 megawatts;

(5)a new 3,603-foot long above ground transmission line extending from the switchyard near the powerhouse northeast to an interconnection point with an existing transmission line owned by Rochester Gas and Electric Corporation; and

(6)appurtenant facilities. The proposed Mount Morris Dam Project would have an average annual generation of 20 gigawatt-hours. l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or e-mail *FERCONLINESUPPORT@FERC.GOV* . For TTY, call

(202)502-8659. A copy is also available for inspection and reproduction at the address in item h above. m. *Competing Preliminary Permit:* Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30 and 4.36. n. *Competing Development Application:* Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30 and 4.36. o. *Notice of Intent:* A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice. p. *Proposed Scope of Studies Under Permit:* A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project. q. *Comments, Protests, or Motions to Intervene:* Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. r. *Filing and Service of Responsive Documents:* Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, and “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application. s. *Agency Comments:* Federal, State, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Kimberly D. Bose, Secretary. [FR Doc. E7-24303 Filed 12-14-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 13037-000] BPUS Generation Development, LLC; Notice of Application Accepted for Filing and Soliciting Motions To Intervene, Protests, and Comments December 10, 2007. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. *Type of Application:* Preliminary Permit. b. *Project No.:* 13037-000. c. *Date filed:* September 28, 2007. d. *Applicant:* BPUS Generation Development, LLC. e. *Name of Project:* Nimrod Dam Hydroelectric Project. f. *Location:* Fourche La Fave River in Yell County, Arkansas. It would use the U.S. Army Corps of Engineers' Nimrod Dam. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791(a)—825(r). h. *Applicant Contact:* Mr. Jeffrey M. Auser, P.E., BPUS Generation Development, LLC, 225 Greenfield Parkway, Suite 201, Liverpool, NY 13088,

(315)413-2700. i. *FERC Contact:* Robert Bell,

(202)502-4126. j. *Deadline for filing comments, protests, and motions to intervene:* 60 days from the issuance date of this notice. All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-13037-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. k. *Description of Project:* The proposed project using the U.S. Army Corps of Engineers' Nimrod Dam and operated in a run-of-river mode would consist of:

(1)A new 50-foot long, 50-foot wide, 40-foot high concrete powerhouse and associated switchyard;

(2)one 200-foot-long, 8-foot-diameter steel penstock;

(3)a new tailrace channel immediately downstream of the existing Corps' outlet works;

(4)one turbine/generator unit with an installed capacity of 6 megawatts;

(5)a new 6,079-foot long above ground transmission line extending from the switchyard near the powerhouse east to an interconnection point with an existing transmission line owned by First Electric Cooperative Electric Corporation; and

(6)appurtenant facilities. The proposed Nimrod Dam Project would have an average annual generation of 13 gigawatt-hours. l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or e-mail *FERCONLINESUPPORT@FERC.GOV.* For TTY, call

(202)502-8659. A copy is also available for inspection and reproduction at the address in item h above. m. *Competing Preliminary Permit* —Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30 and 4.36. n. *Competing Development Application* —Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30 and 4.36. o. *Notice of Intent* —A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice. p. *Proposed Scope of Studies Under Permit* —A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project. q. *Comments, Protests, or Motions to Intervene* —Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. r. *Filing and Service of Responsive Documents* —Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, and “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application. s. *Agency Comments* —Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Kimberly D. Bose, Secretary. Project No. 13037-000 [FR Doc. E7-24304 Filed 12-14-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 13038-000] BPUS Generation Development, LLC; Notice of Application Accepted for Filing and Soliciting Motions To Intervene, Protests, and Comments December 10, 2007. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. *Type of Application:* Preliminary Permit. b. *Project No.:* 13038-000. c. *Date filed:* September 28, 2007. d. *Applicant:* BPUS Generation Development, LLC. e. *Name of Project:* William H. Harsha Dam Hydroelectric Project. f. *Location:* East Fork of the Little Miami River in Clermont County, Ohio. It would use the U.S. Army Corps of Engineers' William H. Harsha Dam. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791(a)-825(r). h. *Applicant Contact:* Mr. Jeffrey M. Auser, P.E., BPUS Generation Development, LLC, 225 Greenfield Parkway, Suite 201, Liverpool, NY 13088,

(315)413-2700. i. *FERC Contact:* Robert Bell,

(202)502-4126. j. *Deadline for filing comments, protests, and motions to intervene:* 60 days from the issuance date of this notice. All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-13038-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. k. *Description of Project:* The proposed project using the U.S. Army Corps of Engineers' William H. Harsha Dam and operated in a run-of-river mode would consist of:

(1)A new 100-foot long, 100-foot wide, 50-foot high concrete powerhouse immediately below the dam, on the left bank of the existing stilling basin;

(2)one 1,000-foot-long, 9-meter-diameter steel penstock;

(3)the existing Corps' intake and a new conduit embed in the base of one of the existing outlet tunnels;

(4)two turbine/generator units with a combined installed capacity of 15 megawatts;

(5)a new 9,760-foot long above ground transmission line extending from the switchyard near the powerhouse south to an interconnection point with an existing transmission line; and

(6)appurtenant facilities. The proposed William H. Harsha Dam Project would have an average annual generation of 25 gigawatt-hours. l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or e-mail *FERCONLINESUPPORT@FERC.GOV.* For TTY, call

(202)502-8659. A copy is also available for inspection and reproduction at the address in item h above. m. *Competing Preliminary Permit:* Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30 and 4.36. n. *Competing Development Application:* Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30 and 4.36. o. *Notice of Intent:* A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice. p. *Proposed Scope of Studies Under Permit:* A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project. q. *Comments, Protests, or Motions to Intervene:* Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. r. *Filing and Service of Responsive Documents:* Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, and “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application. s. *Agency Comments:* Federal, State, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Kimberly D. Bose, Secretary. [FR Doc. E7-24305 Filed 12-14-07; 8:45 am] BILLING CODE 6717-01-P ENVIRONMENTAL PROTECTION AGENCY Agency Information Collection Activities OMB Responses AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: This document announces the Office of Management and Budget's

(OMB)responses to Agency Clearance requests, in compliance with the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. FOR FURTHER INFORMATION CONTACT: Rick Westlund

(202)566-1682, or e-mail at *westlund.rick@epa.gov* and please refer to the appropriate EPA Information Collection Request

(ICR)Number. SUPPLEMENTARY INFORMATION: OMB Responses to Agency Clearance Requests OMB Approvals EPA ICR Number 1687.07; NESHAP for Aerospace Manufacturing and Rework (Renewal); in 40 CFR part 63, subpart GG; was approved 11/08/2007; OMB Number 2060-0314; expires 11/30/2010. EPA ICR Number 1442.19; Land Disposal Restrictions (Renewal); in 40 CFR part 268; was approved 11/09/2007; OMB Number 2050-0085; expires 11/30/2010. EPA ICR Number 0976.13; The 2007 Hazardous Waste Report (Renewal); in 40 CFR 270.30, 40 CFR 262.40, 40 CFR 262.40(b), 40 CFR 262.41, 40 CFR 264.75, and 40 CFR 265.75; was approved 11/15/2007; OMB Number 2050-0024; expires 11/30/2009. EPA ICR Number 0616.09; Compliance Requirement for Child Resistant Packaging (Renewal); in 40 CFR part 157; was approved 11/15/2007; OMB Number 2070-0052; expires 11/30/2010. EPA ICR Number 1903.02; 2007 National Survey of Local Emergency Planning Committees (Reinstatement); was approved 11/21/2007; OMB Number 2050-0162; expires 11/30/2010. EPA ICR Number 1591.18; Regulation of Fuels and Fuel Additives: Modification of Anti-Dumping Baselines for Gasoline Produced or Imported for Use in Hawaii, Alaska and U.S. Territories (Final Rule); in 40 CFR 80.93(d); was approved 11/27/2007; OMB Number 2060-0277; expires 12/31/2007. EPA ICR Number 1250.08; Request for Contractor Access to TSCA Confidential Business Information

(CBI)(Renewal); was approved 11/28/2007; OMB Number 2070-0075; expires 11/30/2010. Short-Term Approval EPA ICR Number 1748.04; Annual Reporting form for State Small Business Stationary source technical and environmental compliance assistance program (SBTCP); short-term extension was approved by OMB on 11/26/2007; OMB Number 2060-0337; expires 01/31/2008. EPA ICR Number 2020.02; Federal Implementation Plans under the Clean Air Act for Indian Reservations in Idaho, Oregon, and Washington (Final Rule); in 40 CFR part 49, subpart M; short-term extension was approved by OMB on 11/28/2007; OMB Number 2060-0558; expires 02/29/2008. Comment Filed EPA ICR Number 2266.01; National Volatile Organic Compound

(VOC)Emission Standards for Aerosol Coatings (Proposed Rule); OMB filed comments on 11/15/2007. EPA ICR Number 2267.01; NESHAP for Iron and Steel Foundry Area Sources (Proposed Rule); OMB filed comments on 11/30/2007. Withdrawn EPA ICR Number 2028.01; OMB Number 2060-0551; NESHAP for Industrial, Commercial, and Institutional Boilers and Process Heaters (40 CFR part 63, subpart DDDDD) (Renewal) was withdrawn by Agency on 12/06/2007. Dated: December 10, 2007. Sara Hisel-McCoy, Director, Collection Strategies Division. [FR Doc. E7-24350 Filed 12-14-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OAR-2007-0595; FRL-8507-2] Agency Information Collection Activities; Submission to OMB for Review and Approval; Comment Request; Regulation of Fuels and Fuel Additives: Detergent Gasoline (Renewal); EPA ICR No. 1655.06, OMB Control No. 2060-0275 AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act

(PRA)(44 U.S.C. 3501 *et seq.* ), this document announces that an Information Collection Request

(ICR)has been forwarded to the Office of Management and Budget

(OMB)for review and approval. This is a request to renew an existing approved collection. The ICR, which is abstracted below, describes the nature of the information collection and its estimated burden and cost. DATES: Additional comments may be submitted on or before January 16, 2008. ADDRESSES: Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2007-0595, to

(1)EPA online using *http://www.regulations.gov* (our preferred method), by email to *a-and-r-Docket@epa.gov,* or by mail to: EPA Docket Center, Environmental Protection Agency, Air and Radiation Docket and Information Center, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, and

(2)OMB by mail to: Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *Attention:* Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: Jaimee Dong, Office of Transportation and Air Quality, (Mailcode: 6406J), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number:

(202)343-9672; fax number:

(202)343-2802; e-mail address: *dong.jaimee@epa.gov.* SUPPLEMENTARY INFORMATION: EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On August 21, 2007 (72 FR 46629), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice. EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2007-0595, which is available for online viewing at *http://www.regulations.gov,* or in person viewing at the Air and Radiation Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is 202-566-1744, and the telephone number for the Air and Radiation Docket is 202-566-1742. Use EPA's electronic docket and comment system at *http://www.regulations.gov,* to submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at *http://www.regulations.gov* as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose public disclosure is restricted by statute. For further information about the electronic docket, go to *http://www.regulations.gov.* *Title:* Regulation of Fuels and Fuel Additives: Detergent Gasoline (Renewal). *ICR numbers:* EPA ICR No. 1655.06, OMB Control No. 2060-0275. *ICR Status:* This ICR is scheduled to expire on January 31, 2008. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the **Federal Register** when approved, are listed in 40 CFR part 9, and are displayed either by publication in the **Federal Register** or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9. *Abstract:* Gasoline combustion results in the formation of engine deposits that contribute to increased emissions. Detergent additives deter deposit formation. The Clean Air Act requires gasoline to contain a detergent additive. The regulations at 40 CFR part 80—subpart G specify certification requirements for manufacturers of detergent additives, recordkeeping or reporting requirements for blenders of detergents into gasoline or post-refinery component (any gasoline blending stock or any oxygenate which is blended with gasoline subsequent to the gasoline refining process), and reporting or recordkeeping requirements for manufacturers, transferors, or transferees of detergents, gasoline, or post-refinery component (PRC). These requirements ensure that

(1)a detergent is effective before it is certified by EPA,

(2)a certified detergent, at the minimum concentration necessary to be effective (known as the lowest additive concentration (LAC)), is blended into gasoline, and

(3)only gasoline which contains a certified detergent at its LAC is delivered to the consumer. The EPA maintains a list of certified gasoline detergents, which is publicly available. As of June 2007 there were 393 certified detergents and 18 detergent manufacturers. *Burden Statement:* The annual public reporting and recordkeeping burden for this collection of information is estimated to average 3.2 hours per response. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. *Respondents/Affected Entities:* Manufacturers, transferors and transferees, and blenders into gasoline or post-refinery component of detergent additives; Manufacturers, transferors, and transferees of gasoline or post-refinery components; and detergent additive researchers. *Estimated Number of Respondents:* 1368. *Frequency of Response:* 50.8 *Estimated Total Annual Hour Burden:* 220,608. *Estimated Total Annual Cost:* $15,547,566, includes $335,180 annualized capital or O&M costs. *Changes in the Estimates:* There is a decrease of 1200 hours and an increase in total cost of $2,269,962 in the total estimated burden currently identified in the OMB Inventory of Approved ICR Burdens. These changes are due to a decrease in annual certification applications, from 30 to 10, and an update in labor costs. Dated: December 10, 2007. Sara Hisel-McCoy, Director, Collection Strategies Division. [FR Doc. E7-24351 Filed 12-14-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-TRI-2007-0355; FRL-8507-5] Agency Information Collection Activities, Proposed Collections; Toxic Chemical Release Reporting; Request for Comments on Proposed Changes and the Renewal of Form R (EPA ICR No. 1363.15, OMB Control No. 2070-0093) AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act

(PRA)(44 U.S.C. 3501 *et seq.* ), this document announces that an Information Collection Request

(ICR)has been forwarded to the Office of Management and Budget

(OMB)for review and approval. This is a request to make changes to and renew an existing approved collection. The ICR Supporting Statement, which is abstracted below, describes the nature of the information collection (including proposed minor form changes) and its estimated burden and cost. DATES: Additional comments may be submitted on or before January 16, 2008. ADDRESSES: Submit your comments, referencing Docket ID No. EPA-HQ-TRI-2007-0355, to

(1)EPA online using *http://www.regulations.gov* (our preferred method), by e-mail to *oei.docket@epa.gov* , or by mail to EPA Docket Center, U.S. Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, and

(2)OMB by mail to Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: Cassandra Vail, Toxics Release Inventory Program Division, Office of Information Analysis and Access (2844T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number, 202-566-0753; fax number, 202-566-0740; e-mail address, *vail.cassandra@epa.gov.* SUPPLEMENTARY INFORMATION: EPA submitted an earlier version of the ICR Supporting Statement to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On July 11, 2007 (72 FR 37762), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received four comments during the comment period, which are addressed in the Response to Comments Document. Any additional comments on the revised ICR Supporting Statement should be submitted to EPA and OMB within 30 days of this notice. EPA has established a public docket for the ICR described in this notice under Docket ID No. EPA-HQ-TRI-2007-0355, which is available for online viewing at *http://www.regulations.gov* , or in person at the OEI Docket, EPA Docket Center (EPA/DC), U.S. EPA West Building, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The EPA/DC Public Reading Room is open from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is 202-566-1744, and the telephone number for the OEI Docket is 202-566-1752. Use EPA's electronic docket and comment system at *http://www.regulations.gov* to submit or view public comments, to access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at *http://www.regulations.gov* as EPA receives them and without change, unless the comment contains copyrighted materials, Confidential Business Information (CBI,) or other information for which public disclosure is restricted by statute. For further information about the electronic docket, go to *http://www.regulations.gov.* *Title:* ICR Renewal and Proposed Changes to the TRI Form R, Information Collection Request Supporting Statement. *ICR numbers:* EPA ICR No. 1363.15, OMB Control No. 2070-0093. *ICR Status:* The current ICR is scheduled to expire on January 31, 2008. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the **Federal Register** when approved, are listed in 40 CFR part 9 and are displayed either by publication in the **Federal Register** or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9. *Abstract:* The Emergency Planning and Community Right-to-Know Act (EPCRA) section 313 requires owners and operators of certain facilities that manufacture, process, or otherwise use any of certain listed toxic chemicals and chemical categories in excess of applicable threshold quantities to report annually to the U.S. Environmental Protection Agency and to the states in which such facilities are located on their environmental releases and transfers of and other waste management activities for such chemicals. In addition, section 6607 of the Pollution Prevention Act

(PPA)requires facilities to provide information on the quantities of the toxic chemicals in waste streams and the efforts made to reduce or eliminate those quantities. Annual reporting under EPCRA section 313 of toxic chemical releases and other waste management information provides citizens with a useful picture of the total disposition of chemicals in their communities and helps focus industry's attention on pollution prevention and source reduction opportunities. In accordance with the mission to protect the environment and human health, EPA believes that the public has a right to know about the disposition of chemicals within communities and the management of such chemicals by facilities in industries subject to EPCRA section 313 reporting. This reporting has been successful in providing communities with important information regarding the disposition of toxic chemicals and other waste management information of toxic chemicals from manufacturing facilities in their areas. EPA collects, processes, and makes available to the public all of the information collected that is not subject to trade secrecy claims. The information gathered under these authorities is stored in a database maintained at EPA and is available through the Internet. This information, commonly known as the Toxics Release Inventory (TRI), is used extensively by both EPA and the public sector. Program offices within EPA use TRI data, along with other sources of data, to establish priorities, evaluate potential exposure scenarios, and undertake regulatory and enforcement activities. Environmental and public interest groups use the data in studies and reports, making the public more aware of releases of chemicals in their communities. Comprehensive publicly-available data about releases, transfers, and other waste management activities of toxic chemicals at the community level are generally not available, other than under the reporting requirements of EPCRA section 313. Permit data are often difficult to obtain, are not cross-media, and provide only a limited perspective on a facility's overall performance. With TRI, communities and governments know what toxic chemicals industrial facilities in their area release, transfer, or otherwise manage as waste. In addition, industries have an additional tool for evaluating their production efficiencies and for measuring progress on their pollution prevention goals. Responses to the collection of information are mandatory (see 40 CFR part 372). Respondents may claim trade secrecy for a chemical's identity as described in section 322 of EPCRA and its implementing regulations in 40 CFR part 350. EPA will disclose information that is covered by a claim of trade secrecy only to the extent permitted by, and in accordance with, the procedures in 40 CFR part 350 and 40 CFR part 2. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9 and are identified on the form and/or instrument, if applicable. *Burden Statement:* The annual public reporting and recordkeeping burden for this collection of information is estimated to average 29.66 hours per form for a single listed Non-PBT chemical and 51.34 hours for a single listed PBT chemical. (All estimates incorporate proposed changes in the reporting burden.) Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. *Respondents/Affected Entities:* The reporting requirements found in EPCRA section 313 apply to owners and operators of facilities that have 10 or more full-time employees, manufacture or process more than 25,000 pounds or otherwise use more than 10,000 pounds of a listed chemical, and are in the manufacturing sector or in any of seven additional industry sectors added to the TRI Program by EPA in 1997. Historically these sectors were identified by their Standard Industrial Classification

(SIC)codes. Beginning with Reporting Year

(RY)2006, the TRI Program converted from SIC codes to North American Industry Classification System (NAICS) codes (71 FR 32464, June 6, 2006). The full list of NAICS codes for facilities that must report to TRI (including exemptions and/or limitations) if all other threshold determinations are met can be found in Appendix F of the ICR Supporting Statement. *Estimated Number of Responses:* 66,751. *Estimated Number of Respondents:* 19,441. *Frequency of Response:* Once per year. *Estimated Total Annual Hour Burden:* 3,217,280. *Estimated Total Annual Cost:* $160,790,000, includes $0 annualized capital or O&M costs. *Changes in the Estimates:* In this ICR Renewal, the effect of the TRI final rule expanding Form A eligibility (71 FR 76932, December 22, 2006) is expected to reduce overall TRI reporting burden due to increased Form A eligibility (i.e., number of Form Rs decreased and number of Form As increased, yielding a net burden decrease) with total respondent burden of Form R reporting projected at 3,215,715 hours. *Proposed Changes from the Last Approval:* EPA proposes to make the following changes to the ICR for the TRI Form R:

(1)*Provide more specific “basis of estimate” codes (applies to Form R only.)* Facilities may currently select among four codes to indicate how they calculate their release quantities: the use of monitoring data (code M), mass balance calculations (C), emission factors (E), and other approaches (O). The addition of more specific codes in the TRI Reporting Forms and Instructions will allow reporting facilities to provide more detailed information on their basis of estimate. Collecting more specific “basis of estimate” data will help the TRI Program determine which methods are most often used and/or appropriate for use by particular industries for certain chemicals, as well as when new TRI guidance may be needed. Therefore, EPA will provide a more extensive list of codes for “basis of estimate” in the TRI Reporting Forms and Instructions, including

(M1)and

(M2)for continuous and periodic/random monitoring, respectively; and

(E1)and

(E2)for published and site-specific emission factors, respectively. (Codes

(C)and

(O)will remain unchanged.) By using these codes, facilities will indicate the principal method used to determine the quantities reported to TRI.

(2)*Enhance Public Contact information (applies to Form and Form A.)* EPA proposes to add a place on the form where a facility can provide the e-mail address for the “Public Contact” on the Form R, in addition to the Public Contact name and telephone number which are already on the Form R. This should make it easier to contact the individual identified.

(3)*Add boxes for entering revision codes (applies to Form R and Form A.)* The TRI Program currently receives many form revisions each year, but does not currently collect information on the reasons for the revisions. EPA proposes to add new revision codes that will help both the public and the TRI Program staff understand why a facility resubmitted a form. In addition, the TRI Program may be able to analyze the revision codes entered by facilities to identify and address recurring reporting issues that facilities may be facing, ultimately reducing errors and saving time for both the Agency and the reporting facilities. Facilities would be able to report up to two codes (listed and defined in the TRI Reporting Forms and Instructions) indicating the main reason(s) that a form is being revised.

(4)*Provide a field for withdrawing a form and add boxes for entering withdrawal Codes (applies to Form R and Form A.)* Currently, a facility that wishes to withdraw a previously submitted form must submit its request, including the rationale, as a hard copy memorandum to the TRI Data Processing Center. Adding a “Withdrawal” field and associated code boxes for reasons for withdrawal to Form R will

(1)streamline the withdrawal process for facilities,

(2)make it easier for EPA to automate the withdrawal process, and

(3)improve the Agency's ability to analyze the reasons for withdrawals. Notes 1. EPA also proposed other changes (72 FR 37762; July 11, 2007) but has since concluded those changes are not necessary. 2. Additional changes were made to adjust estimates for “Number of Responses” and “Burden Hours” to reflect the most recent conditions of RY2005. In the last ICR, RY2002 was the base year; in the last OMB Action, RY2004 was the base year. Over this period of time, the total number of Form R submissions declined. Dated: December 11, 2007. Sara Hisel-McCoy, Director, Collection Strategies Division. [FR Doc. E7-24369 Filed 12-14-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OECA-2007-0468; FRL-8507-6] Agency Information Collection Activities; Submission to OMB for Review and Approval; Comment Request; Environmental Impact Assessment of Nongovernmental Activities in Antarctica (Renewal); EPA ICR No. 1808.05, OMB Control No. 2020-0007 AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act

(PRA)(44 U.S.C. 3501 et seq.), this document announces that an Information Collection Request

(ICR)has been forwarded to the Office of Management and Budget

(1)EPA online using *www.regulations.gov* (our preferred method), by email to *docket.oeca@epa.gov,* or by mail to: EPA Docket Center, Environmental Protection Agency, Enforcement and Compliance Docket; Environmental Protection Agency; Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, and

(2)OMB by mail to: Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: Aimee Hessert, NEPA Compliance Division, Office of Federal Activities, (Mail Code 2252A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number:

(202)564-0993; fax number:

(202)564-0072; e-mail address: *hessert.aimee@epa.gov.* SUPPLEMENTARY INFORMATION: EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On June 12, 2007 (72 FR 32292), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received 1 comment during the comment period, which is addressed in the ICR. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice. EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OECA-2007-0468, which is available for online viewing at *www.regulations.gov* , or in person viewing at the Enforcement and Compliance Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room is open from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is 202-566-1744, and the telephone number for the Enforcement and Compliance Docket is 202-564-7152. Use EPA's electronic docket and comment system at *www.regulations.gov* , to submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at *www.regulations.gov* as EPA receives them and without change, unless the comment contains copyrighted material, Confidential Business Information (CBI), or other information whose public disclosure is restricted by statute. For further information about the electronic docket, go to *www.regulations.gov.* *Title:* Environmental Impact Assessment of Nongovernmental Activities in Antarctica (Renewal). *ICR numbers:* EPA ICR No. 1808.05, OMB Control No. 2020-0007. *ICR Status:* This ICR is scheduled to expire on December 31, 2007. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the **Federal Register** when approved, are listed in 40 CFR part 9, are displayed either by publication in the **Federal Register** or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9. *Abstract:* The Environmental Protection Agency's (EPA's) regulations at 40 CFR part 8, Environmental Impact Assessment of Nongovernmental Activities in Antarctica (Final Rule), were promulgated pursuant to the Antarctic Science, Tourism, and Conservation Act of 1996 (Act), 16 U.S.C. 2401 et seq., as amended, 16 U.S.C. 2403a, which implements the Protocol on Environmental Protection (Protocol) to the Antarctic Treaty of 1959 (Treaty). The Final Rule provides for assessment of the environmental impacts of nongovernmental activities in Antarctica, including tourism, for which the United States is required to give advance notice under Paragraph 5 of Article VII of the Treaty, and for coordination of the review of information regarding environmental impact assessments received from other Parties under the Protocol. The requirements of the Final Rule apply to operators of nongovernmental expeditions organized or proceeding from the territory of the United States to Antarctica and include commercial and non-commercial expeditions. Expeditions may include ship-based tours; yacht, skiing or mountaineering expeditions; privately funded research expeditions; and other nongovernmental activities. The Final Rule does not apply to individual U.S. citizens or groups of citizens planning travel to Antarctica on an expedition for which they are not acting as an operator. (Operators, for example, typically acquire use of vessels or aircraft, hire expedition staff, plan itineraries, and undertake other organizational responsibilities.) The Final rule provides nongovernmental operators with the specific requirements they need to meet in order to comply with the requirements of Article 8 and Annex I to the Protocol. The provisions of the Final Rule are intended to ensure that potential environmental effects of nongovernmental activities undertaken in Antarctica are appropriately identified and considered by the operator during the planning process and that to the extent practicable appropriate environmental safeguards which would mitigate or prevent adverse impacts on the Antarctic environment are identified by the operator. *Environmental Documentation* . Persons subject to the Final Rule must prepare environmental documentation to support the operator's determination regarding the level of environmental impact of the proposed expedition. Environmental documentation includes a Preliminary Environmental Review Memorandum (PERM), an Initial Environmental Evaluation (IEE), or a Comprehensive Environmental Evaluation (CEE). The environmental document is submitted to the Office of Federal Activities (OFA). If the operator determines that an expedition may have:

(1)Less than a minor or transitory impact, a PERM needs to be submitted no later than 180 days before the proposed departure to Antarctica;

(2)no more than minor or transitory impacts, an IEE needs to be submitted no later than 90 days before the proposed departure; or

(3)more than minor or transitory impacts, a CEE needs to be submitted. Operators who anticipate such activities are encouraged to consult with EPA as soon as possible regarding the date for submittal of the CEE. (Article 3(4), of Annex I of the Protocol requires that draft CEEs be distributed to all Parties and the Committee for Environmental Protection 120 days in advance of the next Antarctic Treaty Consultative Meeting

(ATCM)at which the CEE may be addressed.) The Protocol and the Final Rule also require an operator to employ procedures to assess and provide a regular and verifiable record of the actual impacts of an activity which proceeds on the basis of an IEE or CEE. The record developed through these measures needs to be designed to:

(a)Enable assessments to be made of the extent to which environmental impacts of nongovernmental expeditions are consistent with the Protocol; and

(b)provide information useful for minimizing and mitigating those impacts and, where appropriate, on the need for suspension, cancellation, or modification of the activity. Moreover, an operator needs to monitor key environmental indicators for an activity proceeding on the basis of a CEE. An operator may also need to carry out monitoring in order to assess and verify the impact of an activity for which an IEE would be prepared. For activities that require an IEE, an operator should be able to use procedures currently being voluntarily utilized by operators to provide the required information. Should an activity require a CEE, the operator should consult with EPA to:

(a)Identify the monitoring regime appropriate to that activity, and

(b)determine whether and how the operator might utilize relevant monitoring data collected by the U.S. Antarctic Program. OFA would consult with the National Science Foundation and other interested Federal agencies regarding the monitoring regime. In cases of emergency related to the safety of human life or of ships, aircraft, equipment and facilities of high value, or the protection of the environment which would require an activity to be undertaken without completion of the documentation procedures set out in the Final Rule, the operator would need to notify the Department of State within 15 days of any activities which would have otherwise required preparation of a CEE, and provide a full explanation of the activities carried out within 45 days of those activities. (During the time the Interim Final and Final Rules have been in effect, there were no emergencies requiring notification by U.S. operators. An Interim Final Rule was in effect from April 30, 1997, until replaced on December 6, 2001, by the Final Rule). Environmental documents (e.g., PERM, IEE, CEE) are submitted to OFA. Environmental documents are reviewed by OFA, in consultation with the National Science Foundation and other interested Federal agencies, and also made available to other Parties and the public as required under the Protocol or otherwise requested. OFA notifies the public of document availability via the World Wide Web at: *http://www.epa.gov/compliance/nepa/international/antarctica/index.html* . The types of nongovernmental activities currently being carried out (e.g., ship-based tours, land-based tours, flights, and privately funded research expeditions) are typically unlikely to have impacts that are more than minor or transitory, thus an IEE is the typical level of environmental documentation submitted. For the 1997-1998 through 2003-2004 austral summer seasons during the time the Interim Final Rule and Final Rule have been in effect, all respondents submitted IEEs with the exception of one PERM. Paperwork reduction provisions in the Final Rule that are used by the operators include:

(a)Incorporation of material in the environmental document by referring to it in the IEE,

(b)inclusion of all proposed expeditions by one operator within one IEE;

(c)use of one IEE to address expeditions being carried out by more than one operator; and

(d)use of multi-year environmental documentation to address proposed expeditions for a period of up to five consecutive austral summer seasons. *Coordination of Review of Information Received from Other Parties to the Treaty* . The Final Rule also provides for the coordination of review of information received from other Parties and the public availability of that information including:

(1)A description of national procedures for considering the environmental impacts of proposed activities;

(2)an annual list of any IEEs and any decisions taken in consequence thereof;

(3)significant information obtained and any action taken in consequence thereof with regard to monitoring from IEEs to CEEs; and

(4)information in a final CEE. This provision fulfills the United States' obligation to meet the requirements of Article 6 of Annex I to the Protocol. The Department of State is responsible for coordination of these reviews of drafts with interested Federal agencies, and for public availability of documents and information. This portion of the Final Rule does not impose paperwork requirements on any nongovernmental person subject to U.S. regulation. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9 and are identified on the form and/or instrument, if applicable. *Burden Statement* : The annual public reporting and recordkeeping burden for this collection of information is estimated to average 1663 hours annually, or 72 hours per response. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. *Respondents/Affected Entities* : Most operators are ship-based or land-based tour operators. The SIC Code for Tour Operators is 4725 and the NAICS Code is 561520. *Estimated Number of Respondents:* 23. *Frequency of Response:* Annually. *Estimated Total Annual Hour Burden:* 1663 hours. *Estimated Total Annual Cost* : $133,916, includes $4,219 annualized capital or O&M costs. *Changes in the Estimates* : There is an increase of 115 hours in the total estimated burden currently identified in the OMB Inventory of Approved ICR Burdens. This increase is the result of an increase in the number of respondents anticipated during the 3-year ICR renewal period and the level of environmental documentation EPA anticipates the respondents will submit. Dated: December 6, 2007. Sara Hisel-McCoy, Director, Collection Strategies Division. [FR Doc. E7-24371 Filed 12-14-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-TRI-2007-0355; FRL-8507-4] Agency Information Collection Activities, Proposed Collections; Toxic Chemical Release Reporting; Request for Comments on Proposed Changes and the Renewal of the Form A Certification Statement (EPA ICR No. 1704.09, OMB Control No. 2070-0143) AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act

(PRA)(44 U.S.C. 3501 *et seq.* ), this document announces that an Information Collection Request

(ICR)has been forwarded to the Office of Management and Budget

(2)OMB by mail to Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *Attention:* Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: Cassandra Vail, Toxics Release Inventory Program Division, Office of Information Analysis and Access (2844T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number, 202-566-0753; fax number, 202-566-0740; e-mail address, *vail.cassandra@epa.gov* . SUPPLEMENTARY INFORMATION: EPA submitted an earlier version of the ICR Supporting Statement to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On July 11, 2007 (72 FR 37762), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received four comments during the comment period, which are addressed in the Response to Comments document. Any additional comments on the revised ICR Supporting Statement should be submitted to EPA and OMB within 30 days of this notice. EPA has established a public docket for this ICR Supporting Statement under Docket ID No. EPA-HQ-TRI-2007-0355, which is available for online viewing at *http://www.regulations.gov* , or in person at the OEI Docket, EPA Docket Center (EPA/DC), U.S. EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room is open from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is 202-566-1744, and the telephone number for the OEI Docket is 202-566-1752. Use EPA's electronic docket and comment system at *http://www.regulations.gov* to submit or view public comments, to access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at *http://www.regulations.gov* , as EPA receives them and without change, unless the comment contains copyrighted material, Confidential Business Information (CBI), or other information for which public disclosure is restricted by statute. For further information about the electronic docket, go to *http://www.regulations.gov* . *Title:* The ICR Renewal and Proposed Changes to the TRI Form A Certification Statement, Information Collection Request Supporting Statement. *ICR numbers:* EPA ICR No. 1704.09, OMB Control No. 2070-0143. *ICR Status:* The current ICR is scheduled to expire on January 31, 2008. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the **Federal Register** when approved, are listed in 40 CFR part 9 and are displayed either by publication in the **Federal Register** or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9. *Abstract:* The Emergency Planning and Community Right-to-Know Act (EPCRA) section 313 requires owners and operators of certain facilities that manufacture, process, or otherwise use any of certain listed toxic chemicals and chemical categories in excess of applicable threshold quantities to report annually to the U.S. Environmental Protection Agency and to the states in which such facilities are located on their environmental releases and transfers of and other waste management activities for such chemicals. In addition, section 6607 of the Pollution Prevention Act

(PPA)requires facilities to provide information on the quantities of the toxic chemicals in waste streams and the efforts made to reduce or eliminate those quantities. Annual reporting under EPCRA section 313 of toxic chemical releases and other waste management information provides citizens with a useful picture of the total disposition of chemicals in their communities and helps focus industry's attention on pollution prevention and source reduction opportunities. In accordance with the mission to protect the environment and human health, EPA believes that the public has a right to know about the disposition of chemicals within communities and the management of such chemicals by facilities in industries subject to EPCRA section 313 reporting. This reporting has been successful in providing communities with important information regarding the disposition of toxic chemicals and other waste management information of toxic chemicals from manufacturing facilities in their areas. EPA collects, processes, and makes available to the public all of the information collected that is not subject to trade secrecy claims. The information gathered under these authorities is stored in a database maintained at EPA and is available through the Internet. This information, commonly known as the Toxics Release Inventory (TRI), is used extensively by both EPA and the public sector. Program offices within EPA use TRI data, along with other sources of data, to establish priorities, evaluate potential exposure scenarios, and undertake regulatory and enforcement activities. Environmental and public interest groups use the data in studies and reports, making the public more aware of releases of chemicals in their communities. Comprehensive publicly-available data about releases, transfers, and other waste management activities of toxic chemicals at the community level are generally not available, other than under the reporting requirements of EPCRA section 313. Permit data are often difficult to obtain, are not cross-media, and provide only a limited perspective on a facility's overall performance. With TRI, communities and governments know what toxic chemicals industrial facilities in their area release, transfer, or otherwise manage as waste. In addition, industries have an additional tool for evaluating their production efficiencies and for measuring their progress on their pollution prevention goals. Responses to the collection of information are mandatory (see 40 CFR part 372). Respondents may claim trade secrecy for a chemical's identity as described in section 322 of EPCRA and its implementing regulations in 40 CFR part 350. EPA will disclose information that is covered by a claim of trade secrecy only to the extent permitted by, and in accordance with, the procedures in 40 CFR part 350 and 40 CFR part 2. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9 and are identified on the form and/or instrument, if applicable. *Burden Statement:* The annual public reporting and recordkeeping burden for this collection of information is estimated to average 20.52 hours for facilities submitting a Form A Certification Statement for Non-PBT chemicals and 35.89 hours for facilities submitting a Form A Certification statement for a single listed PBT chemical under EPCRA section 313. (All estimates incorporate proposed changes in the reporting burden.) Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. Respondents/Affected Entities: Facilities with low quantities of listed toxic chemicals in waste may certify on a Form A that they do not exceed an annual reportable amount

(ARA)for total waste management (release, recycling, energy recovery, and treatment). Detailed release and waste management information need not be reported. Previously, a facility that met the EPCRA section 313 reporting thresholds, but estimated that their total waste management of a listed non-persistent, bioaccommulative, toxic (non-PBT) chemical did not exceed 500 pounds per year, could use the Form A Certification Statement, rather than the longer Form R, provided that facility met certain other conditions. The use of Form A was not previously allowed for PBT chemicals. Now due to a final TRI rule promulgated (71 FR 76932, December 22, 2006) Form A eligibility has been expanded as follows: • *New Eligibility for Form A: PBT Chemicals* —allows a facility reporting on PBT chemicals, except dioxin and dioxin-like compounds, with zero disposal or other releases to use Form A, provided they meet the 1,000,000 pound alternate reporting threshold and have 500 pounds or less of total other waste-management quantities. (Sections 8.2—8.8) • *Expanded Eligibility for Form A: Non-PBT Chemicals* —allows a facility reporting on Non-PBT chemicals with total waste management of 5,000 pounds or less and 2,000 pounds or less of disposal or other releases to use Form A, provided they meet the 1,000,000 pound alternate reporting threshold. Each qualifying facility that chooses to apply this alternate manufacture, process or otherwise-use threshold must file a Form A Certification Statement certifying that they met the condition of the alternate threshold for one or more chemicals, in lieu of completing a Form R for each listed chemical for which the facility exceeded statutory thresholds. The Form A Certification Statement is submitted to both the TRI Data Processing Center and the designated state recipient in the same manner that the Form R is submitted. The Form A Certification Statement provides a signed statement that the sum of the amount of the listed toxic chemical or chemicals in releases or wastes did not exceed the appropriate PBT or Non-PBT release and waste thresholds for the reporting year, and that the chemical(s) was manufactured, processed, or otherwise-used in an amount not exceeding 1,000,000 pounds during this reporting year. A single Form A Certification Statement may contain as many listed toxic chemicals as meet the conditions of the alternate threshold. *Estimated Number of Responses:* 10,235. *Estimated Number of Respondents:* 10,235. *Frequency of Response:* Once per year. *Estimated Total Annual Hour Burden:* 515,901. *Estimated Total Annual Cost:* $26,007,920 includes $0 annualized capital or O&M costs. *Changes in the Estimates:* In this ICR Renewal, the effect of the TRI final rule expanding the eligibility criteria for Form A is expected to reduce the overall burden for TRI reporting overall due to increased Form A eligibility (i.e., number of Form Rs decreased and number of Form As increased, yielding a net burden decrease) with total respondent burden of Form A reporting projected at 515,284 hours. The TRI Program is proposing to add certain data elements to both reporting forms, but the addition of these data elements is estimated to be relatively small, increasing the total reporting burden for Form A reporting to 515,901 hours. *Proposed Changes from the Last Approval:* EPA proposes to make the following changes to the TRI Form A Certification Statement:

(1)*Enhance Public Contact information (applies to Form R and A.)* EPA proposes to add a “Public Contact” field to the Form A Certification Statement so that a facility can provide the name of a person who can respond to questions from the public about the facility's Form A. This field would include the name, telephone number, and e-mail address for the public contact to make it easy to contact the individual identified. To date, some public contact information has been collected on Form R, but not on Form A.

(2)*Add boxes for entering revision codes (applies to Form R and Form A.)* The TRI Program currently receives many form revisions each year, but does not currently collect information on the reasons for the revisions. The new revision codes will allow both the public and the TRI Program staff to better understand why a facility resubmitted a form. In addition, by analyzing the reasons for revisions, the TRI Program may be better able to address recurring reporting issues or problems that facilities may be facing, ultimately reducing errors and saving time for both the Agency and the reporting facilities. Therefore, facilities will now report up to two codes (listed and defined in the RFIs) indicating the main reason(s) that a form is being revised.

(3)*Provide a field for withdrawing a form; and add boxes for entering withdrawal codes (applies to Form R and Form A.)* Currently, a facility that wishes to withdraw a previously submitted form must submit its request, including the rationale, as a hard copy memorandum to the TRI Data Processing Center. Adding a “Withdrawal” field and associated code boxes for reasons for withdrawal to Form A will

(1)streamline the withdrawal process for facilities,

(2)make it easier for EPA to automate the withdrawal process, and

(3)improve the Agency's ability to analyze the reasons for withdrawals. Notes: 1. EPA also proposed other changes (72 FR 37762; July 11, 2007) but has since concluded those changes are not necessary. 2. Baseline adjustments were made to “Number of Responses,” “Number of Respondents” and “Burden Hours” to reflect the most recent conditions of RY2005. In the last ICR, RY2002 was the base year; in the last OMB Action, RY2004 was the base year. Over this period of time, the total number of Form A submissions declined. 3. An additional change was made to the Form A “Number of Responses” and “Number of Respondents” to adjust for previously overstated counts. Dated: December 11, 2007. Sara Hisel-McCoy, Director, Collection Strategies Division. [FR Doc. E7-24372 Filed 12-14-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [FRL-8507-7] Clean Water Act Section 303(d): Availability of 86 Total Maximum Daily Loads (TMDLs) in Arkansas AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of availability. SUMMARY: This notice announces the availability of the administrative record file for comment on 86 TMDLs and the calculations for these TMDLs prepared by EPA Region 6 for waters listed in the state of Arkansas under section 303(d) of the Clean Water Act (CWA). Several of these TMDLs available for notice, are being completed in response to the lawsuit styled *Sierra Club, et al.* v. *Browner, et al.* , No. LR-C-99-114. DATES: Comments must be submitted in writing to EPA on or before January 16, 2008. ADDRESSES: Comments on the 86 TMDLs should be sent to Ms. Diane Smith, Environmental Protection Specialist, Water Quality Protection Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, TX 75202-2733, facsimile

(214)665-7373, or e-mail: *smith.diane@epa.gov.* For further information, contact Diane Smith at

(214)665-2145. Documents from the administrative record file for these TMDLs are available for public inspection at this address as well. Documents from the administrative record file may be viewed at *http://www.epa.gov/region6/6wq/npdes/tmdl/index.htm,* or obtained by calling

(214)665-2145 or writing Ms. Smith at the above address. Please contact Ms. Smith to schedule an inspection. FOR FURTHER INFORMATION CONTACT: Diane Smith at

(214)665-2145. SUPPLEMENTARY INFORMATION: In 1999, five Arkansas environmental groups, the Sierra Club, Federation of Fly Fishers, Crooked Creek Coalition, Arkansas Fly Fishers, and Save our Streams (plaintiffs), filed a lawsuit in Federal Court against the EPA, styled *Sierra Club, et al.* v. *Browner, et al.* , No. LR-C-99-114. Among other claims, plaintiffs alleged that EPA failed to establish Arkansas TMDLs in a timely manner. EPA proposes these TMDLs pursuant to a consent decree entered in this lawsuit. EPA Seeks Comments on 86 TMDLs By this notice EPA is seeking comment on the following 86 TMDLs for waters located within the state of Arkansas: Segment-reach Waterbody name Pollutant 08040102-016 Caddo River Copper and Zinc. 08040102-018 Caddo River Copper and Zinc. 08040102-019 Caddo River Copper and Zinc. 08040102-023 South Fork Caddo R. Copper and Zinc. 08040201-005 Ouachita River Copper and Zinc. 08040201-006 Smackover Creek Copper and Zinc. 08040201-007 Smackover Creek Copper and Zinc. 08040201-606 El Dorado Chemical Copper, Zinc., and Nitrate. Company Tributary. 08040202-002 Ouachita River Copper and Zinc. 08040202-004 Ouachita River Copper and Zinc. 08040202-006 Bayou de L'Outre TDS, Chloride, Sulfate., Copper, Zinc., and Lead. 08040202-007 Bayou de L'Outre TDS, Chloride, Sulfate., Copper. Zinc., and Lead. 08040202-008 Bayou de L'Outre TDS, Chloride, Sulfate., Copper, Zinc., and Lead. 08040203-007 Saline River TDS, Chloride, and Sulfate. 08040203-008 Lost River TDS, Chloride, and Sulfate. 08040203-009 Saline River TDS, Chloride, and Sulfate. 08040203-010 Saline River TDS, Chloride, and Sulfate. 08040203-904 Big Creek Lead., Siltation/Turbidity. 08040204-006 Saline River TDS, Chloride, and Sulfate. 08040205-001 Bayou Bartholomew TDS, Chloride, and Sulfate. 08040205-002 Bayou Bartholomew TDS, Chloride, and Sulfate. 08040205-007 Cutoff Creek Turbidity. 08040205-012U Bayou Bartholomew TDS, Chloride, and Sulfate. 08040205-013 Bayou Bartholomew TDS, Chloride, and Sulfate. 08040206-015 Big Cornie Creek Sulfate. and Zinc. 08040206-016 Little Cornie Creek Sulfate. and Zinc. 08040206-716 Walker Branch Sulfate. and Zinc. 08040206-816 Little Cornie Creek Sulfate. and Zinc. 08040206-916 Walker Branch Sulfate. and Zinc. 08020203-007 Blackfish Bayou Siltation/Turbidity. 08020203-005 Blackfish Bayou Siltation/Turbidity. 08020203-003 Blackfish Bayou Siltation/Turbidity. 08040101-048 Prairie Creek Siltation/Turbidity. 08040201-001U Moro Creek Siltation/Turbidity. 08040201-001L Moro Creek Siltation/Turbidity. 08040204-005 Big Creek Siltation/Turbidity. EPA requests that the public provide to EPA any water quality related data and information that may be relevant to the calculations for these 86 TMDLs. EPA will review all data and information submitted during the public comment period and revise the TMDLs and determinations where appropriate. EPA will then forward the TMDLs to the Arkansas Department of Environmental Quality (ADEQ). The ADEQ will incorporate the TMDLs into its current water quality management plan. Dated: December 10, 2007. Miguel I. Flores, Director, Water Quality Protection Division, EPA Region 6. [FR Doc. E7-24380 Filed 12-14-07; 8:45 am] BILLING CODE 6560-50-P FEDERAL ELECTION COMMISSION [Notice 2007-25] Filing Dates for the Illinois Special Election in the 14th Congressional District AGENCY: Federal Election Commission. ACTION: Notice of filing dates for special election. SUMMARY: Illinois has scheduled elections on February 5, 2008, and March 8, 2008, to fill the U.S. House of Representatives seat in the Fourteenth Congressional District vacated by Representative J. Dennis Hastert. Committees required to file reports in connection with the Special Primary Election on February 5, 2008, shall file a 12-day Pre-Primary Report. Committees required to file reports in connection with both the Special Primary and Special General Election on March 8, 2008, shall file a 12-day Pre-Primary Report, a 12-day Pre-General Report, and a 30-day Post-General Report. FOR FURTHER INFORMATION CONTACT: Mr. Kevin R. Salley, Information Division, 999 E Street, NW., Washington, DC 20463; Telephone:

(202)694-1100; Toll Free

(800)424-9530. SUPPLEMENTARY INFORMATION: Principal Campaign Committees All principal campaign committees of candidates who participate in the Illinois Special Primary and Special General Elections shall file a 12-day Pre-Primary Report on January 24, 2008; a 12-day Pre-General Report on February 25, 2008; and a 30-day Post-General Report on April 7, 2008. (See chart below for the closing date for each report). All principal campaign committees of candidates participating *only* in the Special Primary Election shall file a 12-day Pre-Primary Report on January 24, 2008. (See chart below for the closing date for each report). Unauthorized Committees (PACs and Party Committees) Political committees filing on a quarterly basis in 2008 are subject to special election reporting if they make previously undisclosed contributions or expenditures in connection with the Illinois Special Primary or Special General Elections by the close of books for the applicable report(s). (See chart below for the closing date for each report). Since disclosing financial activity from two different calendar years on one report would conflict with the calendar year aggregation requirements stated in the Commission's disclosure rules, unauthorized committees that trigger the filing of the Pre-Primary Report will be required to file this report on two separate forms. One form to cover 2007 activity, labeled as the Year-End Report; and the other form to cover only 2008 activity, labeled as the Pre-Primary Report. Both forms must be filed by January 24, 2008. Committees filing monthly that support candidates in the Illinois Special Primary or Special General Election should continue to file according to the monthly reporting schedule. Additional disclosure information in connection with the Illinois Special Election may be found on the FEC Web site at *http://www.fec.gov/info/report_dates.shtml* . Report Close of books 1 Reg./Cert. & overnight mailing deadline Filing deadline Calendar of Reporting Dates for Illinois Special Election Committees Involved in Only the Special Primary (02/05/08), Must File Year-End —Waived— Pre-Primary 01/16/08 01/21/08 01/24/08 April Quarterly 03/31/08 04/15/08 04/15/08 Committees Involved in Both the Special Primary (02/05/08) and Special General (03/08/08), Must File: Year-End —Waived— Pre-Primary 01/16/08 01/21/08 01/24/08 Pre-General 02/17/08 02/22/08 02/25/08 Post-General 03/31/08 04/07/08 04/07/08 April Quarterly —Waived— July Quarterly 06/30/08 07/15/08 07/15/08 Committees Involved in Only the Special General (03/08/08), Must File Pre-General 02/17/08 02/22/08 02/25/08 Post-General 03/31/08 04/07/08 04/07/08 April Quarterly —Waived— July Quarterly 06/30/08 07/15/08 07/15/08 1 The period begins with the close of books of the last report filed by the committee. If the committee has filed no previous reports, the period begins with the date of the committee's first activity. Dated: December 11, 2007. Robert D. Lenhard, Chairman, Federal Election Commission. [FR Doc. E7-24296 Filed 12-14-07; 8:45 am] BILLING CODE 6715-01-P FEDERAL RESERVE SYSTEM Formations of, Acquisitions by, and Mergers of Bank Holding Companies The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 *et seq.* ) (BHC Act), Regulation Y (12 CFR Part 225), and all other applicable statutes and regulations to become a bank holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a bank or bank holding company and all of the banks and nonbanking companies owned by the bank holding company, including the companies listed below. The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at *www.ffiec.gov/nic/* . Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than January 11, 2008. **A. Federal Reserve Bank of Atlanta** (David Tatum, Vice President) 1000 Peachtree Street, N.E., Atlanta, Georgia 30309: *1. Independent Bancshares, Inc. Employee Stock Ownership Plan* ; to acquire 26.12 percent of the voting shares of Independent Bancshares, Inc., and thereby indirectly acquire voting shares of Community Spirit Bank, all of Red Bay, Alabama, and Spirit Bancshares, Inc., and Spirit Bank, both of Belmont, Mississippi. **B. Federal Reserve Bank of St. Louis** (Glenda Wilson, Community Affairs Officer) 411 Locust Street, St. Louis, Missouri 63166-2034: *1. Carroll Financial Services, Inc.* , Huntingdon, Tennessee; to acquire 100 percent of the voting shares of Bradford Bancshares, Inc., and thereby indirectly acquire voting shares of The Bank of Bradford, both of Bradford, Tennessee. *2. First Banks, Inc.* , St. Louis, Missouri; to acquire an additional 1.21 percent, for a total of 24.99 percent, of the voting shares of Community West Bancshares, and thereby indirectly acquire additional voting shares of Community West Bank, National Association, both of Goleta, California. **C. Federal Reserve Bank of Kansas City** (Todd Offenbacker, Assistant Vice President) 925 Grand Avenue, Kansas City, Missouri 64198-0001: *1. Central Financial Corporation* , Hutchinson, Kansas; to retain 6.04 percent of the voting shares of Valley Capital Bank, N.A., Mesa, Arizona. Board of Governors of the Federal Reserve System, December 12, 2007. Robert deV. Frierson, Deputy Secretary of the Board. [FR Doc. E7-24314 Filed 12-14-07; 8:45 am] BILLING CODE 6210-01-S GENERAL SERVICES ADMINISTRATION [PBS-N02] Notice of Availability of the Draft Environmental Assessment and Wetland Involvement for the Transformation of Facilities and Infrastructure for the Non-Nuclear Production Activities Conducted at the National Nuclear Security Administration's Kansas City Plant at Kansas City, MO AGENCIES: General Services Administration (GSA). ACTION: Correction. SUMMARY: GSA published a notice in the **Federal Register** at 72 FR 69690 on Monday, December 10, 2007, concerning the National Nuclear Security Administration's Kansas City Plant at Kansas City, MO. The document contained an incorrect state abbreviation and date format. DATES: December 17, 2007. FOR FURTHER INFORMATION CONTACT: Ms. Diedra Wingate at

(202)501-4755, GSA, Regulatory Secretariat. Corrections In the notice document FR Doc. E7-23843 on page 69690 make the following corrections: In the first column, the last line of the notice title “Kansas City, MI” should read “Kansas City, MO”. In the second column, under the heading DATES , in the third line, “Monday, January 14th”, should read “Monday, January 14, 2008”. Diedra Wingate, Regulatory Secretariat. [FR Doc. E7-24354 Filed 12-14-07; 8:45 am] BILLING CODE 6820-EP-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Expert Meeting on Disease Management Outcomes Measurement AGENCY: Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation. ACTION: Notice of meeting. SUMMARY: This notice announces the date and location of the Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation (HHS/ASPE) Expert Meeting on Disease Management Outcomes Measurement. The objective of the meeting is to convene a panel of experts from government, academia, and private industry to discuss measurement of the impact of disease management on health outcomes and costs of care, with a focus on potential for public sector programs. DATES: Wednesday, January 16, 2008, from 9 a.m. to 5 p.m. Eastern Time. ADDRESSES: The Expert Meeting will be held at 1200 South Hayes Street, Room 4204, Arlington, VA 22202-5050. Telephone:

(703)413-1100. Registration procedures are described in the SUPPLEMENTARY INFORMATION section below. FOR FURTHER INFORMATION CONTACT: Adelle Simmons, Office of the Assistant Secretary for Planning and Evaluation, 200 Independence Avenue, SW., Washington, DC 20201. Telephone:

(202)690-5924. SUPPLEMENTARY INFORMATION: I. Background In the face of increasing health care costs, evidence of the need for system-wide health care quality improvement, and an aging population, disease management seems an intuitively appealing way to improve the coordination and quality of care, and ultimately improve health outcomes. In broad terms, disease management refers to a system of coordinated health care interventions and communications to help patients address chronic health conditions. Commercial health plans and large employers are embracing this strategy, and public purchasers of health care services including the Centers for Medicare and Medicaid Services

(CMS)have implemented demonstration programs to evaluate disease management for certain conditions. Questions about the effectiveness of disease management remain, in part, because the evaluation methods of vendors of large, population-based programs often lack scientific validity. Conversely, vendors often argue that scientifically credible approaches, like a randomized controlled experiment that the Medicare Health Support pilot uses, are not feasible for routine operation. Thus, the lack of universally accepted yet feasible evaluation methods are a major obstacle to adopting and improving disease management, because potential purchasers of such programs find it hard to identify the best program design and to monitor its success. A primary goal of this meeting is to consider the variety of disease management programs and identify strategies to improve the assessment of their impact on individuals with multiple chronic conditions. II. Registration The meeting is open to the public, and pre-registration is encouraged. Seating capacity is limited, so registration will be accepted on a first-come, first-served basis. Registration can be completed by sending an e-mail message to Ms. Emily Taylor of the RAND Corporation at *etaylor@rand.org* (The RAND Corporation is the Contractor to HHS/ASPE to provide logistical support for the Expert Meeting.) To register by telephone, contact Ms. Taylor at

(703)413-1100 ext. 5793. The following information must be provided when registering: Name, Company/Organization, and address. A RAND Corporation staff member will confirm registrations by mail, e-mail, or fax. Note: In the event that the meeting must be canceled due to inclement weather, the meeting will be held at a later date, and registrants will be notified by RAND. III. Special Accommodations Individuals who are hearing- or visually-impaired and have special requirements or a condition that requires special assistance must request accommodation when registering for the meeting in order to ensure that accommodations will be made. Dated: December 12, 2007. Mary M. McGeein, Principal Deputy Assistant Secretary for Planning and Evaluation, Department of Health and Human Services. [FR Doc. 07-6057 Filed 12-14-07; 8:45 am]

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