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Code · REGISTER · 2008-01-02 · Agriculture Agriculture Department See Food and Nutrition Service RULES Debt Management, 1-17 E7-25388 Centers Centers for Disease Control and Prevention NOTICES Meetings: Disease, Disability, and Inj · Unknown

Unknown. Final Rule

152,212 words·~692 min read·/register/2008/01/02/07-6255

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

--- schema: federal-register doc_type: fedreg source_file: FR-2008-01-02.xml --- 73 1 Wednesday, January 2, 2008 Contents Agriculture Agriculture Department See Food and Nutrition Service RULES Debt Management, 1-17 E7-25388 Centers Centers for Disease Control and Prevention NOTICES Meetings: Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 190-191 E7-25544 Mine Safety and Health Research Advisory Committee, 191 E7-25509 Coast Guard Coast Guard RULES Drawbridge Operation Regulation:
Milhomme Bayou, Stephensville, LA, 41-43 E7-25495 Ports and Waterways Safety: Kahului Harbor, Maui, HI; Security Zone, 43-48 E7-25496 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 201-203 E7-25491 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration See National Telecommunications and Information Administration Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 187-189 E7-25463 Defense Defense Department NOTICES Environmental Statements; Notice of Intent: Power Upgrades Project Within the Fort Meade Complex, MD, 172-173 E7-25451 Meetings: Defense Business Board, 173 E7-25452 Defense Science Board, 173-174 E7-25469 E7-25470 Drug Drug Enforcement Administration NOTICES Registration Revocation: Medicine Shoppe-Jonesborough, 364-388 E7-25342 Education Education Department NOTICES Privacy Act; Systems of Records, 174-179 E7-25510 E7-25520 Energy Energy Department See Energy Efficiency and Renewable Energy Office See Federal Energy Regulatory Commission Energy Energy Efficiency and Renewable Energy Office NOTICES Energy Conservation Program for Consumer Products:
Petition for Waiver from Sanyo Fisher Company, etc., 179-186 E7-25453 EPA Environmental Protection Agency RULES Air Quality Implementation Plans; Approval and Promulgation; Various States: California, 48-51 E7-25103 National Emission Standards for Hazardous Air Pollutants for Iron and Steel Foundries Area Sources, 226-265 E7-24836 Pesticide Programs: Pesticide Tolerance Crop Grouping Program; Technical Amendment, 51-52 E7-25280 Trifloxystrobin; Pesticide Tolerance, 52-57 E7-25396 Regulation of Oil-Bearing Hazardous Secondary Materials from the Petroleum Refining Industry, etc., 57-72 E7-25240 PROPOSED RULES Air Quality Implementation Plans;
Approval and Promulgation; Various States: California, 125-126 E7-25100 NOTICES Pesticide Programs: Endosulfan; Updated Risk Assessment, 186-187 E7-25277 FAA Federal Aviation Administration RULES Airworthiness Directives: Bell Helicopter Textron Canada Model 430 Helicopters, 29-32 E7-25389 Airworthiness Standards: Special Conditions— AmSafe Aviation; Inflatable Restraints Installation; Approved Model List of Normal and Utility Category Airplanes, etc., 19-26 E7-25465 Boeing Model 787-8 Airplane;
Systems and Data Networks Security-Isolation or Protection from Unauthorized Passenger Domain Systems Access, 27-29 E7-25467 PROPOSED RULES Airworthiness Directives Boeing Model 737-600, -700, -700C, -800 and -900 Series Airplanes, 73-75 E7-25477 Airworthiness Directives: Construcciones Aeronauticas, S.A.,
(CASA)Model C-212 Airplanes, 80-84 E7-25481 General Electric Company CF6-45 and CF6-50 Series Turbofan Engines, 77-80 E7-25458 Lycoming Engines, Fuel Injected Reciprocating Engines, 87-90 E7-25456 Rolls-Royce Deutschland Ltd. & Co. KG.
(RRD)TAY 650-15 Turbofan Engines, 75-77 E7-25457 Various Transport Category Airplanes Equipped with Auxiliary Fuel Tanks Installed in Accordance with Certain Supplemental Type Certificates, 84-87 E7-25482 FCC Federal Communications Commission NOTICES Rulemaking Proceedings; Petitions Filed, Granted, Denied, etc., 187 E7-25531 FDIC Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 187-189 E7-25463 Federal Election Federal Election Commission NOTICES Privacy Act; Systems of Records, 336-361 E7-25109 Federal Energy Federal Energy Regulatory Commission RULES Standards for Business Practices: Interstate Natural Gas Pipelines and Public Utilities, 38-41 E7-25121 Federal Highway Federal Highway Administration PROPOSED RULES National Standards for Traffic Control Devices: Uniform Traffic Control Devices for Streets and Highways Manual; Revision, 268-334 E7-24863 Federal Motor Federal Motor Carrier Safety Administration NOTICES Hours of Serviceof Drivers: Dart Transit Company; Exemption Application, 221-222 E7-25468 Qualification of Drivers: Exemption Renewals; Vision, E7-25489 222-223 E7-25490 Federal Reserve Federal Reserve System NOTICES Banks and Bank Holding Companies: Change in Bank Control, 189 E7-25471 Fish Fish and Wildlife Service NOTICES Comprehensive Conservation Plan and Environmental Assessment; Notice of Intent: Crystal River National Wildlife Refuge, Citrus County, FL, 203-204 E7-25541 Food Food and Drug Administration NOTICES Organization, functions, and authority delegations: Center for Food Safety and Applied Nutrition, 191-194 07-6257 Reports and guidance documents; availability, etc.: Interactive review for medical device submissions: 510 (k)s, Original PMAs, PMAs supplements, original BLAs, and BLAs supplements, 194-196 07-6268 Labeling of nonprescription human drugs marketed without approval of the Dietary Supplement and Nonprescription Drug Consumer Protection Act; Qs & As, 196-197 07-6267 Questions and answers regarding the labeling of dietary supplements as required by the Dietary Supplement and Nonprescription Drug Consumer Protection Act, 197-200 07-6266 Food Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E7-25464 147-157 07-6255 Geological Geological Survey NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 204 07-6258 Health Health and Human Services Department See Centers for Disease Control and Prevention See Food and Drug Administration See Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 189-190 E7-25428 Research Involving Adult Individuals with Impaired Decision-Making Capacity; Request for Information and Comments, 190 E7-25460 Homeland Homeland Security Department See Coast Guard See U.S. Customs and Border Protection Industry Industry and Security Bureau RULES Export Administration regulations and Defense Priorities and Allocations System regulation; revisions and technical corrections, 32-38 E7-25423 Interior Interior Department See Fish and Wildlife Service See Geological Survey See Land Management Bureau See Minerals Management Service PROPOSED RULES National Environmental Policy Act; Implementation, 126-140 E7-25484 International International Trade Administration NOTICES Antidumping: Chlorinated Isocyanurates from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 159-161 E7-25498 Fresh Garlic from the People's Republic of China: Initiation of Antidumping Duty New Shipper Reviews, 161 E7-25499 Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation: Advance Notification of Sunset Reviews, 157-158 E7-25502 Opportunity to Request Administrative Review, 158-159 E7-25501 International International Trade Commission NOTICES Meetings: Sunshine Act, 214 E7-25461 Justice Justice Department See Drug Enforcement Administration Land Land Management Bureau NOTICES Public Land Order No. 7683, 204-205 E7-25450 Public Land Order No. 7684, 205 E7-25454 Public Land Order No. 7685, 205-206 E7-25455 Wyoming; Proposed Direct Sale of Public Land, 208-209 E7-25539 Wyoming; Proposed Reinstatement of Terminated Oil and Gas Lease, E7-25440 E7-25441 206-208 E7-25442 E7-25443 E7-25444 E7-25445 E7-25447 E7-25448 E7-25449 Minerals Minerals Management Service NOTICES Outer Continental Shelf Oil and Gas Lease Sale: Chukchi Sea, AK, 209-213 07-6226 National National Intelligence, Office of the Director PROPOSED RULES Privacy Act Regulations, 113-125 E7-25331 NOAA National Oceanic and Atmospheric Administration PROPOSED RULES Pacific Halibut Fisheries; Catch Sharing Plan, 140-146 E7-25535 NOTICES Endangered and Threatened Species: Columbia River Salmon and Steelhead; Recovery Plan, 161-166 E7-25401 Meetings: Gulf of Mexico Fishery Management Council, 166-168 E7-25475 E7-25476 New England Fishery Management Council, E7-25437 168-169 E7-25472 E7-25473 Pacific Fishery Management Council, 169-170 E7-25436 E7-25474 National Telecommunications National Telecommunications and Information Administration NOTICES Meetings: Commerce Spectrum Management Advisory Committee, 170-171 E7-25492 TV Converter Box Coupon Program, 171 E7-25494 Privacy Act; Systems of Records, 171-172 E7-25493 Nuclear Nuclear Regulatory Commission RULES List of Approved Spent Fuel Storage Casks: HI-STORM 100 Revision 4; Effective Date Confirmation, 17 E7-25439 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 214 E7-25438 National Office of the Director of National Intelligence See National Intelligence, Office of the Director Peace Peace Corps NOTICES Privacy Act; Systems of Records, 214-215 E7-25511 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Meetings: Public Awareness Programs for Pipeline Operators and Location of Line Markers; Public Workshop, 223 E7-25433 Railroad Railroad Retirement Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 215-216 E7-25429 E7-25432 SEC Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 216 E7-25434 Self-Regulatory Organizations; Proposed Rule Changes: New York Stock Exchange LLC, 216-217 E7-25446 Sentencing Sentencing Commission, United States See United States Sentencing Commission State State Department NOTICES Culturally Significant Objects Imported for Exhibition Determinations: Afghanistan: Hidden Treasures from the National Museum, Kabul, 220 E7-25519 Gustave Courbet, 220-221 E7-25517 In the Forest of Fontainebleau: Painters and Photographers from Corot to Monet, 221 E7-25518 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 200-201 E7-25386 07-6254 Surface Surface Transportation Board NOTICES Union Pacific Railroad Company - Abandonment - Carver and Scott Counties, MN, 224 E7-25348 Thrift Thrift Supervision Office RULES Technical Amendments, 17-19 E7-25000 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Motor Carrier Safety Administration See Pipeline and Hazardous Materials Safety Administration See Surface Transportation Board Treasury Treasury Department See Comptroller of the Currency See Thrift Supervision Office Customs U.S. Customs and Border Protection PROPOSED RULES Importer Security Filing and Additional Carrier Requirements, 90-113 E7-25306 U.S. Sentencing United States Sentencing Commission NOTICES Sentencing Guidelines for the U.S. Courts, 217-220 E7-25483 Separate Parts In This Issue Part II Environmental Protection Agency, 226-265 E7-24836 Part III Transportation Department, Federal Highway Administration, 268-334 E7-24863 Part IV Federal Election Commission, 336-361 E7-25109 Part V Justice Department, Drug Enforcement Administration, 364-388 E7-25342 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 73 1 Wednesday, January 2, 2008 Rules and Regulations DEPARTMENT OF AGRICULTURE Office of the Secretary 7 CFR Part 3 Debt Management AGENCY: Office of the Secretary, USDA. ACTION: Final Rule. SUMMARY: The United States Department of Agriculture
(USDA)amends its regulations that govern the management of debts owed to it by program participants and other debtors to implement the Debt Collection Improvement Act of 1996
(DCIA)and the revised Federal Claims Collection Standards. The changes will affect USDA requirements for collection and settlement of debts, including administrative offset of eligible payments, and referral to the Department of the Treasury (Treasury) for collection. DATES: This rule is effective February 1, 2008. FOR FURTHER INFORMATION CONTACT: Dale Theurer, Credit, Travel, and Grants Policy Division, Office of the Chief Financial Officer, Department of Agriculture, Mail Stop 9010, Room 3417 South, 1400 Independence Avenue, SW., Washington, DC 20250,
(202)720-1167. Persons with disabilities who require alternative means for communication (Braille, large print, audio tape, etc.) should contact the USDA Target Center at
(202)720-2600 (voice and TDD). SUPPLEMENTARY INFORMATION: Executive Order 12866 This rule is not a significant regulatory action as defined in Executive Order 12866. Regulatory Flexibility Act USDA certifies that this rule will not have a significant impact on a substantial number of small entities as defined in the Regulatory Flexibility Act, Public Law 96-354, as amended (5 U.S.C. 601 *et seq.* ). No comments from small entities were received on the proposed rule. This regulation will not impose significant costs on small entities because this regulation only impacts small entities who receive payments from USDA agencies and who are delinquent on debts owed to USDA agencies. Executive Order 12988 The rule has been reviewed in accordance with Executive Order 12988. This rule preempts State laws that are inconsistent with its provisions. Before a judicial action may be brought concerning this rule or action taken under this rule, all administrative remedies must be exhausted. Unfunded Mandates Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments or the private sector. This rule contains no Federal mandates, as defined by Title II of the UMRA, for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA. Paperwork Reduction Act USDA has determined that the provisions of the Paperwork Reduction Act of 1995, as amended, 44 U.S.C. 3501, *et seq.* , do not apply to any collections of information contained in this rule because any such collections of information are made during the conduct of administrative action taken by an agency against specific individuals or entities. 5 CFR 1320.4(a)(2). Background and Purpose On November 7, 2001, USDA published an advanced notice of proposed rulemaking (66 FR 56247) for revision of the USDA debt management regulations, 7 CFR part 3, to reflect promulgation of the revised Federal Claims Collection Standards
(FCCS)and to incorporate other USDA specific changes with respect to collection of debt by administrative offset. No comments were received on this notice. On May 30, 2003, USDA published a proposed rule to revise 7 CFR part 3. USDA received comments from four groups in response to the proposed rule: two from USDA agencies, one from a State, and one from an organization representing grassroots farm and rural advocacy organizations. Changes made to the proposed rule reflected in the final rule and responses to the comments are as follows. Section 3.1 A new paragraph
(c)is added to section 3.1 to cover two types of debts the collection of which are not subject to these regulations. The first is the collection of debts owed by USDA employees for delinquent or improper charges under their government travel card accounts. Collection of these debts is provided for by separate statutory procedures. The Travel and Transportation Reform Act provides guidelines for deduction of disposable pay from a USDA employee to satisfy a debt owed by the employee to a private contractor, in this instance the travel card contractor. However, if the employee disputes the debt, the procedures for commercial garnishment of Federal employees specified in 5 U.S.C. 5520a, as implemented at 5 CFR part 582, must be followed. The second type is collection of debts under the Food Stamp Program. One commenter, a state Department of Health and Welfare, noted the difficulties in applying these debt collection procedures to debts owed by individuals under the Food Stamp Program for overpayments. While debts owed under the Food Stamp Program are subject to collection under the DCIA, additional provisions of the Food Stamp Act govern the collection of these debts. The collection of Food Stamp Program debts owed by individual recipients is not covered by this rule and instead will be covered by the regulations at 7 CFR 273.18. However, the commenter cast its question in terms of whether the proposed regulations would apply to State agencies, while the substance of its comments noted the problems of applying these regulations to collection of debts owed by individual Food Stamp Program recipients. While the final rule is revised to reflect that it does not apply to individual Food Stamp Program recipients, it will continue to apply to States for debts otherwise owed by the States as States under the Food Stamp Program, as States are included in the definition of “debtor” in section 3.3(h). These procedures, as applicable to States, will be complementary to any specific procedures for the collection of State debts (as well as those of Food Stamp retailers) provided in the Food Stamp Act, as permitted by § 3.1(a)(2) and 3.1(b)(2). One commenter objected to the removal from 7 CFR part 3 of the debt collection procedures under the Act of December 20, 1944 (12 U.S.C. 1150, *et seq.* ) (1944 Act). As indicated in the preamble to the proposed rule, it is unlikely that collection under that Act will ever be initiated. The 1944 Act authorizes the Secretary to compromise certain debts of $1,000 or less if certain factors are not met, including that “the debtor is unable to pay said indebtedness in full and has no reasonable prospect of being able to do so” (12 U.S.C. 1150(2)). This criterion is similar to that in the FCCS provisions that allow an agency to compromise a claim of $100,000 or less: “[t]he debtor is unable to pay the full amount in a reasonable time” (31 CFR 902.2(a)(1)). Accordingly, USDA has determined that the minimum requirement of the 1944 Act will be met by application of the FCCS standards in any event and thus redundant regulations for the small debts covered by the 1944 Act are not required. The 1944 Act further authorizes the Secretary to cancel debts of less than ten dollars in certain limited circumstances. *See* 12 U.S.C. 1150. Again, USDA has determined that application of the FCCS standards for compromise of debt at 31 CFR 902.2 would cover the same circumstances as set forth in the statute. In any event, as noted in the preamble to the proposed rule, the authority to take action under the 1944 Act is reserved by the language of § 3.1(a)(2). Section 3.2 One commenter suggested that the terms “commercial debt” and “consumer debt” should be defined with respect to reporting to credit-reporting bureaus. The commenter also suggested that commercial debt reporting also should be subject to due process requirements, which is addressed below. With respect to the definitions, USDA has relied upon the Financial Management Service, Department of Treasury “Guide to the Federal Credit Bureau Program” to define “commercial debt” as a debt arising from a business activity and a “consumer debt” as a debt arising from a personal activity. For example, a loan to a farmer to obtain additional land or equipment is considered a commercial loan whereas a loan to the same farmer to purchase a personal residence would be a consumer loan. Two commenters urged USDA to use consistent deadlines and definition of “day” for purposes of calculating deadlines. The issue of consistent deadlines is addressed below, however “day” has been defined as a calendar day unless otherwise specified. One commenter noted that the Farm Service Agency
(FSA)has for many years defined a debt as “delinquent” as payments that have not been made 30 days after the due date. The commenter also noted that the preamble to the FCCS specifically provided that agencies may further define “delinquency” depending on specific agency program requirements and particular types of debt. Accordingly, the definition of “delinquent” has been amended to provide USDA agencies the flexibility to define “delinquency” as required by statute or regulation by adding the phrase “or as otherwise defined by program specific statutes or regulations” to the definition. One commenter noted that a definition of an “offset” itself had been omitted. Accordingly, a definition of “offset” has been added, which necessitated the addition of definitions for the terms “payee” and “person,” and a revision of the definition of the term “debtor.” These definitions are drawn from the Treasury offset regulation definitions at 31 CFR 285.5. One commenter suggested that a definition for “cross-servicing” be added to the regulation. “Cross-servicing” refers to the mandatory requirement in the DCIA to transfer to Treasury all debts that have been delinquent for 180 days or more so that Treasury can take action to collect the debt. It is a separate and distinct process from transfer to Treasury for collection pursuant to centralized administrative offset under Treasury Offset Program (TOP), and there are separate statutory requirements in the DCIA for transfer of delinquent debts to Treasury generally and transfer of debts for administrative offset. Treasury regulations cover the two mandatory transfer requirements in separate provisions. *See* 31 CFR 285.12 (cross-servicing) and 31 CFR 285.5 (centralized offset through TOP). USDA understands that existence of two separate Treasury transfer mechanisms is confusing but it is required by law. Since “cross-servicing” is a description of a process, USDA declines to add a definition that would be nothing more than restating the cross-servicing process as already set out in § 3.31 of the proposed rule. Section 3.11 Paragraph
(b)has been reformatted to clarify when OGC consultation should be sought in determining whether to remove an item from a demand letter. Section 3.31 Paragraph
(a)is revised to delete the words “or more” after “180 days” because the statutory requirement is that debts be transferred after 180 days. Section 3.41 Paragraph (b)(3) is revised to clarify that the authority for an agency to offset payments prior to notice and an opportunity to review applies only in the cases of non-centralized administrative offsets. Paragraph (b)(4) provided that only one chance would be given for notice and review opportunities “with respect to a particular debt.” One commenter suggested that this be revised to state “with respect to a particular delinquency” so that if a borrower became delinquent on a debt once, received the notice, and became current on payments in response, and later then became delinquent again, the borrower would receive notice and opportunity for review again for the second delinquency. The language “with respect to a particular debt” comes directly from the FCCS; therefore, USDA declines to make the recommended change. “Debt” as defined in these regulations is not synonymous with “loan.” This comment, however, does suggest the need to clarify the USDA position with respect to due process procedures for delinquencies on loans paid on an installment basis, which is done with the addition of a new language in paragraph (b)(4). With respect to loans that are repaid on an installment basis, the borrower may go in and out of being current or delinquent on the loan many times over the life of the loan. Based on its consultation with the Financial Management Service of the Department of the Treasury regarding such installment loans, USDA takes the position that, at a minimum, only one opportunity for review need be provided for the first delinquent installment payment. For credit reporting, this means that the first notice may provide that the borrower will be reported as delinquent and provide due process review rights, but once the account is set up at the credit reporting agency, then USDA in the future simply may update the status of the account as to its current or delinquent status without further notice to the borrower. For referral to TOP, the first notice may advise the borrower of referral of the delinquency, and all future delinquencies to TOP, with an opportunity for review but thereafter the borrower may be notified only that a delinquency has been referred to TOP without further opportunity for review. Any interest accrued or any installments coming due after the offset is initiated also would not require a new notice and opportunity to review. Program specific regulations may provide for more opportunities for due process review. Section 3.44 Paragraph
(d)generally is amended to reflect, in cases of centralized administrative offset, the additional warning notices required for offset of debts against recurring payments as required by 31 CFR 285.5(g)(1) and
(2)and the priorities for collecting multiple debts owed by a payee, as required by 31 CFR 285.5(f)(3). Since these changes incorporate already applicable requirements in the Treasury regulations, no further comment is required. Finally, there were a number of comments of a general nature about the proposed rule for which general modifications were made or for which the agency declined to modify the rule. Words of Authority One commenter noted that the proposed rule in many instances used the term “should” which was ambiguous as to its binding effect in contrast to the mandatory terms “shall” and “must” and the permissive term “may.” The final rule is modified accordingly to convert “should” into either mandatory or permissive terms, except where use of the term “should” is appropriate as encouraging agency action but not requiring it. Consistent Deadlines As noted above, the term “day” has been defined to be a calendar day and references to “working” days have been removed. The reference to “working” days was incorporated from the prior 7 CFR part 3, but there is no statutory or regulatory requirement for the term, therefore USDA has opted for consistent use of calendar days. Two commenters noted that in some cases, deadlines were calculated from the date of a notice or request, and in others, from date of receipt of a notice or request. One commenter in particular questioned how USDA would determine the date of receipt. Accordingly, all deadlines have been changed to reflect calculation from the date of the notice or request except where the regulations of other agencies require calculation from the date of receipt of a notice or request. This is consistent with the position taken by the Departments of Justice and Treasury which concluded in promulgating the final FCCS that calculating the date from when the notice was sent met statutory and constitutional requirements. The same two commenters also noted that there were 10, 20, 30, and 60 day deadlines used throughout the proposed rule which was confusing, and suggested that a consistent deadline should be used for simplicity. A particular objection was raised to the difference between the 30-day deadline to seek review for noncentralized offset and the 60-day deadline set for centralized offset through referral to the TOP. This difference is necessitated by the different statutory and regulatory requirements that apply to these offsets. Any debt referred to TOP for administrative offset may be collected through a variety of tools, including offset of tax refunds. The tax refund statute requires that 60 days be allowed for a debtor to seek review of a tax refund offset. *See* 31 U.S.C. 3720A. On the other hand, the FCCS and the DCIA only require that agencies provide an opportunity for a debtor to seek administrative review, an opportunity to review records related to the debt, and an opportunity to enter into a written repayment agreement prior to centralized offset, without specifying any specific time period for such. *See* 31 CFR 901.3(b)(4)(ii)(B). Further, for noncentralized offset, the offset may even be initiated in certain circumstances prior to the review. *See* 31 CFR 901.3(b)(4)(iii)(C). Without a mandatory prescribed time period for these opportunities, USDA simply incorporated the existing timelines from the current 7 CFR part 3 for these procedures. However, in light of the comment, USDA has changed the period for seeking inspection of records or proposing a repayment plan to 30 days from the date of the Notice of Intent to Collect by Administrative Offset to be consistent with the 30-day deadline for seeking administrative review of the proposed offset. However, USDA has retained the 60-day deadline for centralized offset and 30-day deadline for noncentralized offset. USDA does not see the need to extend the deadline for the internal offset of payments to its debtors to 60 days. The longer time period likely only would result in more payments being offset prior to the due process review in accordance with 31 CFR 901.3(b)(4)(iii)(C). One commenter also noted that the proposed regulation presents a debtor with the dilemma of either seeking administrative review or filing a repayment plan, or doing both simultaneously. USDA has revised the final rule to allow a debtor 15 days to file a proposed repayment plan in the event of a decision adverse to a debtor or employee under subpart F or § 3.78. Finally, USDA has retained the timelines for various actions in administrative hearings conducted under § 3.62. Those deadlines come from the existing provisions of part 3, have not proven problematic in the past, and preserve flexibility for the hearing official in conducting these information proceedings. Statute of Limitations One commenter requested that USDA clarify the application of the statute of limitations to collection by administrative offset by eliminating the qualifying language in § 3.40(e) and the reference to the Office of Personnel Management “flagging” civil service retirement and disability accounts prior to time those benefits begin. USDA declines to modify this language which is taken directly from the FCCS. Review of Reporting of Commercial Debts One commenter suggested that if agencies are going to report commercial debts to credit reporting agencies as recommended in § 3.12(e), then the pre-reporting requirements applicable to reporting of consumer debts as set forth in § 3.12 also should apply to commercial debt. These protections for consumer debt reporting are required by statute. USDA declines to apply those protections to commercial debts in the absence of any statute or regulation requiring Federal agencies to do so. Loan Servicing Timetables With respect to farm loan programs, one commenter contended that the primary purpose of the Farm Loan Program to serve as a lender of last resort and keep family farmers on the land was inconsistent with the increased general government interest in debt collection activities, and that the debt collection activities of USDA with respect to the Farm Loan Program should be secondary to that primary purpose. The commenter suggested that this did not require according complete precedence to loan making and loan servicing, but rather only coordination of debt collection with loan making and servicing activities. To that extent, the commenter suggested that the provisions of the proposed rule present certain inefficiencies in its requirements for referral of debts to Treasury and reporting of delinquent debts (§§ 3.11(b)(7) and 3.31(c)) in light of the requirement for FSA issuance of a “Notice of Availability of Loan Servicing Programs” when a borrower is 90 days past due on scheduled loan payments or FSA finds the borrower in non-monetary default, to which the borrower has 60 days to respond. The commenter noted similar inefficiencies with respect to the reporting to credit reporting agencies (where applicable) (§ 3.12(a)(1)) and the charging of a 6 percent penalty on delinquent debts. Given that successful resolution of an application for loan servicing could moot these referrals, reports, and penalties, the commenter suggests that these provisions of the proposed rule be amended to state that implementation of these provisions will occur only after resolution of all pending loan servicing applications. USDA declines to revise the rule as suggested. First, this rule is intended as a general rule for debt collection for the entire Department, not only farm loan programs. As noted in § 3.1(b)(2), USDA agencies may issue regulations to supplement these Department regulations in order to meet the specific requirements of individual programs. Second, § 3.31(b)(1) provides that referrals to Treasury for cross-servicing are not applicable to debts in litigation and foreclosure, and only legally enforceable debts may be referred to Treasury for centralized offset ( *see* § 3.41(c) and 31 CFR 285.5(d)(1)). Third, FSA farm loan debt is commercial debt, not consumer debt, so the commenter's comments on § 3.12(a)(1) are inapplicable. Finally, the up to 6 percent penalty can be avoided if borrowers take action to bring their accounts current in a timely manner, or making necessary financial arrangements to avoid becoming delinquent. Installment Loans One commenter suggested, with particular reference to § 3.16, that the proposed rule's emphasis on collection of the entirety of a debt failed to distinguish between collecting the total amount of the debt from the collection of a missed installment payment. The comment apparently assumes that use of the word “debt” in the proposed regulation equates to an entire loan held by a borrower. As the definitions make clear, the term “debt” only refers to amounts determined to be due the United States, e.g., the amount of any given installment payment or payments due on a loan or loans at a given time, not the entire amount of a loan or loans. Further, the proposed regulation also covers debts owed USDA other than debts arising under loans, for example, civil penalties owed for program violations, disallowed costs under grants, etc. Accordingly, USDA declines to make the commenter's suggested change to the proposed rule to specify “the debt or missed installment payment.” 3.16(c)—Additional Security One commenter noted that most farm program loan debts already are secured, and thus no extra security would be needed to assure the government of adequate protection. Accordingly, the commenter recommended that the regulation should include guidance with respect to the types of cases in which taking additional security would be appropriate. If a debt already is secured, then additional security would not be warranted. However, USDA declines to add further guidance as to when security should be obtained for unsecured deferred payments under an installment repayment plan in order to afford agencies maximum flexibility to require, or not require, such security in appropriate cases. Review of Rejection of Repayment Plan One commenter stated that the rejection by the agency of a repayment plan offered under § 3.42(b) seems to be a “denial” constituting an adverse agency decision appealable to the National Appeals Division (NAD), and that this should be stated in the final rule. USDA disagrees with this comment. An offer of a repayment plan is an offer to the agency which the agency is not required to accept; it is not a request for a decision of the agency under agency program statutes and regulations that the agency has denied. Further, § 3.42(a) requires that agency decisions with respect to inspection or copying of records be consistent with 7 CFR part 1, subpart A, decisions under which expressly are not appealable to NAD. *See* 7 CFR 11.1 (definition of “participant”). Exempt Farm Program Payments One commenter requested that the Secretary of Agriculture exempt all farm disaster payments from both referral to Treasury for cross-servicing and administrative offset, and that the final rule include a provision recognizing the authority of the Secretary of Agriculture to exempt other payments from administrative offset. The commenter misinterprets the DCIA and fails to understand that offset and cross-servicing are two distinct processes. The Secretary of Agriculture has no authority to exempt debts from the statutory requirements for referral for cross-servicing or administrative offset or to exempt certain payments from offset. Only the Secretary of the Treasury has the authority to exempt certain payments from offset if offset would “tend to interfere substantially with or defeat the purposes of the payment certifying agency's program.” 7 U.S.C. 3716(c)(3). The Secretary of the Treasury exempts classes of payments for programs upon request by a payment agency only if the standards set by Treasury for such exemptions are met. *See* 31 CFR 285.5(e)(7). This trumps the current USDA debt collection regulations that allow USDA to make that determination. *See* 7 CFR 3.23(b)(3) (2005). Similarly, the Secretary of the Treasury may exempt any class of debt from referral for cross-servicing upon request of an executive agency (31 U.S.C. 3711(g)(2)(B)) in accordance with the criteria specified in 31 CFR 285.12(d)(5)). List of Subjects in 7 CFR Part 3 Administrative practice and procedure, Agriculture, Claims, Debts, Garnishment of wages, Government employee, Hearing and appeal procedures, Pay Administration, Salaries, Wages. For the reasons stated in the preamble, USDA amends 7 CFR part 3 as follows: PART 3—DEBT MANAGEMENT 1. The authority citation for 7 CFR part 3 is revised to read as follows: Authority: 5 U.S.C. 301; 31 U.S.C. 3701, 3711, 3716-18, 3720B; 31 CFR parts 285 and 901-904. 2. Subpart E is redesignated as subpart I. 3. Subparts A through D are revised, and subparts E through H are added, to read as follows: PART 3—DEBT MANAGEMENT Subpart A—General Sec. 3.1 Purpose and scope. 3.2 Authority. 3.3 Definitions. 3.4 Delegations of authority. Subpart B—Standards for the Administrative Collection and Compromise of Claims 3.10 Aggressive agency collection activity. 3.11 Demand for payment. 3.12 Reporting of consumer debts. 3.13 Contracting with private collection contractors and with entities that locate and recover unclaimed assets. [Reserved] 3.14 Suspension or revocation of eligibility for loans and loan guarantees, licenses, permits, or privileges. 3.15 Liquidation of collateral. 3.16 Collection in installments. 3.17 Interest, penalties, and administrative costs. 3.18 Use and disclosure of mailing addresses. 3.19 Standards for the compromise of claims. 3.20 Standards for suspending or terminating collection activities. 3.21 Referrals of Debts to Justice. Subpart C—Referral of Debts to Treasury 3.30 General requirements. 3.31 Mandatory referral for cross-servicing. 3.32 Discretionary referral for cross-servicing. 3.33 Required certification. 3.34 Fees. Subpart D—Administrative Offset 3.40 Scope. 3.41 Procedures for notification of intent to collect by administrative offset. 3.42 Debtor rights to inspect or copy records, submit repayment proposals, or request administrative review. 3.43 Non-centralized administrative offset. 3.44 Centralized administrative offset. 3.45 USDA payment authorizing agency offset of pro rata share of payments due entity in which debtor participates. 3.46 Offset against tax refunds. 3.47 Offset against amounts payable from Civil Service Retirement and Disability Fund. Subpart E—Administrative Wage Garnishment 3.50 Purpose. 3.51 Scope. 3.52 Definitions. 3.53 Procedures. Subpart F—Administrative Reviews for Administrative Offset, Administrative Wage Garnishment, and Disclosure to Credit Reporting Agencies 3.60 Applicability. 3.61 Presiding employee. 3.62 Procedures. Subpart G—Federal Salary Offset 3.70 Scope. 3.71 Definitions. 3.72 Coordinating offset with another Federal agency. 3.73 Determination of indebtedness. 3.74 Notice requirements before offset. 3.75 Request for a hearing. 3.76 Result if employee fails to meet deadlines. 3.77 Hearing. 3.78 Written decision following a hearing. 3.79 Review of USDA records related to the debt. 3.80 Written agreement to repay debts as alternative to salary offset. 3.81 Procedures for salary offset: when deductions may begin. 3.82 Procedures for salary offset: types of collection. 3.83 Procedures for salary offset: methods of collection. 3.84 Procedures for salary offset: imposition of interest, penalties, and administrative costs. 3.85 Non-waiver of rights. 3.86 Refunds. 3.87 Agency regulations. Subpart H—Cooperation with the Internal Revenue Service 3.90 Reporting discharged debts to the Internal Revenue Service. Subpart I—Adjusted Civil Monetary Penalties 3.91 Adjusted civil monetary penalties. Authority: 5 U.S.C. 301; 31 U.S.C. 3701, 3711, 3716-18, 3720B; 31 CFR parts 285 and 901-904. Subpart A—General § 3.1 Purpose and scope.
(a)*In general* .
(1)The regulations in this part prescribe standards and procedures for use by USDA agencies in the collection, compromise, suspension, or termination of debts owed to the United States.
(2)The regulations in this part apply to all debts of the United States subject to collection by USDA agencies, except as otherwise specified in this part or by statute.
(3)The regulations in this part do not preclude the Secretary from collection, compromise, suspension, or termination of debts as otherwise authorized by law. In such cases the laws and implementing regulations that are specifically applicable to claims collection activities of a particular agency generally shall take precedence over this part.
(b)*Agency specific regulations.*
(1)The regulations of this part shall apply to the Commodity Credit Corporation to the extent specified in 7 CFR part 1403.
(2)USDA agencies may issue regulations to supplement this part in order to meet the specific requirements of individual programs.
(c)*Inapplicability.* The regulations of this part shall not apply to:
(1)Collection of debts owed government travel card contractors by USDA employees;
(2)Collection of debts owed by individual Food Stamp Program recipients for whom debt collection procedures are provided under 7 CFR 273.18. § 3.2 Authority. The regulations in this part are issued under the Debt Collection Act of 1982, as amended by the Debt Collection Improvement Act of 1996
(DCIA)(31 U.S.C. 3701 et seq.) and the Federal Claims Collection Standards issued pursuant to the DCIA by Treasury and Justice (31 CFR parts 901-904) that prescribe government-wide standards for administrative collection, compromise, suspension, or termination of agency collection action, disclosure of debt information to credit reporting agencies, referral of claims to private collection contractors for resolution, and referral to Justice for litigation to collect debts owed the government. The regulations under this part also are issued under Treasury regulations implementing DCIA (31 CFR part 285) and related statutes and regulations governing the offset of Federal salaries (5 U.S.C. 5512 and 5514; 5 CFR part 550, subpart K) and administrative offset of tax refunds (31 U.S.C. 3720A). § 3.3 Definitions. For the purpose of this part, except as where otherwise specifically provided, the term or terms: *Agency* means a subagency, office, or corporation within USDA subject to the authority or general supervision of the Secretary. *Centralized administrative offset* means referral of a debt to the Treasury Offset Program
(TOP)for offset of payments made to a debtor by Federal agencies other than USDA. *Claim* and *debt* are synonymous and interchangeable, and refer to an amount of money, funds, or property that has been determined by an agency official to be due the United States from any person, organization, or entity, except another Federal agency. *Commercial debt* means a debt arising out of a business activity. *Consumer debt* means a debt arising out of a personal activity. *Contracting officer* has the same meaning as in 41 U.S.C. 601. *Credit reporting agencies* (also known as *credit bureaus* ) means major consumer credit reporting agencies that have signed agreements with agencies to receive and integrate credit information
(data)from voluntary subscribers (Federal agencies and private sector entities) into their respective databases for the purpose of generating credit reports for sale to purchasers of credit data. *Creditor agency* means a Federal agency or USDA agency to which a debtor owes a debt, including a debt collection center when acting on behalf of a creditor agency in matters pertaining to collection of the debt. *Day* means calendar day unless otherwise specified. *Debt collection center* means Treasury or other government agency or division, designated by the Secretary of the Treasury with authority to collect debt on behalf of creditor agencies in accordance with 31 U.S.C. 3711(g). *Debtor* means a person who owes a delinquent, nontax debt to the United States. *Delinquent* means a debt that has not been paid by the date specified in the agency's initial written demand for payment or applicable agreement or instrument (including a post-delinquency payment agreement), unless other satisfactory payment arrangements have been made, or as otherwise defined by program specific statutes or regulations. *Federal agency* means any other Department or entity within the Executive branch of the government. *Government* or *Federal government* means the government of the United States, unless otherwise specified. *Internal administrative offset* means a non-centralized administrative offset between a USDA creditor agency and a USDA payment authorizing agency. *Justice* means the United States Department of Justice. *NAD means the USDA National Appeals Division.* *Non-centralized administrative offset* means an agreement between a USDA creditor agency and a payment authorizing agency to offset the payments made by the payment authorizing agency to satisfy a USDA debt. An internal administrative offset is a type of non-centralized administrative offset. *Offset* means withholding funds payable by the United States to, or held by the United States for, a person to satisfy a debt owed by the payee. *OGC* means the USDA Office of the General Counsel. *Payee* means a person who is due a payment from a payment authorizing agency, and includes a person who is entitled to all or part of a payment. *Payment authorizing agency* means a Federal agency or USDA agency that is authorized to disburse payments to a recipient. *Person* means an individual, corporation, partnership, association, organization, State or local government, or any other type of public or private entity other than a Federal agency. *Recoupment* means a special method for adjusting debts arising under the same transaction or occurrence, such as obligations arising under the same contract. *Reviewing officer* means a person designated by a creditor agency as responsible for conducting a hearing or providing documentary review on the existence of the debt and the propriety of an administrative collection action. *Secretary* means the Secretary of Agriculture, unless otherwise specified. *Treasury* means the United States Department of the Treasury. *USDA* means the United States Department of Agriculture. § 3.4 Delegations of authority. The head of an agency is authorized to exercise any or all of the functions provided by this part with respect to programs for which the head of the agency has delegated responsibility, and may delegate and authorize the redelegation of any of the functions vested in the head of the agency by this part, except as otherwise provided by this part. Subpart B—Standards for the Administrative Collection and Compromise of Claims § 3.10 Aggressive agency collection activity. An agency shall aggressively collect all debts arising out of activities of, or referred or transferred for collection services to, that agency. Collection activities shall be undertaken promptly with follow-up action taken as necessary. § 3.11 Demand for payment.
(a)*Demand Letters.* Generally, debt collection is initiated with a written demand for payment to the debtor unless an applicable agreement or instrument (including a post-delinquency payment agreement) provides otherwise (such as providing USDA an immediate right to collect upon delinquency). Written demand as described in paragraph
(b)of this section shall be made promptly upon a debtor of the United States in terms that inform the debtor of the consequences of failing to cooperate with the agency to resolve the debt. The specific content, timing, and number of demand letters shall depend upon the type and amount of the debt and the debtor's response, if any, to the agency's letters or telephone calls. Where statutes or agency regulations are specific as to the requirements for demand letters, an agency shall follow its own procedures in formulating demand letters. Generally, one demand letter should suffice. In determining the timing of the demand letter(s), an agency shall give due regard to the need to refer debts promptly to Justice for litigation, in accordance with 31 CFR 904.1 or otherwise. When necessary to protect the government's interest (for example, to prevent the running of a statute of limitations), written demand may be preceded by other appropriate actions under this part, including immediate referral for litigation.
(b)*Required notices.* In demand letters, the USDA creditor agency shall inform the debtor:
(1)The nature and amount of the debt; and the facts giving rise to the debt;
(2)How interest, penalties, and administrative costs are added to the debt, the date by which payment must be made to avoid such charges, and that such assessments must be made unless excused in accordance with § 3.17;
(3)The date by which payment should be made to avoid the enforced collection actions described in paragraph (b)(6) of this section;
(4)The willingness of the creditor agency to discuss alternative payment arrangements and how the debtor may enter into a written agreement to repay the debt under terms acceptable to the agency ( *see* § 3.16);
(5)The name, address, telephone number and email address (optional) of a contact person or office within the creditor agency;
(6)The intention of the creditor agency to enforce collection if the debtor fails to pay or otherwise resolve the debt, by taking one or more of the following actions:
(i)*Offset.* Offset the debtor's USDA payments and refer the debtor's debt to TOP for offset against other Federal payments, including income tax refunds, in accordance with subpart D;
(ii)*Private collection agency.* [Reserved].
(iii)*Credit reporting agency reporting.* Report the debt to a credit reporting agency in accordance with § 3.12;
(iv)*Administrative wage garnishment.* Refer the debt to Treasury in accordance with subpart E for possible collection by garnishing the debtor's wages through administrative wage garnishment;
(v)*Litigation.* Refer the debt to Justice in accordance with § 3.21 to initiate litigation to collect the debt;
(vi)*Referral to Treasury.* Referral of the debt to Treasury for collection in accordance with subpart C of this part;
(7)That USDA debts over 180 days delinquent must be referred to Treasury for the collection actions described in paragraph (b)(6) of this section;
(8)How the debtor may inspect and copy records related to the debt;
(9)How the debtor may request a review of the USDA creditor agency's determination that the debtor owes a debt and present evidence that the debt is not delinquent or legally enforceable ( *see* subpart F of this part);
(10)[Reserved].
(11)How a debtor who is a Federal employee subject to Federal salary offset may request a hearing ( *see* subpart G of this part);
(12)How a debtor may request a waiver of the debt, if applicable;
(13)How the debtor's spouse may claim his or her share of a joint income tax refund by filing Form 8379 with the Internal Revenue Service ( *see http://www.irs.gov* );
(14)How the debtor may exercise other statutory or regulatory rights and remedies available to the debtor;
(15)That certain debtors may be ineligible for government loans, guarantees, and insurance ( *see* § 3.14);
(16)If applicable, the creditor agency's intention to suspend or revoke licenses, permits, or privileges ( *see* § 3.14); and
(17)That the debtor must advise the creditor agency of the filing of any bankruptcy proceedings of the debtor or of another person liable for the debt being collected.
(c)*Exceptions to notice requirements.* A USDA creditor agency may omit from a demand letter one or more of the provisions contained in paragraphs (b)(6) through (b)(17) if the USDA creditor agency, in consultation with OGC, determines that any provision is not legally required given the collection remedies to be applied to a particular debt.
(d)Agencies shall exercise care to ensure that demand letters are mailed or hand-delivered on the same day that they are dated. There is no prescribed format for demand letters. Agencies shall utilize demand letters and procedures that will lead to the earliest practicable determination of whether the debt can be resolved administratively or must be referred for litigation.
(e)Agencies shall respond promptly to communications from debtors, within 30 days of receipt whenever feasible, and shall advise debtors who dispute debts to furnish available evidence to support their contentions.
(f)Prior to the initiation of the demand process or at any time during or after completion of the demand process, if an agency determines to pursue, or is required to pursue, internal administrative offset, the procedures applicable to offset must be followed ( *see* subpart D). The availability of funds or money for debt satisfaction by internal administrative offset, and the agency's determination to pursue collection by internal administrative offset, shall release the agency from the necessity of further compliance with paragraphs (a), (b), and
(c)of this section.
(g)Prior to referring a debt for litigation under 31 CFR part 904, agencies shall advise each debtor determined to be liable for the debt that, unless the debt can be collected administratively, litigation may be initiated. This notification shall comply with Executive Order 12988 (3 CFR, 1996 Comp., pp. 157-163) and may be given as part of a demand letter under paragraph
(b)of this section or in a separate document. Litigation counsel for the government shall be advised that this notice has been given.
(h)When an agency learns that a bankruptcy petition has been filed with respect to a debtor, before proceeding with further collection action, the agency shall immediately seek legal advice from OGC concerning the impact of the Bankruptcy Code on any pending or contemplated collection activities. Unless the agency is advised that the automatic stay imposed at the time of filing pursuant to 11 U.S.C. 362 has been lifted or is no longer in effect, in most cases collection activity against the debtor must stop immediately. The agency should take the following steps:
(1)After seeking legal advice, a proof of claim must be filed in most cases with the bankruptcy court or the Trustee. Agencies shall refer to the provisions of 11 U.S.C. 106 relating to the consequences on sovereign immunity of filing a proof of claim.
(2)If the agency is a secured creditor, it may seek relief from the automatic stay regarding its security, subject to the provisions and requirements of 11 U.S.C. 362.
(3)Offset is stayed in most cases by the automatic stay. However, agencies may seek legal advice from OGC to determine whether their payments to the debtor and payments of other agencies available for offset may be frozen by the agency until relief from the automatic stay can be obtained from the bankruptcy court. Agencies also may seek legal advice from OGC to determine whether recoupment is available. § 3.12 Reporting of consumer debts.
(a)*Notice.* In demand letters to debtors sent in accordance with § 3.11, agencies shall inform debtors:
(1)The intent of the agency to report the delinquent consumer debt to credit reporting agencies after 60 days;
(2)The specific information to be transmitted ( *i.e.* , name, address, and taxpayer identification number, information about the debt);
(3)The actions which may be taken by the debtor to prevent the reporting ( *i.e.,* repayment in full or a repayment agreement); and
(4)The rights of the debtor to seek review of the existence of the debt in accordance with subpart F.
(b)*Disclosure.* Disclosure of delinquent consumer debts must be consistent with the requirements of 31 U.S.C. 3711(e), the Privacy Act of 1974 (5 U.S.C. 552a), the Bankruptcy Code, and 31 CFR 901.4.
(c)*Non-duplication of hearings.* When an agency has given a debtor any of the notices required by this part and an opportunity for administrative review under subpart F, the agency need not duplicate such notice and review opportunities before reporting the delinquent debt to credit bureaus.
(d)*Stay of disclosure.* Agencies shall not disclose a delinquent debt to a credit reporting agency if a debtor requests review under subpart F until a final determination is made by a reviewing official that upholds the agency intent to disclose.
(e)*Commercial debt.* The requirement of this section does not apply to commercial debts, although agencies should report commercial debts to commercial credit bureaus. § 3.13 Contracting with private collection contractors and with entities that locate and recover unclaimed assets. [Reserved.] § 3.14 Suspension or revocation of eligibility for loans and loan guarantees, licenses, permits, or privileges.
(a)Agencies are not permitted to extend financial assistance in the form of a loan, loan guarantee, or loan insurance to any person delinquent on a nontax debt owed to a Federal agency, except as otherwise authorized by law or upon waiver of application of this section by the USDA Chief Financial Officer
(CFO)or Deputy CFO. This prohibition does not apply to disaster loans. Agencies may extend credit after the delinquency has been resolved. The Secretary of the Treasury may exempt classes of debts from this prohibition and has prescribed standards defining when a “delinquency” is “resolved” for purposes of this prohibition. *See* 31 CFR 285.13 (Barring Delinquent Debtors From Obtaining Federal Loans or Loan Insurance or Guarantees).
(b)Similarly, agencies also are not permitted to extend financial assistance (either directly or indirectly) in the form of grants, loans, or loan guarantees to judgment debtors who have a judgment lien placed against their property until the judgment is satisfied, unless the agency grants a waiver in accordance with agency regulations. *See* 31 U.S.C. 3201(e).
(c)In non-bankruptcy cases, agencies seeking the collection of statutory penalties, forfeitures, or other types of claims must consider the suspension or revocation of licenses, permits, or other privileges for any inexcusable or willful failure of a debtor to pay such a debt in accordance with the agency's regulations or governing procedures. The debtor shall be advised in the agency's written demand for payment of the agency's ability to suspend or revoke licenses, permits, or privileges.
(d)Any agency making, guaranteeing, insuring, acquiring, or participating in, loans must consider suspending or disqualifying any lender, contractor, or broker from doing further business with the agency or engaging in programs sponsored by the agency if such lender, contractor, or broker fails to pay its debts to the government within a reasonable time or if such lender, contractor, or broker has been suspended, debarred, or disqualified from participation in a program or activity by another Federal agency. Failure to pay a single substantial debt, or a number of outstanding debts (including disallowed costs and overrun payments, but not including sums owed to the government under the Internal Revenue Code) owed to any Federal agency or instrumentality is grounds for nonprocurement suspension or debarment if the debt is uncontested and the debtor's legal administrative remedies for review of the debt are exhausted. *See* 7 CFR 3017.305(c)(3) and 405(a)(2).
(e)The failure of any surety to honor its obligations in accordance with 31 U.S.C. 9305 shall be reported to Treasury. Treasury will forward to all interested agencies notification that a surety's certificate of authority to do business with the government has been revoked.
(f)The suspension or revocation of licenses, permits, or privileges also may extend to USDA programs or activities that are administered by the States on behalf of the government, to the extent that they affect the government's ability to collect money or funds owed by debtors. Therefore, States that manage USDA activities, pursuant to approval from the agencies, shall ensure that appropriate steps are taken to safeguard against issuing licenses, permits, or privileges to debtors who fail to pay their debts to the government.
(e)In bankruptcy cases, before advising the debtor of an agency's intention to suspend or revoke licenses, permits, or privileges, agencies may seek legal advice from OGC concerning the impact of the Bankruptcy Code, particularly 11 U.S.C. 362 and 525, which may restrict such action. § 3.15 Liquidation of collateral.
(a)In accordance with applicable statutes and regulations, agencies may liquidate security or collateral through a sale or a nonjudicial foreclosure, and apply the proceeds to the applicable debt(s), if the debtor fails to pay the debt(s) within a reasonable time after demand and if such action is in the best interest of the United States. Collection from other sources, including liquidation of security or collateral, is not a prerequisite to requiring payment by a surety, insurer, or guarantor unless such action is expressly required by statute or contract.
(b)When an agency learns that a bankruptcy petition has been filed with respect to a debtor, the agency may seek legal advice from OGC concerning the impact of the Bankruptcy Code, including, but not limited to, 11 U.S.C. 362, to determine the applicability of the automatic stay and the procedures for obtaining relief from such stay prior to proceeding under paragraph
(a)of this section. § 3.16 Collection in installments.
(a)Whenever feasible, agencies shall collect the total amount of a debt in one lump sum. If a debtor is financially unable to pay a debt in one lump sum, agencies may accept payment in regular installments. Agencies shall obtain financial statements from debtors who represent that they are unable to pay in one lump sum and independently verify such representations whenever possible ( *see* 31 CFR 902.2(g) for methods of verification). Agencies that agree to accept payments in regular installments shall obtain a legally enforceable written agreement from the debtor that specifies all terms of the arrangement and that contains a provision accelerating the debt in the event of default.
(b)The size and frequency of installment payments shall bear a reasonable relation to the size of the debt and the debtor's ability to pay. If possible, the installment payments shall be sufficient in size and frequency to liquidate the debt in three years or less.
(c)Security for deferred payments shall be obtained in appropriate cases. Agencies may accept installment payments notwithstanding the refusal of the debtor to execute a written agreement or to give security, at the agency's option. § 3.17 Interest, penalties, and administrative costs.
(a)Except as provided in paragraphs
(g)and
(i)of this section, agencies shall charge interest, penalties, and administrative costs on debts owed to the United States pursuant to 31 U.S.C. 3717. If not included in the agency's demand notice, an agency shall mail or hand-deliver a written notice to the debtor, at the debtor's most recent address available to the agency, explaining the agency's requirements concerning these charges except where these requirements are included in a contractual or repayment agreement. These charges shall continue to accrue until the debt is paid in full or otherwise resolved through compromise, termination, or waiver of the charges.
(b)Agencies shall charge interest on debts owed the United States as follows, except as otherwise required by law:
(1)Interest shall accrue from the date of delinquency, or as otherwise provided by law.
(2)Unless otherwise established in a contract, repayment agreement, or by statute, the rate of interest charged shall be the rate established annually by the Secretary of the Treasury in accordance with 31 U.S.C. 3717. Pursuant to 31 U.S.C. 3717, an agency may charge a higher rate of interest if it reasonably determines that a higher rate is necessary to protect the rights of the United States. The agency must document the reason(s) for its determination that the higher rate is necessary.
(3)The rate of interest, as initially charged, shall remain fixed for the duration of the indebtedness. When a debtor defaults on a repayment agreement and seeks to enter into a new agreement, the agency may require payment of interest at a new rate that reflects the current value of funds to the Treasury at the time the new agreement is executed. Interest shall not be compounded, that is, interest shall not be charged on interest, penalties, or administrative costs required by this section. If, however, a debtor defaults on a previous repayment agreement, charges that accrued but were not collected under the defaulted agreement shall be added to the principal under the new repayment agreement.
(c)Agencies shall assess administrative costs incurred for processing and handling delinquent debts. The calculation of administrative costs shall be based on actual costs incurred or upon estimated costs as determined by the assessing agency.
(d)Unless otherwise established in a contract, repayment agreement, or by statute, agencies shall charge a penalty, pursuant to 31 U.S.C. 3717(e)(2), not to exceed six percent a year on the amount due on a debt that is delinquent for more than 90 days. This charge shall accrue from the date of delinquency.
(e)Agencies may increase an “administrative debt” by the cost of living adjustment in lieu of charging interest and penalties under this section. “Administrative debt” includes, but is not limited to, a debt based on fines, penalties, and overpayments, but does not include a debt based on the extension of government credit, such as those arising from loans and loan guarantees. The cost of living adjustment is the percentage by which the Consumer Price Index for the month of June of the calendar year preceding the adjustment exceeds the Consumer Price Index for the month of June of the calendar year in which the debt was determined or last adjusted. Increases to administrative debts shall be computed annually. Agencies may use this alternative only when there is a legitimate reason to do so, such as when calculating interest and penalties on a debt would be extremely difficult because of the age of the debt.
(f)When a debt is paid in partial or installment payments, amounts received by the agency shall be applied first to outstanding penalties, second to administrative charges, third to interest, and last to principal, except as otherwise required by law.
(g)Agencies shall waive the collection of interest and administrative charges imposed pursuant to this section ( *i.e.* , this does not apply to interest or administrative penalties determined by an applicable agreement or instrument such as a loan contract) on the portion of the debt that is paid within 30 days after the date on which interest began to accrue. Agencies may extend this 30-day period on a case-by-case basis. In addition, agencies may waive interest, penalties, and administrative costs charged under this section, in whole or in part, without regard to the amount of the debt, either under the criteria set forth in the Federal standards for the compromise of debts (31 CFR part 902), or if the agency determines that collection of these charges is against equity and good conscience or is not in the best interest of the United States.
(h)[Reserved]
(i)Agencies are authorized to impose interest and related charges on debts not subject to 31 U.S.C. 3717, in accordance with the common law. Agencies shall consult OGC before imposing interest and related charges under common law for any debt. § 3.18 Use and disclosure of mailing addresses.
(a)When attempting to locate a debtor in order to collect or compromise a debt under this part or parts 902-904 of title 31 or other authority, agencies may send a request to Treasury to obtain a debtor's mailing address from the records of the Internal Revenue Service (IRS).
(b)Agencies are authorized to use mailing addresses obtained under paragraph
(a)of this section to enforce collection of a delinquent debt and may disclose such mailing addresses to other agencies and to collection agencies for collection purposes. § 3.19 Standards for the compromise of claims. An agency shall follow the standards set forth in 31 CFR part 902 for the compromise of debts pursuant to 31 U.S.C. 3711 arising out of the activities of, or referred or transferred for collection services to, that agency, except where otherwise authorized or required by law. § 3.20 Standards for suspending or terminating collection activities. An agency shall follow the standards set forth in 31 CFR part 903 for the suspension or termination of collection activity pursuant to 31 U.S.C. 3711, except where otherwise authorized or required by law. § 3.21 Referrals of Debts to Justice. An agency shall promptly refer to Justice for litigation debts on which aggressive collection activity has been taken in accordance with this part, and that cannot be compromised by the agency or on which collection activity cannot be suspended or terminated in accordance with 31 CFR parts 902 and 903. Agencies shall follow the procedures set forth in 31 CFR part 904 in making such referrals. Subpart C—Referral of Debts to Treasury § 3.30 General requirements.
(a)Agencies are required by law to transfer delinquent, nontax, legally enforceable debts to Treasury for collection through cross-servicing and through centralized administrative offset. Additionally, USDA has chosen to transfer debts to Treasury for collection through administrative wage garnishment. Agencies need not make duplicate referrals to Treasury for all these purposes; a debt may be referred simultaneously for purposes of collection by cross-servicing, centralized administrative offset, and administrative wage garnishment where applicable. However, in some instances a debt exempt from collection via cross-servicing may be subject to collection by centralized administrative offset so simultaneous referrals are not always the norm. This subpart sets forth rules applicable to the transfer of debts to Treasury for collection by cross-servicing. Rules for transfer to Treasury for centralized administrative offset are set forth in subpart D, and for administrative wage garnishment in subpart E.
(b)When debts are referred or transferred to Treasury, or Treasury-designated debt collection centers under the authority of 31 U.S.C. 3711(g), Treasury shall service, collect, or compromise the debts, or Treasury will suspend or terminate the collection action, in accordance with the statutory requirements and authorities applicable to the collection of such debts. § 3.31 Mandatory referral for cross-servicing.
(a)Agencies shall transfer to Treasury any legally enforceable nontax debt in excess of $25, or combination of debts less than $25 that exceeds $25 (in the case of a debtor whose taxpayer identification number
(TIN)is unknown the applicable threshold is $100), that has or have been delinquent for a period of 180 days in accordance with 31 CFR 285.12 so that Treasury may take appropriate action on behalf of the creditor agency to collect or compromise, or to suspend or terminate collection, of the debt, including use of debt collection centers and private collection contractors to collect the debt or terminate collection action.
(b)The requirement of paragraph
(a)of this section does not apply to any debt that:
(1)Is in litigation or foreclosure ( *see* 31 CFR 385.12 (d)(2) for definition);
(2)Will be disposed of under an approved asset sale program ( *see* 31 CFR 285.12(d)(3)(i) for definition);
(3)Has been referred to a private collection contractor for a period of time acceptable to Treasury;
(4)Is at a debt collection center for a period of time acceptable to Treasury;
(5)Will be collected under internal offset procedures within three years after the debt first became delinquent;
(6)Is exempt from this requirement based on a determination by the Secretary of the Treasury that exemption for a certain class of debt is in the best interest of the United States. Federal agencies may request that the Secretary of the Treasury exempt specific classes of debts. Any such request by an agency must be sent to the Fiscal Assistant Secretary of the Treasury by the USDA CFO.
(c)A debt is considered 180 days delinquent for purposes of this section if it is 180 days past due and is legally enforceable. A debt is past due if it has not been paid by the date specified in the agency's initial written demand for payment or applicable agreement or instrument (including a post-delinquency payment agreement) unless other satisfactory payment arrangements have been made. A debt is legally enforceable if there has been a final agency determination that the debt, in the amount stated, is due and there are no legal bars to collection action. Where, for example, a debt is the subject of a pending administrative review process required by statute or regulation and collection action during the review process is prohibited, the debt is not considered legally enforceable for purposes of mandatory transfer to Treasury and is not to be transferred even if the debt is more than 180 days past due. When a final agency determination is made after an administrative appeal or review process (including administrative review under subpart F), the creditor agency must transfer such debt to Treasury, if more than 180 days delinquent, within 30 days after the date of the final decision. § 3.32 Discretionary referral for cross-servicing. Agencies shall consider referring legally enforceable nontax debts that are less than 180 days delinquent to Treasury or to Treasury-designated “debt collection centers” in accordance with 31 CFR 285.12 to accomplish efficient, cost effective debt collection if no USDA payments will be available to collect the debt through internal administrative offset under § 3.43. § 3.33 Required certification. Agencies referring delinquent debts to Treasury for collection via cross-servicing must certify, in writing, that:
(a)The debts being transferred are valid and legally enforceable;
(b)There are no legal bars to collection; and
(c)The agency has complied with all prerequisites to a particular collection action under the laws, regulations or policies applicable to the agency, unless the agency and Treasury agree that Treasury will do so on behalf of the agency. § 3.34 Fees. Federal agencies operating Treasury-designated debt collection centers are authorized to charge a fee for services rendered regarding referred or transferred debts. The fee may be paid out of amounts collected and may be added to the debt as an administrative cost. Subpart D—Administrative Offset § 3.40 Scope.
(a)This subpart sets forth the procedures to be used by agencies in collecting debts by administrative offset. The term “administrative offset” has the meaning provided in 31 U.S.C. 3701(a)(1).
(b)This section does not apply to:
(1)Debts arising under the Social Security Act, except as provided in 42 U.S.C. 404;
(2)Payments made under the Social Security Act, except as provided for in 31 U.S.C. 3716(c) ( *see* 31 CFR 285.4, Federal Benefit Offset);
(3)Debts arising under, or payments made under, the Internal Revenue Code (except for offset of tax refunds) or the tariff laws of the United States;
(4)Offsets against Federal salaries (such offsets are covered by subpart F);
(5)Offsets under 31 U.S.C. 3728 against a judgment obtained by a debtor against the United States;
(6)Offsets or recoupments under common law, State law, or Federal statutes specifically prohibiting offsets or recoupments of particular types of debts;
(7)Offsets in the course of judicial proceedings, including bankruptcy; or
(8)Intracontractual offsets to satisfy contract debts taken by a contracting officer under the Contract Disputes Act, 41 U.S.C. 601-613.
(c)Unless otherwise provided for by contract or law, debts or payments that are not subject to administrative offset under 31 U.S.C. 3716 may be collected by administrative offset under the common law or other applicable statutory authority.
(d)Supplemental provisions related to offsets by the Commodity Credit Corporation
(CCC)may be found at 7 CFR part 1403 and for the Farm Service Agency at 7 CFR part 792.
(e)Unless otherwise provided by law, administrative offset of payments under the authority of 31 U.S.C. 3716 to collect a debt may not be conducted more than 10 years after the government's right to collect the debt first accrued, unless facts material to the government's right to collect the debt were not known and could not reasonably have been known by the official or officials of the government who were charged with the responsibility to discover and collect such debts. This limitation does not apply to debts reduced to a judgment.
(f)In bankruptcy cases, agencies may seek legal advice from OGC concerning the impact of the Bankruptcy Code, particularly 11 U.S.C. 106, 362, and 553, on pending or contemplated collections by offset. § 3.41 Procedures for notification of intent to collect by administrative offset.
(a)Prior to initiation of collection by administrative offset, a creditor agency must:
(1)Send the debtor a written Notice of Intent to Collect by Administrative Offset, by mail or hand-delivery, of the type and amount of the debt, the intention of the agency to use non-centralized administrative offset (which includes a USDA internal administrative offset) to collect the debt 30 days after the date of the Notice, the name of the Federal agency or USDA agency from which the creditor agency wishes to collect in the case of a non-centralized administrative offset, the intent to refer the debt to Treasury for collection through centralized administrative offset (including possible offset of tax refunds) 60 days after the date of the Notice if the debt is not satisfied by offset within USDA or by agreement with another Federal agency, and an explanation of the debtor's rights under 31 U.S.C. 3716; and
(2)Give the debtor the opportunity:
(i)To inspect and copy agency records related to the debt;
(ii)For a review within the agency of the determination of indebtedness in accordance with subpart F; and
(iii)To make a written agreement to repay the debt.
(b)The procedures set forth in paragraph
(a)of this section are not required when:
(1)The offset is in the nature of a recoupment;
(2)The debt arises under a contract subject to the Contracts Disputes Act;
(3)In the case of a non-centralized administrative offset, the agency first learns of the existence of the amount owed by the debtor when there is insufficient time before payment would be made to the debtor/payee to allow for prior notice and an opportunity for review. When prior notice and an opportunity for review are omitted, the agency shall give the debtor such notice and an opportunity for review as soon as practicable and shall promptly refund any money ultimately found not to have been owed to the government; or
(4)The agency previously has given a debtor any of the notice and review opportunities required under this part, with respect to a particular debt ( *see,* *e.g.* , § 3.11). With respect to loans paid on an installment basis, notice and opportunity to review under this part may only be provided once for the life of the loan upon the occurrence of the first delinquent installment. Subsequently, if an agency elects this option, credit reporting agencies may be furnished periodically with updates as to the current or delinquent status of the loan account and the borrower may receive notice of referral to TOP for delinquent installments without further opportunity for review. Any interest accrued or any installments coming due after the offset is initiated also would not require a new notice and opportunity to review.
(c)The Notice of Intent to Collect by Administrative Offset shall be included as part of a demand letter issued under § 3.11 to advise the debtor of all debt collection possibilities that the agency will seek to employ. § 3.42 Debtor rights to inspect or copy records, submit repayment proposals, or request administrative review.
(a)A debtor who intends to inspect or copy agency or USDA records with respect to the debt must notify the creditor agency in writing within 30 days of the date of the Notice of Intent to Collect by Administrative Offset. In response, the agency must notify the debtor of the location, time, and any other conditions, consistent with part 1, subpart A, of this title, for inspecting and copying, and that the debtor may be liable for reasonable copying expenses. A decision by the agency under this paragraph shall not be subject to review under subpart F or by NAD under 7 CFR part 11.
(b)The debtor may, in response to the Notice of Intent to Collect by Administrative Offset, propose to the creditor agency a written agreement to repay the debt as an alternative to administrative offset. Any debtor who wishes to do this must submit a written proposal for repayment of the debt, which must be received by the creditor agency within 30 days of the date of the Notice of Intent to Collect by Administrative Offset or 15 days after the date of a decision adverse to the debtor under subpart F. In response, the creditor agency must notify the debtor in writing whether the proposed agreement is acceptable. In exercising its discretion, the creditor agency must balance the government's interest in collecting the debt against fairness to the debtor. A decision by the agency under this paragraph shall not be subject to review under subpart F or by NAD under 7 CFR part 11.
(c)A debtor must request an administrative review of the debt under subpart F within 30 days of the date of the Notice of Intent to Collect by Administrative Offset for purposes of a proposed collection by non-centralized administrative offset and within 60 days of the date of the Notice of Intent to Collect by Administrative Offset for purposes of a proposed collection by referral to Treasury for offset against other Federal payments that would include tax refunds. § 3.43 Non-centralized administrative offset.
(a)*Scope.* In cooperation with the Federal agency certifying or authorizing payments to the debtor, a creditor agency may make a request directly to a payment authorizing agency to offset a payment due a debtor to collect a delinquent debt from, for example, a Federal employee's lump sum payment upon leaving government service in order to pay an unpaid advance. Also, non-centralized administrative offsets include USDA internal administrative offsets, for example, of CCC payments to pay Farm Service Agency
(FSA)delinquent debts. Unless prohibited by law, when centralized administrative offset is not available or appropriate, past due, legally enforceable nontax delinquent debts may be collected through non-centralized administrative offset.
(b)*Effectuation of offset.* A non-centralized administrative offset may be effected 31 days after the date of the Notice of Intent to Collect by Administrative Offset, any time after the final determination in an administrative review conducted under subpart F upholds the creditor agency's decision to offset, or any time after the creditor agency notifies the debtor that its repayment proposal submitted under § 3.42(c) is not acceptable if the 30-day period for the debtor to seek review of the Notice has expired, unless the creditor agency makes a determination under § 3.41(b)(3) that immediate action to effectuate the offset is necessary.
(c)*Certification.* A payment authorizing agency may conduct a non-centralized administrative offset only after certification by a creditor agency that:
(1)The debtor has been provided notice and opportunity for review as set forth in § 3.41; and
(2)The payment authorizing agency has received written certification from the creditor agency that the debtor owes the past due, legally enforceable delinquent debt in the amount stated, and that the creditor agency has fully complied with its regulations concerning administrative offset.
(d)*Responsibilities of payment authorizing agencies.* Payment authorizing agencies shall comply with offset requests by creditor agencies to collect debts owed to the United States, unless the offset would not be in the best interests of the United States with respect to the program of the payment authorizing agency, or would otherwise be contrary to law. Appropriate use should be made of the cooperative efforts of other agencies in effecting collection by administrative offset.
(e)*Application of recovered amounts to satisfaction of debts.* When collecting multiple debts by non-centralized administrative offset, agencies shall apply the recovered amounts to those debts in accordance with the best interests of the United States, as determined by the facts and circumstances of the particular case, particularly the applicable statute of limitations. § 3.44 Centralized administrative offset.
(a)*Mandatory referral.* After the notice and review opportunity requirements of § 3.41 are met, an agency shall refer debts which are over 180 days delinquent to Treasury for collection through centralized administrative offset 61 days after the date of the Notice of Intent to Collect by Administrative Offset provided in accordance with § 3.41. If the debtor seeks review under subpart F, referral of the debt must occur within 30 days of the final decision upholding the agency decision to offset the debt if the debt is more than 180 days delinquent.
(b)*Discretionary referral.* After the notice and review opportunity requirements of § 3.41 are met, and administrative review under subpart F is not sought or is unsuccessful on the part of the debtor, an agency may refer a debt that is less than 180 days delinquent.
(c)*Procedures for referral.* Agencies shall refer debts to Treasury for collection in accordance with Treasury procedures set forth in 31 CFR part 285.5.
(d)*Payment authorizing agency responsibilities.*
(1)The names and TINs of debtors who owe debts referred to Treasury under this section shall be compared to the names and TINs on payments to be made by Federal disbursing officials. Federal disbursing officials include disbursing officials of Treasury, the Department of Defense, the United States Postal Service, other government corporations, and disbursing officials of the United States designated by Treasury. When the name and TIN of a debtor match the name and TIN of a payee and all other requirements for offset have been met, the payment authorizing agency must offset a payment to satisfy the debt.
(2)Any USDA official serving as a Federal disbursing official for purposes of effecting centralized administrative offset under this section must notify a debtor/payee in writing that an offset has occurred to satisfy, in part or in full, a past due, legally enforceable delinquent debt. The notice must include the information set forth in paragraph (d)(4) of this section.
(3)As described in 31 CFR 285.5(g)(1) and (2), any USDA official serving as a Federal disbursing official for purposes of centralized administrative offset under this section shall furnish a warning notice to a payee/debtor prior to beginning offset of recurring payments. Such warning notice shall include the information set forth in paragraph (d)(4) of this section.
(4)The notice shall include a description of the type and amount of the payment from which the offset was taken, the amount of offset that was taken, the identity of the creditor agency requesting the offset, and a contact point within the creditor agency who will respond to questions regarding the offset.
(5)The priorities for collecting multiple payments owed by a payee/debtor shall be those set forth in 31 CFR 285.5(f)(3). § 3.45 USDA payment authorizing agency offset of pro rata share of payments due entity in which debtor participates.
(a)A USDA payment authorizing agency, to satisfy either a non-centralized or centralized administrative offset under §§ 3.43 and 3.44, may offset:
(1)A debtor's pro rata share of USDA payments due any entity in which the debtor participates, either directly or indirectly, as determined by the creditor agency or the payment authorizing agency; or
(2)USDA payments due any entity that the debtor has established, or reorganized, transferred ownership of, or changed in some other manner the operation of, for the purpose of avoiding payment on the claim or debt, as determined by the creditor agency or the payment authorizing agency.
(b)Prior to exercising the authority of this section to offset any portion of a payment due an entity, the creditor agency must have provided notice to that entity in accordance with § 3.41 of its intent to offset payments to the entity in satisfaction of the debt of an individual debtor participating in that entity. § 3.46 Offset against tax refunds. USDA will take action to effect administrative offset against tax refunds due to debtors under 26 U.S.C. 6402 in accordance with the provisions of 31 U.S.C. 3720A through referral for centralized administrative offset under § 3.44. § 3.47 Offset against amounts payable from Civil Service Retirement and Disability Fund. Upon providing the Office of Personnel Management
(OPM)written certification that a debtor has been afforded the procedures provided in § 3.41, creditor agencies may request OPM to offset a debtor's anticipated or future benefit payments under the Civil Service Retirement and Disability Fund
(Fund)in accordance with regulations codified at 5 CFR 831.1801 through 831.1808. Upon receipt of such a request, OPM will identify and “flag” a debtor's account in anticipation of the time when the debtor requests, or becomes eligible to receive, payments from the Fund. This will satisfy any requirement that offset be initiated prior to the expiration of the time limitations referenced in § 3.40(e). Subpart E—Administrative Wage Garnishment § 3.50 Purpose. This subpart provides USDA procedures for use of administrative wage garnishment to garnish a debtor's disposable pay to satisfy delinquent nontax debt owed to USDA creditor agencies. § 3.51 Scope.
(a)This subpart applies to any agency that administers a program that gives rise to a delinquent nontax debt owed to the United States and to any agency that pursues recovery of such debt.
(b)This subpart shall apply notwithstanding any provision of State law.
(c)Nothing in this subpart precludes the compromise of a debt or the suspension or termination of collection action in accordance with the provisions of this part or other applicable law.
(d)The receipt of payments pursuant to this subpart does not preclude an agency from pursuing other debt collection remedies under this part. An agency may pursue such debt collection remedies separately or in conjunction with administrative wage garnishment.
(e)This subpart does not apply to the collection of delinquent nontax debt owed to the United States from the wages of Federal employees from their Federal employment. Federal pay is subject to the salary offset procedures of subpart G of this part.
(f)Nothing in this subpart requires agencies to duplicate notices or administrative proceedings required by contract or other laws or regulations, or other provisions of this part. § 3.52 Definitions. As used in this subpart the following definitions shall apply: *Disposable pay* means that part of the debtor's compensation (including, but not limited to, salary, bonuses, commissions, and vacation pay) from an employer remaining after the deduction of health insurance premiums and any amounts required by law to be withheld. For purposes of this section, “amounts required by law to be withheld” include amounts for deductions such as social security taxes and withholding taxes, but do not include any amount withheld pursuant to a court order. *Employer* means a person or entity that employs the services of others and that pays their wages or salaries. The term employer includes, but is not limited to, State and local governments, but does not include an agency of the Federal government. *Garnishment* means the process of withholding amounts from an employee's disposable pay and the paying of those amounts to a creditor in satisfaction of a withholding order. *Withholding order* means any order for withholding or garnishment of pay issued by an agency, or judicial or administrative body. For purposes of this section, the terms “wage garnishment order” and “garnishment order” have the same meaning as “withholding order.” § 3.53 Procedures.
(a)USDA has determined to pursue administrative wage garnishment of USDA debtors by referral of nontax legally enforceable debts to Treasury for issuance of garnishment orders by Treasury or its contractors.
(b)Pursuant to § 3.11, agencies must notify debtors of their intent to pursue garnishment of their disposable pay through referral of the debt to Treasury for issuance of an administrative wage garnishment order and provide debtors with the opportunity for review of the existence of the debt under subpart F within 60 days of the date of the demand letter.
(c)Upon expiration of the 60-day period for review, or upon completion of a review under subpart F that upholds the agency's determination of the debt, USDA will transfer the debt for collection through administrative wage garnishment as well as other means through cross-servicing or centralized administrative offset.
(d)If Treasury elects to pursue collection through administrative wage garnishment, Treasury, or its contractor, will notify the debtor of its intent to initiate garnishment proceedings and provide the debtor with the opportunity to inspect and copy agency records related to the debt, enter into a repayment agreement, or request a hearing as to the existence or amount of the debt or the terms of the proposed repayment schedule under the proposed garnishment order, in accordance with 31 CFR 285.11.
(e)If the debtor requests a hearing at any time, Treasury will forward the request to the USDA creditor agency to which the debt is owed, and the creditor agency will contact the Office of the CFO
(OCFO)for selection of a hearing official. The issuance of proposed garnishment orders by Treasury shall not be subject to appeal to NAD under 7 CFR part 11. Hearings will be conducted in accordance with 31 CFR 285.11(f).
(f)OCFO shall provide a copy of the hearing official's final decision to Treasury for implementation with respect to the subject garnishment order. Subpart F—Administrative Reviews for Administrative Offset, Administrative Wage Garnishment, and Disclosure to Credit Reporting Agencies § 3.60 Applicability.
(a)This section establishes consolidated administrative review procedures for debts subject to administrative offset, administrative wage garnishment, and disclosure to credit reporting agencies, under subparts D and E. A hearing or review under this section shall satisfy the required opportunity for administrative review by the agency of the determination of a debt for both administrative offset and administrative wage garnishment that is required before transfer to Treasury for collection or collection by the agency through non-centralized administrative offset.
(b)For debt collection proceedings initiated by FSA, CCC, the Rural Housing Service, the Rural Business-Cooperative Service, the Risk Management Agency, the Federal Crop Insurance Corporation, the Natural Resources Conservation Service, Rural Development, and the Rural Utilities Service (but not for programs authorized by the Rural Electrification Act of 1936 or the Rural Telephone Bank Act, 7 U.S.C. 901 *et seq.* ), unless otherwise specified, any administrative review will be conducted by NAD in accordance with 7 CFR part 11 and not the procedures of this subpart. § 3.61 Presiding employee. An agency reviewing officer may be an agency employee, or the agency may provide for reviews to be done by another agency through an interagency agreement. No agency employee may act as a reviewing officer for the consideration of collection by administrative offset in a matter for which the employee was a contracting officer or a debt management officer. § 3.62 Procedures.
(a)A debtor who receives a Notice of Intent to Collect by Administrative Offset, Notice of Disclosure to Credit Reporting Agencies, or Notice of Intent to Collect by Administrative Wage Garnishment, or more than one of the above simultaneously, may request administrative review of the agency's determination that the debt exists and the amount of the debt. Any debtor who wishes to do this must submit a written explanation of why the debtor disagrees and seeks review. The request must be received by the creditor agency within 60 days of the date of the notice in the case of a Notice of Intent to Collect by Administrative Offset that includes referral to Treasury for offset against other Federal payments including tax refunds and 30 days in the case of all other notices.
(b)In response, the creditor agency must notify the debtor in writing whether the review will be by documentary review or by hearing. An oral hearing is not necessary with respect to debt collection systems in which a determination of indebtedness rarely involves issues of credibility or veracity and the agency has determined that review of the written record is ordinarily an adequate means to correct prior mistakes. The agency shall provide the debtor with a reasonable opportunity for an oral hearing when the debtor requests reconsideration of the debt and the agency determines that the question of the indebtedness cannot be resolved by review of the documentary evidence, for example, when the validity of the debt turns on an issue of credibility or veracity. If the debtor requests a hearing, and the creditor agency decides to conduct a documentary review, the agency must notify the debtor of the reason why a hearing will not be granted. The agency must also advise the debtor of the procedures to be used in reviewing the documentary record, or of the date, location and procedures to be used if review is by a hearing.
(c)An oral hearing may, at the debtor's option, be conducted either in-person or by telephone conference. All travel expenses incurred by the debtor in connection with an in-person hearing will be borne by the debtor. All telephonic charges incurred during the hearing will be the responsibility of the agency.
(d)After the debtor requests a hearing, the hearing official shall notify the debtor of:
(1)The date and time of a telephonic hearing;
(2)The date, time, and location of an in-person oral hearing; or
(3)The deadline for the submission of evidence for a documentary review.
(e)Unless otherwise arranged by mutual agreement between the debtor and the agency, evidenced in writing, any documentary review or hearing will be conducted not less than 10 days and no more than 45 days after receipt of the request for review.
(f)Unless otherwise arranged by mutual agreement between the debtor and the agency, evidenced in writing, a documentary review or hearing will be based on agency records plus other relevant documentary evidence which may be submitted by the debtor within 10 days after the request for review is received. (g)(1) *Hearings.* Hearings will be as informal as possible, and will be conducted by a reviewing officer in a fair and expeditious manner. The reviewing officer need not use the formal rules of evidence with regard to the admissibility of evidence or the use of evidence once admitted. However, clearly irrelevant material should not be admitted, whether or not any party objects. Any party to the hearing may offer exhibits, such as copies of financial records, telephone memoranda, or agreements, provided the opposing party is notified at least five days before the hearing.
(2)*Burden of proof.*
(i)The agency will have the burden of going forward to prove the existence or amount of the debt.
(ii)Thereafter, if the debtor disputes the existence or amount of the debt, the debtor must prove by a preponderance of the evidence that no debt exists or that the amount of the debt is incorrect. In addition, the debtor may present evidence that repayment would cause a financial hardship to the debtor or that collection of the debt may not be pursued due to operation of law
(3)Witnesses must testify under oath or affirmation.
(4)Debtors may represent themselves or may be represented at their own expense by an attorney or other person.
(5)The substance of all significant matters discussed at the hearing must be recorded. No official record or transcript of the hearing need be created, but if a debtor requested that a transcript be made, it will be at the debtor's expense.
(h)In the absence of good cause shown, a debtor who fails to appear at a hearing scheduled pursuant to paragraph (f)(4) of this section will be deemed as not having timely filed a request for a hearing. (i)(1) Within no more than 30 days after the hearing or receipt of documentation for the documentary review, the reviewing officer will issue a written decision to the debtor and the agency, including the supporting rationale for the decision. The deadline for issuance of the decision may be extended by the reviewing officer for good cause for no more than 30 days.
(2)The written decision shall include:
(i)A summary of the facts presented;
(ii)The hearing official's findings, analysis and conclusions; and
(iii)Resolution of any significant procedural matter which was in dispute before or during the hearing or documentary review.
(3)The reviewing officer's decision constitutes final agency action for purposes of judicial review under the Administrative Procedure Act (5 U.S.C. 701 *et seq.* ) as to the following issues:
(i)All issues of fact relating to the basis of the debt (including the existence of the debt and the propriety of administrative offset), in cases where the debtor previously had not been afforded due process; and
(ii)The existence of the debt and the propriety of administrative offset, in cases where the debtor previously had been afforded due process as to issues of fact relating to the basis of the debt.
(j)The reviewing officer will promptly distribute copies of the decision to the USDA CFO, the agency CFO (if any), the agency debt management officer, the debtor, and the debtor's representative, if any. Subpart G—Federal Salary Offset Authority : 5 U.S.C. 5514; 5 CFR part 550, subpart K. § 3.70 Scope.
(a)The provisions of this subpart set forth USDA procedures for the collection of a Federal employee's pay by salary offset to satisfy certain valid and past due debts owed the government.
(b)These regulations apply to:
(1)Current USDA employees and employees of other agencies who owe debts to USDA; and
(2)Current USDA employees who owe debts to other agencies.
(c)These regulations do not apply to debts owed by FSA county executive directors or county office employees. Salaries of those employees are subject to administrative offset as provided in 7 CFR part 792 or part 1403.
(d)These regulations do not apply to debts or claims arising under the Internal Revenue Code of 1954 (26 U.S.C. 1 *et seq.* ); the tariff laws of the United States; or to any case where collection of a debt by salary offset is explicitly provided for or prohibited by another statute (e.g. travel advances in 5 U.S.C. 5705 or employee training expense in 5 U.S.C. 4108).
(e)These regulations identify the types of salary offset available to USDA, as well as certain rights provided to the employee, which include a written notice before deductions begin and the opportunity to petition for a hearing and to receive a written decision if a hearing is granted. The rights provided by this section do not extend to:
(1)Any adjustment to pay arising out of an employee's election of coverage or a change in coverage under a Federal benefits program requiring periodic deductions from pay, if the amount to be recovered was accumulated over four pay periods or less;
(2)A routine intra-agency adjustment of pay that is made to correct an overpayment of pay attributable to clerical or administrative errors or delays in processing pay documents, if the overpayment occurred within the four pay periods preceding the adjustment and, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and point of contact for contesting such adjustment; or
(3)Any adjustment to collect a debt amounting to $50 or less, if, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and a point of contact for contesting such adjustment.
(f)These regulations do not preclude an employee from:
(1)Requesting waiver of an erroneous overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 716;
(2)Requesting waiver of any other type of debt, if waiver is available by statute; or
(3)Questioning the amount or validity of a debt, in the manner prescribed by this part.
(g)Nothing in these regulations precludes the compromise, suspension or termination of collection actions where appropriate under USDA regulations contained elsewhere. § 3.71 Definitions. As used in this subpart the following definitions shall apply: *Agency* means an executive department or agency; a military department; the United States Postal Service; the Postal Rate Commission; the United States Senate; the United States House of Representatives; any court, court administrative office, or instrumentality in the judicial or legislative branches of the government; or a government corporation. *Debt* means:
(1)An amount owed to the United States from sources which include, but are not limited to, insured or guaranteed loans, fees, leases, rents, royalties, services, sales of real or personal property, overpayments, penalties, damages, interest, fines and forfeitures (except those arising under the Uniform Code of Military Justice).
(2)An amount owed to the United States by an employee for pecuniary losses where the employee has been determined to be liable due to his or her negligent, willful, unauthorized or illegal acts, including but not limited to:
(i)Theft, misuse, or loss of government funds;
(ii)False claims for services and travel;
(iii)Illegal, unauthorized obligations and expenditures of government appropriations;
(iv)Using or authorizing the use of government-owned or leased equipment, facilities, supplies, and services for other than official or approved purposes;
(v)Lost, stolen, damaged, or destroyed government property;
(vi)Erroneous entries on accounting records or reports; and
(vii)Deliberate failure to provide physical security and control procedures for accountable officers, if such failure is determined to be the proximate cause for a loss of government funds. *Disposable pay* means that part of current basic pay, special pay, incentive pay, retired pay, retainer pay, or in the case of an employee not entitled to basic pay, other authorized pay remaining after the deduction of any amount required by law to be withheld (other than deductions to execute garnishment orders in accordance with 5 CFR parts 581 and 582). Among the legally required deductions that must be applied first to determine disposable pay are levies pursuant to the Internal Revenue Code (title 26, United States Code) and deductions described in section 581.105(b) through
(f)of part 5 of this title. *Employee* means a current employee of an agency, including a current member of the Armed Forces or a Reserve of the Armed Forces, but does not include a FSA county executive director or county office employee. *Hearing official* means a USDA administrative law judge or some other individual not under the control of the Secretary. *Salary offset* means a reduction of a debt by offset(s) from the disposable pay of an employee without his or her consent. *Waiver* means the cancellation, remission, forgiveness, or non-recovery of a debt owed by an employee to an agency as permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 716, 5 U.S.C. 8346(b) or any other law. § 3.72 Coordinating offset with another Federal agency.
(a)*When USDA is owed the debt.* When USDA is owed a debt by an employee of another agency, the other agency shall not initiate the requested offset until USDA provides the agency with a written certification that the debtor owes USDA a debt (including the amount and basis of the debt and the due date of the payment) and that USDA has complied with these regulations.
(b)*When another agency is owed the debt.* USDA may use salary offset against one of its employees who is indebted to another agency, if requested to do so by that agency. Such a request must be accompanied by a certification by the requesting agency that the person owes the debt (including the amount and basis of the debt and the due date of the payment) and that the agency has complied with its regulations required by 5 U.S.C. 5514 and 5 CFR part 550, subpart K.
(c)*Mandatory centralized administrative offset.* Debts may be referred to Treasury under § 3.44 for collection through salary offset in accordance with 31 CFR 285.7. § 3.73 Determination of indebtedness.
(a)In determining that an employee is indebted to USDA and that 31 CFR parts 900 through 904 have been satisfied and that salary offset is appropriate, USDA will review the debt to make sure that it is valid and past due.
(b)If USDA determines that any of the requirements of paragraph
(a)of this section have not been met, no determination of indebtedness shall be made and salary offset will not proceed until USDA is assured that the requirements have been met. § 3.74 Notice requirements before offset. Except as provided in paragraph
(b)of this section, salary offset will not be made unless USDA first provides the employee with a minimum of 30 days written notice. This Notice of Intent to Offset Salary will state:
(a)That USDA has reviewed the records relating to the debt and has determined that a debt is owed, the amount of the debt, and the facts giving rise to the debt;
(b)USDA's intention to collect the debt by means of deduction from the employee's current disposable pay until the debt and all accumulated interest are paid in full;
(c)The approximate beginning date, frequency, and amount of the intended deduction (stated as a fixed dollar amount or as a percentage of pay, not to exceed 15 percent of disposable pay) and; and the intention to continue the deductions until the debt is paid in full or otherwise resolved;
(d)An explanation of USDA requirements concerning interest, penalties and administrative costs; unless such payments are waived in accordance with 31 U.S.C. 3717 and § 3.17;
(e)The employee's right to inspect and copy USDA records relating to the debt;
(f)The employee's right to enter into a written agreement with USDA for a repayment schedule differing from that proposed by USDA, so long as the terms of the repayment schedule proposed by the employee are agreeable to USDA;
(g)The employee's right to a hearing conducted by a hearing official on USDA's determination of the debt, the amount of the debt, or percentage of disposable pay to be deducted each pay period, so long as a petition is filed by the employee as prescribed by USDA;
(h)That the timely filing of a petition for hearing will stay the collection proceedings;
(i)That a final decision on the hearing will be issued at the earliest practical date, but not later than 60 days after the filing of the petition requesting the hearing, unless the employee requests, and the hearing officer grants, a delay in the proceedings;
(j)That any knowingly false or frivolous statements, representations, or evidence may subject the employee to:
(1)Disciplinary procedures appropriate under 5 U.S.C. chapter 75, 5 CFR part 752, or any other applicable statutes or regulations;
(2)Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or any other applicable statutory authority; or
(3)Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or any other applicable statutory authority;
(k)Any other rights and remedies available to the employee under statutes or regulations governing the program for which the collection is being made;
(l)That amounts paid on or deducted for the debt which are later waived or found not owed to the United States will be promptly refunded to the employee, unless there are applicable contractual or statutory provisions to the contrary;
(m)The method and time period for requesting a hearing; and
(n)The name and address of an official of USDA to whom communications must be directed. § 3.75 Request for a hearing.
(a)Except as provided in paragraph
(c)of this section, an employee must file a petition for a hearing that is received by USDA not later than 30 days from the date of the USDA notice described in § 3.74, if an employee wants a hearing concerning:
(1)The existence or amount of the debt; or
(2)USDA's proposed offset schedule (including percentage).
(b)The petition must be signed by the employee and must identify and explain with reasonable specificity and brevity the facts, evidence and witnesses which the employee believes support his or her position. If the employee objects to the percentage of disposable pay to be deducted from each check, the petition must state the objection and the reasons for it.
(c)If the employee files a petition for a hearing later than the 30 days as described in paragraph
(a)of this section, the hearing officer may accept the request if the employee can show that the delay was because of circumstances beyond his or her control or because of failure to receive notice of the filing deadline (unless the employee has actual notice of the filing deadline). § 3.76 Result if employee fails to meet deadlines. An employee will not be granted a hearing and will have his or her disposable pay offset in accordance with USDA's offset schedule if the employee:
(a)Fails to file a petition for a hearing as prescribed in § 3.75; or
(b)Is scheduled to appear and fails to appear at the hearing. § 3.77 Hearing.
(a)If an employee timely files a petition for a hearing under section 3.75, USDA shall select the time, date, and location for the hearing. (b)(1) Hearings shall be conducted by the hearing official designated in accordance with 5 CFR 550.1107; and
(2)Rules of evidence shall not be adhered to, but the hearing official shall consider all evidence that he or she determines to be relevant to the debt that is the subject of the hearing and weigh it accordingly, given all of the facts and circumstances surrounding the debt.
(c)USDA will have the burden of going forward to prove the existence of the debt.
(d)The employee requesting the hearing shall bear the ultimate burden of proof.
(e)The evidence presented by the employee must prove that no debt exists or cast sufficient doubt such that reasonable minds could differ as to the existence of the debt. § 3.78 Written decision following a hearing. Written decisions provided after a hearing will include:
(a)A statement of the facts presented at the hearing to support the nature and origin of the alleged debt and those presented to refute the debt;
(b)The hearing officer's analysis, findings, and conclusions, considering all the evidence presented and the respective burdens of the parties, in light of the hearing;
(c)The amount and validity of the alleged debt determined as a result of the hearing;
(d)The payment schedule (including percentage of disposable pay), if applicable;
(e)The determination that the amount of the debt at this hearing is the final agency action on this matter regarding the existence and amount of the debt for purposes of executing salary offset under 5 U.S.C. 5514. However, even if the hearing official determines that a debt may not be collected by salary offset, but the creditor agency finds that the debt is still valid, the creditor agency may still seek collection of the debt by other means authorized by this part; and
(f)Notice that the final determination by the hearing official regarding the existence and amount of a debt is subject to referral to Treasury under § 3.33 in the same manner as any other delinquent debt. § 3.79 Review of USDA records related to the debt.
(a)*Notification by employee.* An employee who intends to inspect or copy USDA records related to the debt must send a letter to USDA stating his or her intention. The letter must be received by USDA within 30 days of the date of the Notice of Intent to Offset Salary.
(b)*USDA response.* In response to the timely notice submitted by the debtor as described in paragraph
(a)of this section, USDA will notify the employee of the location and time when the employee may inspect and copy USDA records related to the debt. § 3.80 Written agreement to repay debts as alternative to salary offset.
(a)*Notification by employee.* The employee may propose, in response to a Notice of Intent to Offset Salary, a written agreement to repay the debt as an alternative to salary offset. Any employee who wishes to do this must submit a proposed written agreement to repay the debt that is received by USDA within 30 days of the date of the Notice of Intent to Offset Salary or 15 days after the date of a hearing decision issued under § 3.78.
(b)*USDA response.* USDA will notify the employee whether the employee's proposed written agreement for repayment is acceptable. USDA may accept a repayment agreement instead of proceeding by offset. In making this determination, USDA will balance the USDA interest in collecting the debt against hardship to the employee. If the debt is delinquent and the employee has not disputed its existence or amount, USDA will accept a repayment agreement, instead of offset, for good cause such as, if the employee is able to establish that offset would result in undue financial hardship or would be against equity and good conscience. § 3.81 Procedures for salary offset: when deductions may begin.
(a)Deductions to liquidate an employee's debt will be by the method and in the amount stated in USDA's Notice of Intent to Offset Salary to collect from the employee's current pay.
(b)If the employee filed a petition for a hearing with USDA before the expiration of the period provided for in § 3.75, then deductions will begin after the hearing officer has provided the employee with a hearing, and a final written decision has been rendered in favor of USDA.
(c)If an employee retires or resigns before collection of the amount of the indebtedness is completed, the remaining indebtedness will be collected according to the procedures for administrative offset (see subpart D of this part). § 3.82 Procedures for salary offset: types of collection. A debt will be collected in a lump-sum or in installments. Collection will be by lump-sum collection unless the employee is financially unable to pay in one lump-sum, or if the amount of the debt exceeds 15 percent of disposable pay for an ordinary pay period. In these cases, deduction will be by installments, as set forth in § 3.83. § 3.83 Procedures for salary offset: methods of collection.
(a)*General.* A debt will be collected by deductions at officially-established pay intervals from an employee's current pay account, unless the employee and USDA agree to alternative arrangements for repayment under § 3.80.
(b)*Installment deductions.* Installment deductions will be made over a period not greater than the anticipated period of employment. The size and frequency of installment deductions will bear a reasonable relation to the size of the debt and the employee's ability to pay. However, the amount deducted for any period will not exceed 15 percent of the disposable pay from which the deduction is made, unless the employee has agreed in writing to the deduction of a greater amount. If possible, the installment payment will be sufficient in size and frequency to liquidate the debt in no more than three years. Installment payments of less than $25 per pay period or $50 a month will be accepted only in the most unusual circumstances.
(c)*Sources of deductions.* USDA will make deductions only from basic pay, special pay, incentive pay, retired pay, retainer pay, or in the case of an employee not entitled to basic pay, other authorized pay. § 3.84 Procedures for salary offset: Imposition of interest, penalties, and administrative costs. Interest, penalties and administrative costs will be charged in accordance with § 3.17. § 3.85 Non-waiver of rights. So long as there are no statutory or contractual provisions to the contrary, no employee payment (or all or portion of a debt) collected under these regulations will be interpreted as a waiver of any rights that the employee may have under 5 U.S.C. 5514. § 3.86 Refunds. USDA will refund promptly to the appropriate individual amounts offset under these regulations when:
(a)A debt is waived or otherwise found not owed to the United States (unless expressly prohibited by statute or regulation); or
(b)USDA is directed by an administrative or judicial order to refund amounts deducted from the employee's current pay. § 3.87 Agency regulations. USDA agencies may issue regulations or policies not inconsistent with OPM regulations (5 CFR part 550, subpart K) and regulations in this subpart governing the collection of a debt by salary offset. Subpart H—Cooperation With the Internal Revenue Service Authority: 26 U.S.C. 61; 31 U.S.C. 3720A; I TFRM 4055.50. § 3.90 Reporting discharged debts to the Internal Revenue Service. When USDA discharges a debt, whether for the full value or less, it will report the discharge to the Internal Revenue Service
(IRS)in accordance with current IRS instructions. Signed at Washington, DC on December 20, 2007. Charles F. Conner, Acting Secretary of Agriculture. [FR Doc. E7-25388 Filed 12-31-07; 8:45 am] BILLING CODE 3410-KS-P NUCLEAR REGULATORY COMMISSION 10 CFR Part 72 RIN 3150-AI23 List of Approved Spent Fuel Storage Casks: HI-STORM 100 Revision 4, Confirmation of Effective Date AGENCY: Nuclear Regulatory Commission. ACTION: Direct final rule: Confirmation of effective date. SUMMARY: The Nuclear Regulatory Commission
(NRC)is confirming the effective date of January 8, 2008, for the direct final rule that was published in the **Federal Register** on October 25, 2007 (72 FR 60543). This direct final rule amended the NRC's regulations to revise the HI-STORM 100 cask system listing to include Amendment No. 4 to Certificate of Compliance
(CoC)No. 1014. DATES: *Effective Date:* The effective date of January 8, 2008, is confirmed for this direct final rule. ADDRESSES: Documents related to this rulemaking, including any comments received, may be examined at the NRC Public Document Room, located at One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. FOR FURTHER INFORMATION CONTACT: Jayne M. McCausland, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone
(301)415-6219, e-mail *jmm2@nrc.gov.* SUPPLEMENTARY INFORMATION: On October 25, 2007 (72 FR 60543), the NRC published a direct final rule amending its regulations at 10 CFR 72.214 to revise the HI-STORM 100 cask system listing within the “List of Approved Spent Fuel Storage Casks” to include Amendment No. 4 to CoC No. 1014. This amendment modifies the CoC by adding site-specific options to permit use of a modified HI-STORM 100 cask system at the Indian Point Unit 1
(IP1)Independent Spent Fuel Storage Installation. These options include the shortening of the HI-STORM 100S Version B, Multi-Purpose Canister (MPC)-32 and MPC-32F, and the HI-TRAC 100D Canister to accommodate site-specific restrictions. Additional changes address the Technical Specification
(TS)definition of transport operations and associated language in the safety analysis report; the soluble boron requirements for Array/Class 14×14E IP1 fuel; the helium gas backfill requirements for Array/Class 14×14E IP1 fuel; the addition of a fifth damaged fuel container design under the TS definition for damaged fuel container; addition of separate burnup, cooling time, and decay heat limits for Array/Class 14×14 IP1 fuel for loading in an MPC-32 and MPC-32F; addition of antimony-beryllium secondary sources as approved contents; the loading of all IP1 fuel assemblies in damaged fuel containers; the preclusion of loading of IP1 fuel debris in the MPC-32 or MPC-32F; the reduction of the maximum enrichment for Array/Class 14×14E IP1 fuel from 5.0 to 4.5 weight percent uranium-235; changes to licensing drawings to differentiate the IP1 MPC-32 and MPC-32F from the previously approved MPC-32 and MPC-32F; and other editorial changes, including replacing all references to U.S. Tool and Die with Holtec Manufacturing Division. In the direct final rule, NRC stated that if no significant adverse comments were received, the direct final rule would become final on January 8, 2008. The NRC did not receive any comments on the direct final rule. Therefore, this rule will become effective as scheduled. Dated at Rockville, Maryland, this 26th day of December, 2007. For the Nuclear Regulatory Commission. Michael T. Lesar, Chief, Rulemaking, Directives and Editing Branch, Division of Administrative Services, Office of Administration. [FR Doc. E7-25439 Filed 12-31-07; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF THE TREASURY Office of Thrift Supervision 12 CFR Parts 558, 563, 564, 567, and 574 [OTS No. 2007-0025] Technical Amendments AGENCY: Office of Thrift Supervision, Treasury. ACTION: Final rule. SUMMARY: The Office of Thrift Supervision
(OTS)is amending its regulations to incorporate a number of technical and conforming amendments. They include clarifications and corrections of typographical errors. DATES: *Effective Date:* January 2, 2008. FOR FURTHER INFORMATION CONTACT: Sandra E. Evans, Legal Information Assistant (Regulations),
(202)906-6076, Regulations and Legislation Division, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552. SUPPLEMENTARY INFORMATION: OTS is amending its regulations to incorporate a number of technical and conforming amendments. OTS is making the following miscellaneous changes: • *Sections 558.1 and 558.2—Procedure upon taking possession; notice of appointment.* OTS's regulations at 12 CFR 558.1 provides that when OTS appoints a conservator or receiver, the conservator or receiver shall, upon taking possession of the institution:
(1)Give notice of the appointment to any officer or employee of the institution who appears to be in charge at the institution's principal office, and
(2)serve a copy of the order of appointment upon the savings association or an existing conservator or receiver by leaving a copy of the order at the principal office or by handing a copy of the order to specified persons. This final rule modifies §§ 558.1 and 558.2 to increase administrative flexibility by providing that the Director of OTS will designate those persons or entities that will give notice and make service. In addition, reference to service on prior receivers is eliminated because the OTS may appoint only the Federal Deposit Insurance Corporation as a receiver of a savings association. • *Section 563.43—Loans by savings associations to their executive officers, directors and principal shareholders.* The final rule revises the introductory paragraph to remove the reference to subparts A and B of the Federal Reserve Board's Regulation O (12 CFR Part 215) as Regulation O is no longer divided into subparts. The introductory paragraph is also revised to remove the reference to § 215.13 since that section no longer exists. • *Section 564.8—Appraisal policies and practices of savings associations and subsidiaries.* The incorrect reference to § 563.172 in paragraph
(a)“Introduction” is removed. • *Section 567.5—Components of capital.* Section 567.5(b)(1)(iv), which refers to net worth certificates, and section 567.5(b)(1)(v), which refers to income capital certificates, are obsolete and are removed. All of these certificates have been redeemed and no longer exist. • *Section 567.12—Intangible assets, servicing assets, and credit-enhancing interest-only strips.* The practice of grandfathering core deposit intangibles
(CDIs)is no longer relevant because all CDIs were fully amortized as of 2002. Therefore, § 567.12(g) is removed. • *Section 574.2(c)(3)—Definitions.* The cross-reference to § 563b.2(a)(39) is corrected by replacing it with a cross-reference to § 563b.25. Administrative Procedure Act; Riegle Community Development and Regulatory Improvement Act of 1994 OTS finds that there is good cause to dispense with prior notice and comment on this final rule and with the 30-day delay of effective date mandated by the Administrative Procedure Act. 1 OTS believes that these procedures are unnecessary and contrary to the public interest because the rule merely makes changes to agency procedures and technical changes to existing provisions. Because the amendments in the rule are not substantive, these changes will not affect savings associations. 1 5 U.S.C. 553. Section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 provides that regulations that impose additional reporting, disclosure, or other new requirements may not take effect before the first day of the quarter following publication. 2 This section does not apply because this final rule imposes no additional requirements and makes only technical changes to existing regulations. 2 Pub. L. 103-325, 12 U.S.C. 4802. Regulatory Flexibility Act Pursuant to section 605(b) of the Regulatory Flexibility Act, 3 the OTS Director certifies that this technical corrections regulation will not have a significant economic impact on a substantial number of small entities. 3 Pub. L. 96-354, 5 U.S.C. 601. Executive Order 12866 OTS has determined that this rule is not a “significant regulatory action” for purposes of Executive Order 12866. Unfunded Mandates Reform Act of 1995 OTS has determined that the requirements of this final rule will not result in expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more in any one year. Accordingly, a budgetary impact statement is not required under section 202 of the Unfunded Mandates Reform Act of 1995. List of Subjects 12 CFR Part 558 Savings associations. 12 CFR Part 563 Accounting, Administrative practice and procedure, Advertising, Conflict of interests, Crime, Currency, Holding companies, Investments, Mortgages, Reporting and recordkeeping requirements, Savings associations, Securities, Surety bonds. 12 CFR Part 564 Mortgages, Reporting and recordkeeping requirements, Savings associations. 12 CFR Part 567 Reporting and recordkeeping requirements, Savings associations. 12 CFR Part 574 Administrative practice and procedure, Holding companies, Reporting and recordkeeping requirements, Savings associations, Securities. Accordingly, the Office of Thrift Supervision amends title 12, chapter V of the Code of Federal Regulations, as set forth below. PART 558—POSSESSION BY CONSERVATORS AND RECEIVERS FOR FEDERAL AND STATE SAVINGS ASSOCIATIONS 1. The authority citation for part 558 continues to read as follows: Authority: 12 U.S.C. 1462, 1462a 1463, 1464, 1467a. 2. Amend § 558.1 by removing paragraphs (b)(1) and (b)(2) and redesignating paragraphs (b)(3) through (b)(7) as paragraphs (b)(1) through (b)(5). 3. Revise § 558.2 to read as follows: § 558.2 Notice of appointment.
(a)When the Director of OTS issues an order for the appointment of a conservator or receiver, the Director will designate the persons or entities whose employees or agents must, before the conservator or receiver takes possession of the savings association:
(1)Give notice of the appointment to any officer or employee who is present in and appears to be in charge at the principal office of the savings association as determined by OTS.
(2)Serve a copy of the order for the appointment upon the savings association or upon the conservator by:
(i)Leaving a certified copy of the order of appointment at the principal office of the savings association as determined by OTS; or
(ii)Handing a certified copy of the order of appointment to the previous conservator of the savings association, or to the officer or employee of the savings association, or to the previous conservator who is present in and appears to be in charge at the principal office of the savings association as determined by OTS. [?USGPO Galley End:?]
(3)File with the Secretary of OTS a statement that includes the date and time that notice of the appointment was given and service of the order of appointment was made.
(b)If the Director of OTS appoints a conservator or receiver under this part, OTS will immediately file a notice of the appointment for publication in the **Federal Register** . PART 563—SAVINGS ASSOCIATIONS—OPERATIONS 4. The authority citation for part 563 continues to read as follows: Authority: 12 U.S.C. 375b, 1462, 1462a, 1463, 1464, 1467a, 1468, 1817, 1820, 1828, 1831o, 3806; 31 U.S.C. 5318; 42 U.S.C. 4106. § 563.43 [Amended] 5. Amend the introductory paragraph of § 563.43 by removing “12 CFR Part 215, subparts A and B of the Federal Reserve Board's Regulation O, with the exception of 12 CFR 215.13,” and adding “the Federal Reserve Board's Regulation O (12 CFR Part 215),” in its place. PART 564—APPRAISALS 6. The authority citation for Part 564 continues to read as follows: Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1828(m), 3331 *et seq.* § 564.8 [Amended] 7. Amend § 564.8(a) by removing “§§ 563.170 and 563.172 of this part” and adding “§ 563.170 of this chapter” in its place. PART 567—CAPITAL 8. The authority citation for Part 567 continues to read as follows: Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1467a, 1828 (note). § 567.5 [Amended] 9. Amend § 567.5 by removing paragraphs (b)(1)(iv) and
(v)and redesignating paragraphs (b)(1)(vi) and
(vii)as paragraphs (b)(1)(iv) and (v). § 567.12 [Amended] 10. Amend § 567.12 by removing paragraph
(g)and redesignating paragraph
(h)as paragraph (g). PART 574—ACQUISITION OF CONTROL OF SAVINGS ASSOCIATIONS 11. The authority citation for Part 574 continues to read as follows: Authority: 12 U.S.C. 1467a, 1817, 1831i. § 574.2 [Amended] 12. Amend § 574.2(c)(3) by removing “§ 563b.2(a)(39)” and adding “§ 563b.25 of this chapter” in its place. Dated: December 19, 2007. By the Office of Thrift Supervision. John M. Reich, Director. [FR Doc. E7-25000 Filed 12-31-07; 8:45 am] BILLING CODE 6720-01-P[?USGPO Galley End:?] DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. CE285; Special Conditions No. 23-225-SC] Special Conditions: AmSafe Aviation; Inflatable Restraints Installation; Approved Model List of Normal and Utility Category Airplanes, and Agricultural Airplanes Certificated in the Normal/Utility/Restricted Category AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions; request for comments. SUMMARY: These special conditions are issued for AmSafe Aviation for a list of approved models. These airplanes, as modified by AmSafe Aviation, will have novel and unusual design features associated with the lap belt or shoulder harness portion of the safety belt, which contains an integrated airbag device. The applicable airworthiness regulations do not contain adequate and appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the airworthiness standards. DATES: The effective date of these special conditions is December 26, 2007. Comments must be received on or before February 1, 2008. ADDRESSES: Mail two copies of your comments on these special conditions to: Federal Aviation Administration (FAA), Regional Counsel, ACE-7, Attention: Rules Docket, Docket No. CE285, 901 Locust, Room 506, Kansas City, Missouri 64106, or you may deliver two copies to the Regional Counsel at the above address. Mark your comments: Docket No. CE285. You may inspect comments in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m. FOR FURTHER INFORMATION CONTACT: Mr. Bob Stegeman, Federal Aviation Administration, Small Airplane Directorate, Aircraft Certification Service, ACE-111, 901 Locust, Kansas City, Missouri, 816-329-4140, fax 816-329-4090, e-mail *Robert.Stegeman@faa.gov.* SUPPLEMENTARY INFORMATION: The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance. Comments Invited We invite interested persons to participate in the making of these proposed special conditions by submitting such written data, views, or arguments as they may desire. Identify the regulatory docket or notice number and submit the comments in duplicate to the address specified above. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to CE285.” The postcard will be date stamped and returned to the commenter. Background On March 8, 2007, AmSafe Aviation, 1043 North 47th Avenue, Phoenix, AZ 85043, applied for a supplemental type certificate for the installation of inflatable restraints in additional airplane models included herein that were certificated prior to the dynamic seat rule specified in 14 CFR part 23, § 23.562 and in agricultural airplanes. AmSafe Aviation has previously applied for and obtained an Approved Model List
(AML)Supplemental Type Certificate
(STC)for the installation of Inflatable Two-, Three-, Four- or Five-Point Restraint Safety Belts with an Integrated Airbag Device in airplanes certificated in the Part 23 Normal/Utility categories. The current AML STC does not allow airbags in agricultural aircraft. However, AmSafe recently provided the FAA data showing the installation of inflatable restraints in agricultural airplanes would have a positive safety effect. This special condition amends the existing AML STC to include additional normal category aircraft and to allow airbag installation in agricultural aircraft. The inflatable restraint system is either a two-, three-, four-, or five-point safety belt restraint system consisting of a shoulder harness and a lap belt with an inflatable airbag attached to either the lap belt or the shoulder harness. The inflatable portion of the restraint system will rely on sensors to electronically activate the inflator for deployment. The inflatable restraint system will be made available on the pilot, co-pilot, and passenger seats of these airplanes. If an emergency landing occurs, the airbag will inflate and provide a protective cushion between the occupant's head and structure within the airplane. This will reduce the potential for head and torso injury. The inflatable restraint behaves in a manner that is similar to an automotive airbag. However, in this case, the airbag is integrated into the lap or shoulder belt. While airbags and inflatable restraints are standard in the automotive industry, the use of an inflatable restraint system is novel for aircraft operations. The FAA has determined that this project will be accomplished on the basis of not lowering the current level of safety of the airplanes' original certification basis. The FAA has two primary safety concerns with the installation of airbags or inflatable restraints: • That they perform properly under foreseeable operating conditions; and • That they do not perform in a manner or at such times as to impede the pilot's ability to maintain control of the airplane or constitute a hazard to the airplane or occupants. The latter point has the potential to be the more rigorous of the requirements. An unexpected deployment while conducting the takeoff or landing phases of flight may result in an unsafe condition. The unexpected deployment may either startle the pilot, or it may generate a force sufficient to cause a sudden movement of the control yoke. Either action could result in a loss of control of the airplane, the consequences of which are magnified due to the low operating altitudes during these phases of flight. This consideration is of special concern for aircraft designated for agricultural use because these aircraft spend a majority of their flight time at low altitudes. The FAA has considered this when establishing these special conditions. The inflatable restraint system relies on sensors to electronically activate the inflator for deployment. These sensors could be susceptible to inadvertent activation, causing deployment in a potentially unsafe manner. The consequences of an inadvertent deployment must be considered in establishing the reliability of the system. AmSafe Aviation must show that the effects of an inadvertent deployment in flight are not a hazard to the airplane or that an inadvertent deployment is extremely improbable. Recent analysis provided to the FAA in a July 2006 AmSafe Aviation report based upon National Agricultural Aviation Association accident data shows that the risk of inadvertent deployment is outweighed by the potential safety improvement added by the enhanced restraint system. Given this data, the FAA believes that the improved restraint system will result in an increased margin of safety in comparison with existing designs. In addition, general aviation and agricultural aircraft are susceptible to a large amount of cumulative wear and tear on a restraint system. It is likely that the potential for inadvertent deployment increases as a result of this cumulative damage. Therefore, the impact of wear and tear on inadvertent deployment must be considered. Due to the effects of this cumulative damage, a life limit must be established for the appropriate system components in the restraint system design. There are additional factors to be considered to minimize the chances of inadvertent deployment. General aviation airplanes are exposed to a unique operating environment, since the same airplane may be used by both experienced and student pilots. The effect of this environment on inadvertent deployment must be understood. Therefore, qualification testing of the firing hardware/software must consider the following: • The airplane vibration levels appropriate for general aviation and agricultural airplanes; and • The inertial loads that result from typical flight/ground maneuvers, gusts, hard landings and flight maneuvering unique to both general aviation and agricultural aircraft operations. Any tendency for the firing mechanism to activate as a result of these loads or acceleration levels is unacceptable. Other influences on inadvertent deployment include high intensity electromagnetic fields
(HIRF)and lightning. Since the sensors that trigger deployment are electronic, they must be protected from the effects of these threats. To comply with HIRF and lightning requirements, the AmSafe Aviation inflatable restraint system is considered a critical system, since its inadvertent deployment could have a hazardous effect on the airplane. Given the level of safety of the retrofitted airplane occupant restraints, the inflatable restraint system must show that it will offer an equivalent level of protection in the event of an emergency landing. If a deployment occurs, the restraint must still be at least as strong as a Technical Standard Order approved belt and shoulder harnesses. There is no requirement for the inflatable portion of the restraint to offer protection during multiple impacts, where more than one impact would require protection. The inflatable restraint system must deploy and provide protection for each occupant during crash conditions as specified in the original certification basis. Therefore, the test emergency landing loads identified in the original certification basis of the airplane must be used to satisfy this requirement. It must be shown that the inflatable restraint will deploy and provide protection under crash conditions as specified in the original certification basis. Compliance will be demonstrated using the test condition specified in the original certification basis. It must be shown that the crash sensor will trigger when exposed to a rapidly applied deceleration, like an actual crash event. Therefore, the test crash pulses identified in § 23.562 must be used to satisfy this requirement, although, the peak “G” may be reduced to a level meeting the original certification requirements of the aircraft. Testing to these pulses will demonstrate that the crash sensor will trigger when exposed to a rapidly applied deceleration, like an actual crash event. It is possible a wide range of occupants will use the inflatable restraint. Thus, the protection offered by this restraint should be effective for occupants that range from the fifth percentile female to the ninety-fifth percentile male. In support of this operational capability, there must be a means to verify the integrity of this system before each flight. As an option, AmSafe Aviation can establish inspection intervals where they have demonstrated the system to be reliable between these intervals. An inflatable restraint may be “armed” even though no occupant is using the seat. While there will be means to verify the integrity of the system before flight, it is also prudent to require that unoccupied seats with active restraints not constitute a hazard to any occupant. This will protect any individual performing maintenance inside the cockpit while the aircraft is on the ground. The restraint must also provide suitable visual warnings that would alert rescue personnel to the presence of an inflatable restraint system. In addition, the design must prevent the inflatable seatbelt from being incorrectly buckled and/or installed such that the airbag would not properly deploy. As an alternative, AmSafe Aviation may show that such deployment is not hazardous to the occupant and will still provide the required protection. The cabins of the various model airplanes identified in these special conditions are confined areas, and the FAA is concerned that noxious gasses may accumulate if an airbag deploys. When deployment does occur, either by design or inadvertently, there must not be a release of hazardous quantities of gas or particulate matter into the cockpit. An inflatable restraint should not increase the risk already associated with fire. Therefore, the inflatable restraint should be protected from the effects of fire, so that an additional hazard is not created by, for example, a rupture of the inflator. Finally, the airbag is likely to have a large volume displacement, and it may impede the egress of an occupant. Since the bag deflates to absorb energy, it is likely that the inflatable restraint would be deflated at the time an occupant would attempt egress. However, it is appropriate to specify a time interval after which the inflatable restraint may not impede rapid egress. Ten seconds has been chosen as reasonable time. This time limit will offer a level of protection throughout the impact event. Special conditions for the installation of AAIR systems on other certificated airplanes have been issued and no substantive public comments were received. Since the same special conditions were issued multiple times for different model airplanes with no substantive public comments, the FAA began issuing direct final special conditions with an invitation for public comment. This was done to eliminate the waiting period for public comments and to allow AmSafe Aviation to proceed with the project. These previous special conditions were typically issued for a single model airplane or for variants of a model from a single airplane manufacturer, and required dynamic testing of each AAIR system installation for showing compliance. Additionally, a previous AML STC was issued for AmSafe Aviation including numerous airplane models and manufacturers. Since AmSafe Aviation has previously demonstrated by dynamic testing, and has the supporting data, that the Electronics Module Assembly
(EMA)and inflator assembly will function as intended in a simulated dynamic emergency landing, it is not necessary to repeat the test for each airplane model shown in these special conditions. Type Certification Basis Under the provisions of 14 CFR part 21, § 21.101, AmSafe Aviation must show that affected airplane models, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in the Type Certificate Numbers listed below or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the original “type certification basis” and can be found in the Type Certificate Numbers listed below. The following models are covered by this special condition:[?USGPO Galley End:?] List of All Airplane Models and Applicable TCDS Make Model TC holder TCDS Certification basis 1 Aerostar PA-60-600 (Aerostar 600), PA-60-601 (Aerostar 601), PA-60-601P (Aerostar 601P), PA-60-602P (Aerostar 602P), PA-60-700P (Aerostar 700P) Aerostar Aircraft Corporation A17WE, Revision 22 14 CFR part 23. 1 All American 10A All American Aircraft, Inc A-792 CAR 3. 1 American Champion (Champion) 402 American Champion Aircraft Corp A3CE, Revision 5 CAR 3. 1 American Champion (Bellanca), (Champion), (Aeronca) 7AC, 7ACA, 7EC, 7GCB, S7AC, S7EC, 7GCBA (L-16A), 7BCM, 7ECA, 7GCBC (L-16B), 7CCM, 7FC, 7HC, S7CCM, 7GC, 7JC, 7DC, 7GCA, 7KC, S7DC, 7GCAA, 7KCAB American Champion Aircraft Corp A-759, Revision 67 CAR 4a. 1 American Champion (Bellanca), (Trytek), (Aeronca) 11AC, S11AC, 11BC, S11BC American Champion Aircraft Corp A-761, Revision 17 CAR 4a. 1 American Champion (Bellanca), (Trytek), (Aeronca) 11CC, S11CC American Champion Aircraft Corp A-796, Revision 14 CAR 3. 1 VARGA (Morrisey) 2150, 2150A, 2180 Augustair, Inc 4A19, Revision 9 CAR 3. 1 Bellanca 14-13, 14-13-2, 14-13-3, 14-13-3W Bellanca Aircraft Corporation A-773, Revision 10 CAR 4a. 1 Bellanca 14-9, 14-9L Bellanca Aircraft Corporation TC716 CAR 4a. 1 Cessna 120, 140 Cessna Aircraft Company A-768, Revision 34 CAR 4a. 1 Cessna 140A Cessna Aircraft Company 5A2, Revision 21 CAR 3. 1 Cessna 150, 150J, 150A, 150K, 150B, A150K, 150C, 150L, 150D, A150L, 150E, 150M, 150F, A150M, 150G, 152, 150H, A152 Cessna Aircraft Company 3A19, Revision 44 CAR 3. 1 Cessna 170, 170A, 170B Cessna Aircraft Company A-799, Revision 54 CAR 3. 1 Cessna 172, 172I, 172A, 172K, 172B, 172L, 172C, 172M, 172D, 172N, 172E, 172P, 172F (USAF T-41A), 172Q, 172G, 172H (USAF T-41A) Cessna Aircraft Company 3A12, Revision 73 CAR 3. 1 Cessna 175, 175A, 175B, 175C, P172D, R172E (USAF T-41B) (USAF T-41C and D), R172F (USAF T-41D), R172G (USAF T-41C or D), R172H (USAF T-41D), R172J, R172K, 172RG Cessna Aircraft Company 3A17, Revision 45 CAR 3. 1 Cessna 177, 177A, 177B Cessna Aircraft Company A13CE, Revision 24 14 CFR part 23. 1 Cessna 180, 180E, 180A, 180F, 180B, 180G, 180C, 180H, 180D, 180J, 180E, 180K Cessna Aircraft Company 5A6, Revision 66 CAR 3. 1 Cessna 182, 182K, 182A, 182L, 182B, 182M, 182C, 182N, 182D, 182P, 182E, 182Q, 182F, 182R, 182G, R182, 182H, T182, 182J, TR182 Cessna Aircraft Company 3A13, Revision 64 CAR 3. 1 Cessna 185, A185E, 185A, A185F, 185B, 185C, 185D, 185E Cessna Aircraft Company 3A24, Revision 37 CAR 3. Cessna AgWagon 188, 188A, 188B, A188, A188A, A188B, T188C Cessna Aircraft Company A9CE, Revision 27 14 CFR part 23. 1 Cessna 190 (LC-126A,B,C), 195, 195A, 195B Cessna Aircraft Company A-790, Revision 36 CAR 3. 1 Cessna 206, U206B, TP206D, P206, U206C, TP206E, P206A, U206D, TU206A, P206B, U206E, TU206B, P206C, U206F, TU206C, P206D, U206G, TU206D, P206E, TP206A, TU206E, U206, TP206B, TU206F, U206A, TP206C, TU206G Cessna Aircraft Company A4CE, Revision 43 CAR 3. 1 Cessna 208, 208A, 208B Cessna Aircraft Company A37CE, Revision 12 14 CFR part 23. 1 Cessna 210, 210K, 210A, T210K, 210B, 210L, 210C, T210L, 210D, 210M, 210E, T210M, 210F, 210N, T210F, P210N, 210G, T210N, T210G, 210R, 210H, P210R, T210H, T210R, 210J, 210-5 (205), T210J, 210-5A
(205A)Cessna Aircraft Company 3A21, Revision 46 CAR 3. 1 Cessna 310, 310J, 310A (USAF U-3A), 310J-1, 310B, E310J, 310C, 310K, 310D, 310L, 310E (USAF U-3B), 310N, 310F, 310P, 310G, T310P, 310H, 310Q, E310H, T310Q, 310I, 310R, T310R Cessna Aircraft Company 3A10, Revision 62 CAR 3. 1 Cessna 320, 320F, 320-1, 335, 320A, 340, 320B, 340A, 320C, 320D, 320E Cessna Aircraft Company 3A25, Revision 25 CAR 3. 1 Cessna 321 (Navy OE-2) Cessna Aircraft Company 3A11, Revision 6 CAR 3. 1 Cessna 336 Cessna Aircraft Company A2CE, Revision 7 CAR 3. 1 Cessna 337A (USAF 02B), T337E, 337B, 337F, M337B (USAF 02A), T337F, T337B, 337G, 337C, T337G, T337C, 337H, 337D, P337H, T337D, T337H, T337H-SP Cessna Aircraft Company A6CE, Revision 40 CAR 3/14 CFR part 23. 1 Cessna 401, 401A, 401B, 402, 402A, 402B, 402C, 411, 411A, 414, 414A, 421, 421A, 421B, 421C, 425 Cessna Aircraft Company A7CE, Revision 46 CAR 3. 1 Cessna 404, 406 Cessna Aircraft Company A25CE, Revision 11 14 CFR part 23. 1 Cessna 441 Cessna Aircraft Company A28CE, Revision 12 14 CFR part 23. 1 Commander Aircraft Model 112, Model 114, Model 112TC, Model 112B, Model 112TCA, Model 114A, Model 114B, Model 114TC Commander Aircraft Company A12SO, Revision 21 14 CFR part 23. Diamond DA20-A1, DA20-C1 Diamond Aircraft Industries, Inc TA4CH, Revision 14 14 CFR part 23. 1 Great Lakes 2T-1A, 2T-1A-1, 2T-1A-2 Great Lakes Aircraft Company, LLC A18EA, Revision 10 Aeronautical Bulletin No. 7-A. 1 Helio (Taylorcraft) 15A, 20 Helio Aircraft Corporation 3A3, Revision 7 CAR 4a. 1 Learjet 23 Learjet Inc A5CE, Revision 10 CAR 3. 1 Lockheed 402-2 Lockheed Aircraft International 2A11, Revision 4 CAR 3. 1 Land-Air (TEMCO), (Luscombe) 11A, 11E Luscombe Aircraft Corporation A-804, Revision 14 CAR 3. 1 Maule Bee Dee M-4, M-5-180C, MXT-7-160, M-4-180V, M-4 M-5-200, MX-7-180A, M-4C, M-5-210C, MXT-7-180A, M-4S, M-5-210TC, MX-7-180B, M-4T, M-5-220C, M-7-235B, M-4-180C, M-5-235C, M-7-235A, M-4-180S, M-6-180, M-7-235C, M-4-180T, M-6-235, MX-7-180C, M-4-210, M-7-235, M-7-260, M-4-210C, MX-7-235, MT-7-260, M-4-210S, MX-7-180, M-7-260C, M-4-210T, MX-7-420, M-7-420AC, M-4-220, MXT-7-180, MX-7-160C, M-4-220C, MT-7-235, MX-7-180AC, M-4-220S, M-8-235, M-7-420A, M-4-220T, MX-7-160, MT-7-420 Maule Aerospace Technology, Inc 3A23, Revision 30 CAR 3. 1 Mooney M20, M20A, M20B, M20C, M20D, M20E, M20F, M20G, M20J, M20K (Up to S/N 25-2000), M20L Mooney Airplane Company, Inc 2A3, Revision 47 CAR 3. 1 Interceptor (Aero Commander) (Meyers) 200, 200A, 200B, 200C, 200D, 400 Prop-Jets, Inc 3A18, Revision 16 CAR 3. 1 Beech 35-33, J35, 35-A33, K35, 35-B33, M35, 35-C33, N35, 35-C33A, P35, E33, S35, E33A, V35, E33C, V35A, F33, V35B, F33A, 36, F33C, A36, G33, A36TC, H35, B36TC, G36 Raytheon Aircraft Company 3A15, Revision 90 CAR 3. 1 Beech 45 (YT-34), A45 (T-34A, B-45), D45 (T-34B) Raytheon Aircraft Company 5A3, Revision 25 CAR 03. 1 Beech 19A, B23, B19, C23, M19A, A24, 23, A24R, A23, B24R, A23A, C24R, A23-19, A23-24 Raytheon Aircraft Company A1CE, Revision 34 CAR 3. 1 Beech 3N, 3NM, 3TM, JRB-6, D18C, D18S, E18S, E18S-9700, G18S, H18, C-45G, TC-45G, C-45H, TC-45H, TC-45J or UC-45J (SNB-5), RC-45J (SNB-5P) Raytheon Aircraft Company A-765, Revision 74 CAR 03. 1 Beech 35, A35, E35, B35, F35, C35, G35, D35, 35R Raytheon Aircraft Company A-777, Revision 57 CAR 03. 1 Raytheon 200, A100-1 (U-21J), 200C, A200 (C-12A), 200CT, A200 (C-12C), 200T, A200C (UC-12B), B200, A200CT (C-12D), B200C, A200CT (FWC-12D), B200CT, A200CT (C-12F), B200T, A200CT (RC-12D), 300, A200CT (RC-12G), 300LW, A200CT (RC-12H), B300, A200CT (RC-12K), B300C, A200CT (RC-12P), 1900, A200CT (RC-12Q), 1900C, B200C (C-12F), 1900D, B200C (UC-12M), B200C (C-12R), B200C (UC-12F), 1900C (C-12J) Raytheon Aircraft Company A24CE, Revision 91 14 CFR part 23. 1 Beech B95A, D55, D95A, D55A, E95, E55, 95-55, E55A, 95-A55, 56TC, 95-B55, A56TC, 95-B55A, 58, 95-B55B (T-42A), 58A, 95-C55, 95, 95-C55A, B95, G58 Raytheon Aircraft Company 3A16, Revision 81 CAR 3. 1 Beech 60, A60, B60 Raytheon Aircraft Company A12CE, Revision 23 14 CFR part 23. 1 Beech 58P, 58PA, 58TC, 58TCA Raytheon Aircraft Company A23CE, Revision 14 14 CFR part 23. 1 Cessna CESSNA F172D, CESSNA F172E, CESSNA F172F, CESSNA F172G, CESSNA F172H, CESSNA F172K, CESSNA F172L, CESSNA F172M, CESSNA F172N, CESSNA F172P Reims Aviation S.A A4EU, Revision 11 CAR 10/CAR 3. 1 Socata TB 9, TB 10, TB 20, TB 21, TB 200 SOCATA—GROUPE AEROSPATIALE A51EU, Revision 14 14 CFR part 23. 1 Pitts S-1S, S-1T, S-2, S-2A, S-2S, S-2B, S-2C Sky International Inc. (Aviat Aircraft, Inc.) A8SO, Revision 21 14 CFR part 23. 1 Taylorcraft 19, F19, F21, F21A, F21B, F22, F22A, F22B, F22C Taylorcraft Aviation LLC 1A9, Revision 19 CAR 3. 1 Taylorcraft BC, BCS12-D, BCS, BC12-D1, BC-65, BCS12-D1, BCS-65, BC12D-85, BC12-65 (Army L-2H), BCS12D-85, BCS12-65, BC12D-4-85, BC12-D, BCS12D-4-85 Taylorcraft Aviation, LLC A-696, Revision 22 CAR 04. 1 Taylorcraft (Army L-2G) BF, BFS, BF-60, BFS-60, BF-65, BFS-65, (Army L-2K) BF 12-65, BFS-65 Taylorcraft, Inc A-699, Revision 5 CAR 4a. 1 Luscombe 8, 8D, 8A, 8E, 8B, 8F, 8C, T-8F The Don Luscombe Aviation History Foundation, Inc A-694, Revision 23 CAR 4a. Sierra Hotel Aero, Inc. (Navion) Navion (L-17A), Navion A (L-17B) (L-17C), Navion B, Navion D, Navion E, Navion F, Navion G, Navion H Sierra Hotel Aero, Inc A-782, Revision 51 CAR 3. Piper J-3 Piper Aircraft Inc ATC 660, Revision 0 Not listed. Piper J3C-40, J3C-50, J3C-50S, J3C-65, J3C-65S, PA-11, PA-11S Piper Aircraft Inc A-691, Revision 33 CAR 4a. FS 2003 Corporation (Piper) PA-12, PA-12S FS 2003 Corporation A-780, Revision 13 CAR 3. FS 2002 Corporation (Piper) PA-14 FS 2002 Corporation A-797, Revision 11 CAR 3. Piper PA-15 Piper Aircraft Inc A-800, Revision 11 CAR 3. Piper PA-16, PA-16S Piper Aircraft Inc 1A1, Revision 13 CAR 3. Piper PA-17 Piper Aircraft Inc A-805, Revision 12 CAR 3. 2 Piper PA-18, PA-18S, PA-18A, PA-18S “125”, PA-18AS “125”, PA-18A “135”, PA-18S “135”, PA-18AS “135”, PA-18 “150”, PA-18A “150”, PA-18S “150”, PA-18AS “150”, PA-19S The New Piper Aircraft, Inc 1A2, Revision 37 CAR 3. Piper PA-20, PA-20-115, PA-20-135, PA-20S, PA-20S-115, PA-20S-135 Piper Aircraft Inc 1A4, Revision 24 CAR 3. Piper PA-22, PA-22-108, PA-22-135, PA-22-150, PA-22-160, PA-22S-135, PA-22S-150, PA-22S-160 Piper Aircraft Inc 1A6, Revision 34 CAR 3. Piper PA-23, PA-23-160, PA-23-235, PA-23-250 Piper Aircraft Inc 1A10, Revision 51 CAR 3. Piper PA-24, PA-24-250, PA-24-260, PA-24-400 Piper Aircraft Inc 1A15, Revision 34 CAR 3. 1 Piper PA-28-140, PA-28-151, PA-28-150, PA-28-161, PA-28-160, PA-28-181, PA-28-180, PA-28R-201, PA-28-235, PA-28R-201T, PA-28S-160, PA-28-236, PA-28S-180, PA-28RT-201, PA-28R-180, PA-28RT-201T, PA-28R-200, PA-28-201T The New Piper Aircraft, Inc 2A13, Revision 47 CAR 3. 1 Piper PA-30, PA-39, PA-40 The New Piper Aircraft, Inc A1EA, Revision 16 CAR 3. 1 Piper PA-32-260, PA-32R-301 (SP), PA-32-300, PA-32R-301 (HP), PA-32S-300, PA-32R-301T, PA-32R-300, PA-32-301, PA-32RT-300, PA-32-301T, PA-32RT-300T, PA-32-301FT, PA-32-301XTC The New Piper Aircraft, Inc A3SO, Revision 29 CAR 3. 1 Piper PA-34-200, PA-34-200T, PA-34-220T The New Piper Aircraft, Inc A7SO, Revision 16 14 CFR part 23. 1 Piper PA-31P, PA-31T, PA-31T1, PA-31T2, PA-31T3, PA-31P-350 The New Piper Aircraft, Inc A8EA, Revision 22 CAR 3. 1 Piper PA-36-285, PA-36-300, PA-36-375 The New Piper Aircraft, Inc A9SO, Revision 9 14 CFR part 23. 1 Piper PA-36-285, PA-36-300, PA-36-375 The New Piper Aircraft, Inc A10SO, Revision 12 14 CFR part 21/14 CFR part 23. 1 Piper PA-38-112 The New Piper Aircraft, Inc A18SO, Revision 4 14 CFR part 23. 1 Piper PA-44-180, PA-44-180T The New Piper Aircraft, Inc A19SO, Revision 9 14 CFR part 23. 1 Piper PA-31, PA-31-300, PA-31-325, PA-31-350 The New Piper Aircraft, Inc A20SO, Revision 10 CAR 3. 1 Piper PA-42, PA-42-720, PA-42-1000 The New Piper Aircraft, Inc A23SO, Revision 17 14 CFR part 23. 1 Piper PA-46-310P, PA-46-350P, PA-46-500TP The New Piper Aircraft, Inc A25SO, Revision 14 14 CFR part 23. 1 Tiger Aircraft LLC (American General) AA-1, AA-1A, AA-1B, AA-1C Tiger Aircraft LLC A11EA, Revision 10 14 CFR part 23. 1 Tiger Aircraft AA-5, AA-5A, AA-5B, AG-5B Tiger Aircraft LLC A16EA, Revision 13 CFR part 23. 1 Twin Commander 500, 500-A, 500-B, 500-U, 520, 560, 560-A, 560-E, 500-S Twin Commander Aircraft Corporation 6A1, Revision 45 CAR 3. 1 Twin Commander 560-F, 681, 680, 690, 680E, 685, 680F, 690A, 720, 690B, 680FL, 690C, 680FL(P), 690D, 680T, 695, 680V, 695A, 680W, 695B Twin Commander Aircraft Corporation 2A4, Revision 46 CAR 3. 1 Univair (Stinson) 108, 108-1, 108-2, 108-3, 108-5 Univair Aircraft Corporation A-767, Revision 27 CAR 3. 1 Univair
(ERCO)415-D,
(ERCO)E,
(ERCO)G, (Forney) F-1, (Forney) F-1A,
(Alon)A-2,
(Alon)A2-A, (Mooney) M10 Univair Aircraft Corporation A-787, Revision 33 CAR 3. 1 Univair (Mooney)
(ERCO)415-C,
(ERCO)415-CD Univair Aircraft Corporation A-718, Revision 29 CAR 4a. The following aircraft are certified in the restricted category: List of All Airplane Models and Applicable TCDS Make Model TC holder TCDS Certification basis Air Tractor AT-250, AT-300, AT-301, AT-302, AT-400, AT-400A Air Tractor, Inc A9SW, Revision 12 14 CFR part 23. Air Tractor AT-401, AT-401A, AT-401B, AT-402, AT-402A, AT-402B, AT-501, AT-502, AT-502A, AT-502B, AT-503, AT-503A Air Tractor, Inc A17SW, Revision 10 14 CFR part 23. Air Tractor AT-802A, AT-802, AT-602 Air Tractor, Inc A19SW, Revision 4 14 CFR part 23. Allied Ag Cat G-164, G-164A, G-164B, G-164B with 73”, G-164B-15T, G-164B-34T, G-164B-20T, G-164C, G-164D, G-164D with 73” wing gap Allied Ag Cat Productions, Inc 1A16, Revision 24 CAR 8. Gippsland Aeronautics GA200 Gippsland Aeronautics Pty. Ltd A00001LA, Revision 1 14 CFR part 23. 2 Piper PA-18A, PA-18A “135”, PA-18A “150” The New Piper Aircraft, Inc AR-7, Revision 11 CAR 8. LAVIA S.A. (Piper) PA-25, PA-25-235, PA-25-260 Latino Americana De Aviación (LAVIA) S.A 2A10, Revision 24 CAR 8. Thrush Aircraft, Inc. (Snow, Rockwell, Ayres) S-2B, S-2C, 600-S2C Thrush Aircraft, Inc 2A7, Revision 16 CAR 8. Thrush Aircraft, Inc. (Snow, Rockwell, Ayres) 600 S-2D, S-2R, S2R-T34, S2R-T15, S2R-T11, S2R-R3S, S2R-R1340 Thrush Aircraft, Inc A3SW, Revision 18 CAR 3. Thrush Aircraft, Inc. (Snow, Rockwell, Ayres) 600 S2D, S2R-R1340, S2R-G10, S-2R, S2R-R1820, S2R-G5, S2R-T34, S2R-T65, S2R-G1, S2R-T15, S2RHG-T65, S2RHG-T34, S2R-R3S, S2R-T45, S2R-T660, S2R-T11, S2R-G6 Thrush Aircraft, Inc A4SW, Revision 28 CAR 8. Weatherly 620, 620TP, 620A, 620B, 620B-TG Weatherly Aircraft Company A26WE, Revision 7 14 CFR part 23. Aircraft identified with a 1 have special conditions for AmSafe Aviation Inflatable Restraints published under Special Conditions 23-182-SC. Piper PA-18A, PA-18A “135” and PA-18A “150” (identified with a 2) are type certificated in Normal/Utility Category on TCDS 1A2 and in Restricted Category on TCDS AR-7. The same aircraft may be operated under either TCDS in accordance with the restrictions listed on TCDS AR-7. For all the models listed above, the certification basis also includes all exemptions, if any; equivalent level of safety findings, if any; and special conditions not relevant to the special conditions adopted by this rulemaking action. The Administrator has determined that the applicable airworthiness regulations (i.e., part 23 as amended) do not contain adequate or appropriate safety standards for the AmSafe Aviation, inflatable restraint as installed on these models because of a novel or unusual design feature. Therefore, special conditions are prescribed under the provisions of § 21.16. Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.101. Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to that model under the provisions of § 21.101. Novel or Unusual Design Features The various airplane models will incorporate the following novel or unusual design feature: The AmSafe Aviation Inflatable Two-, Three-, Four-, or Five-Point Restraint Safety Belt with an Integrated Airbag Device. The purpose of the airbag is to reduce the potential for injury in the event of an accident. In a severe impact, an airbag will deploy from the restraint, in a manner similar to an automotive airbag. The airbag will deploy between the head of the occupant and airplane interior structure. This will, therefore, provide some protection to the head of the occupant. The restraint will rely on sensors to electronically activate the inflator for deployment. The Code of Federal Regulations state performance criteria for seats and restraints in an objective manner. However, none of these criteria are adequate to address the specific issues raised concerning inflatable restraints. Therefore, the FAA has determined that, in addition to the requirements of part 21 and part 23, special conditions are needed to address the installation of this inflatable restraint. Accordingly, these special conditions are adopted for the various airplane models equipped with the AmSafe Aviation, two-, three-, four-, or five-point inflatable restraint. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer and civil aviation authorities. Applicability As discussed above, these special conditions are applicable to the Approved Model List
(AML)above. Should AmSafe Aviation apply at a later date for a supplemental type certificate to modify any other model included on the type certificates listed above to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well. Conclusion This action affects only certain novel or unusual design features on the previously identified airplane models. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane. Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the **Federal Register** ; however, as the certification date for these airplane models, as modified by AmSafe Aviation, is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance. List of Subjects in 14 CFR Part 23 Aircraft, Aviation safety, Signs and symbols. Citation The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.101; and 14 CFR 11.38 and 11.19. The Special Conditions The FAA has determined that this project will be accomplished on the basis of not lowering the current level of safety of the occupant restraint system for the airplane models listed in these special conditions. Accordingly, the FAA is issuing the following special conditions as part of the type certification basis for these models, as modified by AmSafe, Aviation. Inflatable Two-, Three-, Four-, or Five-Point Restraint Safety Belt with an Integrated Airbag Device Installed in an Airplane Model 1a. It must be shown that the inflatable restraint will provide restraint protection under the emergency landing conditions specified in the original certification basis of the airplane. Compliance will be demonstrated using the static test conditions specified in the original certification basis for each airplane. 1b. It must be shown that the crash sensor will trigger when exposed to a rapidly applied deceleration, like an actual emergency landing event. Therefore, compliance may be demonstrated using the deceleration pulse specified in para. 23.562, which may be modified as follows: I. The peak longitudinal deceleration may be reduced; however, the onset rate of the deceleration must be equal to or greater than the emergency landing pulse identified in para. 23.562. II. The peak longitudinal deceleration must be above the deployment threshold of the sensor, and equal or greater than the forward static design longitudinal load factor required by the original certification basis of the airplane. 2. The inflatable restraint must provide adequate protection for each occupant. In addition, unoccupied seats that have an active restraint must not constitute a hazard to any occupant. 3. The design must prevent the inflatable restraint from being incorrectly buckled and/or incorrectly installed such that the airbag would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant and will provide the required protection. 4. It must be shown that the inflatable restraint system is not susceptible to inadvertent deployment as a result of wear and tear or the inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings) that are likely to be experienced in service. 5. It must be extremely improbable for an inadvertent deployment of the restraint system to occur, or an inadvertent deployment must not impede the pilot's ability to maintain control of the airplane or cause an unsafe condition (or hazard to the airplane). In addition, a deployed inflatable restraint must be at least as strong as a Technical Standard Order (C22g or C114) restraint. 6. It must be shown that deployment of the inflatable restraint system is not hazardous to the occupant or will not result in injuries that could impede rapid egress. This assessment should include occupants whose restraints are loosely fastened. 7. It must be shown that an inadvertent deployment that could cause injury to a sitting person is improbable. In addition, the restraint must also provide suitable visual warnings that would alert rescue personnel to the presence of an inflatable restraint system. 8. It must be shown that the inflatable restraint will not impede rapid egress of the occupants 10 seconds after its deployment. 9. For the purposes of complying with HIRF and lightning requirements, the inflatable restraint system is considered a critical system since its deployment could have a hazardous effect on the airplane. 10. It must be shown that the inflatable restraints will not release hazardous quantities of gas or particulate matter into the cabin. 11. The inflatable restraint system installation must be protected from the effects of fire such that no hazard to occupants will result. 12. There must be a means to verify the integrity of the inflatable restraint activation system before each flight or it must be demonstrated to reliably operate between inspection intervals. 13. A life limit must be established for appropriate system components. 14. Qualification testing of the internal firing mechanism must be performed at vibration levels appropriate for a general aviation airplane. Issued in Kansas City, Missouri on December 26, 2007. John Colomy, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-25465 Filed 12-31-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. NM364 Special Conditions No. 25-356-SC] Special Conditions: Boeing Model 787-8 Airplane; Systems and Data Networks Security—Isolation or Protection From Unauthorized Passenger Domain Systems Access AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions. SUMMARY: These special conditions are issued for the Boeing Model 787-8 airplane. This airplane will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. These novel or unusual design features are associated with connectivity of the passenger domain computer systems to the airplane critical systems and data networks. For these design features, the applicable airworthiness regulations do not contain adequate or appropriate safety standards for protection and security of airplane systems and data networks against unauthorized access. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing standards. Additional special conditions will be issued for other novel or unusual design features of the Boeing Model 787-8 airplanes. DATES: *Effective Date:* February 1, 2008. FOR FURTHER INFORMATION CONTACT: Will Struck, FAA, Airplane and Flight Crew Interface, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone
(425)227-2764; facsimile
(425)227-1149. SUPPLEMENTARY INFORMATION: Background On March 28, 2003, Boeing applied for an FAA type certificate for its new Boeing Model 787-8 passenger airplane. The Boeing Model 787-8 airplane will be an all-new, two-engine jet transport airplane with a two-aisle cabin. The maximum takeoff weight will be 476,000 pounds, with a maximum passenger count of 381 passengers. Type Certification Basis Under provisions of 14 Code of Federal Regulations
(CFR)21.17, Boeing must show that Boeing Model 787-8 airplanes (hereafter referred to as “the 787”) meet the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-117, except §§ 25.809(a) and 25.812, which will remain at Amendment 25-115. If the Administrator finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for the 787 because of a novel or unusual design feature, special conditions are prescribed under provisions of 14 CFR 21.16. In addition to the applicable airworthiness regulations and special conditions, the 787 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of part 36. The FAA must also issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.” The FAA issues special conditions, as defined in § 11.19, under § 11.38, and they become part of the type certification basis under § 21.17(a)(2). Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101. Novel or Unusual Design Features The digital systems architecture for the 787 consists of several networks connected by electronics and embedded software. This proposed network architecture is used for a diverse set of functions, including the following: 1. Flight-safety-related control and navigation and required systems (Aircraft Control Domain). 2. Airline business and administrative support (Airline Information Domain). 3. Passenger entertainment, information, and Internet services (Passenger Information and Entertainment Domain). The proposed architecture of the 787 is different from that of existing production (and retrofitted) airplanes. It allows new kinds of passenger connectivity to previously isolated data networks connected to systems that perform functions required for the safe operation of the airplane. Because of this new passenger connectivity, the proposed data network design and integration may result in security vulnerabilities from intentional or unintentional corruption of data and systems critical to the safety and maintenance of the airplane. The existing regulations and guidance material did not anticipate this type of system architecture or electronic access to aircraft systems that provide flight critical functions. Furthermore, 14 CFR regulations and current system safety assessment policy and techniques do not address potential security vulnerabilities that could be caused by unauthorized access to aircraft data buses and servers. Therefore, special conditions are imposed to ensure that security, integrity, and availability of the aircraft systems and data networks are not compromised by certain wired or wireless electronic connections between airplane data buses and networks. Discussion of Comments Notice of Proposed Special Conditions No. 25-07-01-SC for the 787 was published in the **Federal Register** on April 13, 2007 (72 FR 18597). One comment was received from the Air Line Pilots Association, International
(ALPA)and several from Airbus. • *ALPA Comment:* ALPA strongly recommended that a backup means must also be provided for the flightcrew to disable passengers' ability to connect to these specific systems. *FAA Response:* These special conditions apply to the design of airplane systems and networks, and would not preclude a security mitigation strategy that provides a means for the flightcrew to disable passenger connectivity to the networks or to disable access to specific systems connected to the airplane networks. However, the FAA would prefer not to dictate specific design features to the applicant but rather to allow applicants the flexibility to determine the appropriate security protections and means to address all potential vulnerabilities and risks posed by allowing this access. For example, the security protection response to a suspected network security violation could result in— • The system automatically disabling passenger access to the network or certain functions, • Flight deck annunciation and flightcrew disabling of passenger access to certain systems or capabilities, or • Various combinations of the above. • *AIRBUS General Comment 1:* In Airbus's opinion these special conditions leave too much room for interpretation, and related guidance and acceptable means of compliance should be developed in an advisory circular for use by future applicants. *FAA Response:* We agree that guidance is necessary and specific, detailed compliance guidelines and criteria have been developed for this aircraft certification program, specific to this airplane's network architecture and design, providing initial guidance on an acceptable means of compliance for the 787. Additionally, the FAA intends to participate in an industry committee chartered with developing acceptable means of compliance to address aircraft network security issues, and hopes to endorse the results of the work of that committee by issuing an advisory circular (AC). Until such time as guidance is developed for a general means of compliance for network security protection, these special conditions and the agreed-to guidance are imposed on this specific network architecture and design. • *AIRBUS Comment (a):* Airbus stated that the requirement in the proposed special conditions is not “high level” enough because it considers a solution or an architecture. Airbus believes that criteria or assumptions for defining the domains are missing (for example, systems criticality, interfaces, rationale for the need to protect one domain from another one, trust levels * * *). The commenter maintained that the Aircraft Control Domain (ACD), Airline Information Domain
(AID)and Passenger Information and Entertainment Domain
(PIED)need to be precisely defined. *FAA Response:* We do not agree that the requirement in the proposed special conditions prescribes a solution or an architecture. These special conditions and the acceptable means of compliance were developed based on the Boeing-proposed 787 network architecture and connectivity between the Passenger Information and Entertainment Domain and the Aircraft Control Domain and Airline Information Domain. The applicant is responsible for the design of the airplane network and systems architecture and for ensuring that potential security vulnerabilities of providing passenger access to airplane networks and systems are mitigated to an appropriate level of assurance, depending on the potential risk to the airplane and occupant safety. This responsibility is similar to that entailed in the current system safety assessment process of 14 CFR 25.1309. (See also AC 25.1309-1A and the ARAC-recommended Arsenal version of this AC, which can be found at *http://www.faa.gov/regulations_policies/rulemaking/committees/arac/media/tae/TAE_SDA_T2.pdf* , and SAE (Society of Automotive Engineers) ARP (Aerospace Recommended Practice) 4754). We believe the general definitions for the airplane network “domains” are sufficient for these special conditions. • *AIRBUS Comment (b):* Airbus stated that in the sentence “The design shall prevent all inadvertent or malicious changes to, and all adverse impacts * * *”, the wording “shall prevent ALL” can be interpreted as a zero allowance. According to the commenter, demonstration of compliance with such a requirement during the entire life cycle of the aircraft is quite impossible because security threats evolve very rapidly. The only possible solution to such a requirement would be to physically segregate the Passenger Information and Entertainment Domain from the other domains. This would mean, for example, no shared resources like SATCOM (satellite communications), and no network connections. Airbus maintained that such a solution is not technically and operationally viable, saying that a minimum of communications is always necessary. Airbus preferred a less categorical requirement which allows more flexibility and does not prevent possible residual vulnerabilities if they are assessed as acceptable from a safety point of view. Airbus said this security assessment could be based on a security risk analysis process during the design, validation, and verification of the systems architecture that assesses risks as either acceptable or requiring mitigations even through operational procedures if necessary. Airbus noted that this process, based on similarities with the SAE ARP 4754 safety process, is already proposed by the European Organization for Civil Aviation Equipment (EUROCAE) Working Group 72 for consideration of safety risks posed by security threats or by the FAA through the document “National Airspace System Communication System Safety Hazard Analysis and Security Threat Analysis,” version v1.0, dated Feb. 21, 2006. Airbus said such a security risk analysis process could be used as an acceptable means of compliance addressed by an advisory circular. *FAA Response:* We agree that Airbus's interpretation of zero allowance for any “inadvertent or malicious changes to, and all adverse impacts” to airplane systems, networks, hardware, software, and data is correct. However, this does not prevent allowing appropriate access if the design incorporates robust security protection means and procedures to prevent inadvertent and intentional actions that could adversely impact airplane systems, functionality, and airworthiness. Airbus commented that “a minimum of communications is always necessary.” Unauthorized users, however, must not be allowed communication access to aircraft systems and equipment in such a way that inadvertent or intentional actions can have any adverse impact on the aircraft systems, equipment, and data. Technology exists which allows sharing of resources without allowing unauthorized access and inappropriate actions to systems and data. As previously mentioned, detailed compliance guidelines and criteria, specific to the 787 network architecture, have been developed into an acceptable means of compliance for this airplane certification program. In addition, we intend to participate in future related industry committees (such as SAE S-18, which is currently revising ARP 4754, EUROCAE Working Group 72, and RTCA (RTCA, Incorporated; formerly Radio Technical Commission for Aeronautics) Special Committee 216). These groups will be developing additional aircraft network security guidance, and we hope to be able to endorse the results of their efforts as an acceptable means of compliance for network security issues on future aircraft certification programs. • *AIRBUS Comment (c):* Airbus said that this requirement is limited to the design (“The design shall prevent all inadvertent or malicious changes * * * ”), but security solutions are always dependent on organizational procedures. Airbus said that because the efficiency of a security solution relies on the weakest link in the overall chain (design, operations, organizations, processes, * * *), the robustness of the design may be impaired (by, for instance, cabin crew interfaces being used by unauthorized passengers) if equivalent security requirements are not mandated for other involved parties, as, for example, through an operational or maintenance approval. *FAA Response:* The applicant is responsible for developing a design compliant with these special conditions and other applicable regulations. The design may include specific technology and architecture features, as well as operator requirements, operational procedures and security measures, and maintenance procedures and requirements, to ensure an appropriate implementation that can be properly used and maintained to ensure safe operations and continued operational safety. These special conditions do not preclude organizational, process, operational, monitoring, or maintenance procedures and requirements from being part of the design to ensure security protection. As with other aircraft models, the operator is obligated to operate and maintain the aircraft in conformance with regulations and with requirements for operation and maintenance of the product. • *AIRBUS Comment (d):* Airbus noted that the special conditions consider only interference between the Passenger Information and Entertainment Domain
(PIED)and the Airline Information Domain or Aircraft Control Domain. It notes there is no requirement for protecting the Aircraft Control Domain from the Airline Information Domain, if this one is considered less trusted than the Aircraft Control Domain. As an example, it said that the Airline Information Domain could implement portable electronic flight bags. *FAA Response:* These special conditions address only the interfaces between the passenger domain
(PIED)and other aircraft systems and networks. Other interfaces and accesses are addressed by current regulations and policy, and by another proposed special conditions. • *AIRBUS Comment (e):* Airbus said that, depending on the meaning of “unauthorized external access,” these special conditions may be redundant to proposed special conditions 25-07-02-SC (see comment “b” about 25-07-02-SC). *FAA Response:* These special conditions are not redundant. The passenger PIED and its security implementation are part of the airplane model and type design, and are not considered “external” to the aircraft. In reviewing the Boeing-proposed 787 network architecture and design during development of these special conditions, we determined the need for two separate special conditions. To ensure appropriate security protection of the aircraft and its systems, one special condition was needed for access from the passenger domain, and one for access from sources external to the airplane. • *AIRBUS proposed text revision:* Airbus proposed the following revised wording for these special conditions. The applicant shall ensure that security threats from all points within the Passenger Information and Entertainment Domain, are identified and risk mitigation strategies are implemented to protect the Aircraft Control Domain and Airline Information Services Domain from adverse impacts reducing the aircraft safety. *FAA Response:* As noted previously, the purpose of these special conditions is to ensure security protection from all inadvertent or malicious changes to, and all adverse impacts to, airplane systems, networks, hardware, software, and data from accesses through the passenger domain. We do not believe the commenter's proposal is specific enough to achieve this purpose, and we will retain the current wording. Applicability As discussed above, these special conditions are applicable to the 787. Should Boeing apply at a later date for a change to the type certificate to include another model on the same type certificate incorporating the same novel or unusual design features, these special conditions would apply to that model as well. Conclusion This action affects only certain novel or unusual design features of the 787. It is not a rule of general applicability. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 787-8 airplane. The design shall prevent all inadvertent or malicious changes to, and all adverse impacts upon, all systems, networks, hardware, software, and data in the Aircraft Control Domain and in the Airline Information Domain from all points within the Passenger Information and Entertainment Domain. Issued in Renton, Washington, on December 21, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-25467 Filed 12-31-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28688; Directorate Identifier 2005-SW-21-AD; Amendment 39-15312; AD 2007-26-10] RIN 2120-AA64 Airworthiness Directives; Bell Helicopter Textron Canada Model 430 Helicopters AGENCY: Federal Aviation Administration, DOT. ACTION: Final rule. SUMMARY: This amendment adopts a new airworthiness directive
(AD)for Bell Helicopter Textron Canada
(BHTC)Model 430 helicopters that requires replacing a certain servo actuator-to-actuator support attachment bolt
(bolt)with an airworthy bolt. This action also requires establishing a retirement life for certain bolts and recording the retirement life on a component history card or equivalent record. This amendment is prompted by further evaluation of certain fatigue-critical parts, resulting in establishing a life limit of 5,000 hours for the affected bolts. The actions specified by this AD are intended to prevent fatigue failure of the bolt and subsequent loss of control of the helicopter. DATES: Effective February 6, 2008. ADDRESSES: You may get the service information identified in this AD from Bell Helicopter Textron Canada, 12,800 Rue de l’Avenir, Mirabel, Quebec J7J1R4, telephone
(450)437-2862 or
(800)363-8023, fax
(450)433-0272. *Examining the Docket:* You may examine the docket that contains this AD, any comments, and other information on the Internet at *http://www.regulations.gov* or at the Docket Operations office, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC. FOR FURTHER INFORMATION CONTACT: Sharon Miles, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Regulations and Guidance Group, Fort Worth, Texas 76193-0111, telephone
(817)222-5122, fax
(817)222-5961. SUPPLEMENTARY INFORMATION: A proposal to amend 14 CFR part 39 to include an AD for the specified model helicopters was published in the **Federal Register** on July 16, 2007 (72 FR 38797). That action proposed to require replacing a certain bolt with an airworthy bolt. That action also proposed establishing a retirement life for certain bolts and recording the retirement life on a component history card or equivalent record. Transport Canada, the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on BHTC Model 430 helicopters, serial numbers 49001 through 49106. Transport Canada advises of the need to establish a new airworthiness life limitation of 5,000 hours for the three servo actuator support attachment bolts and to replace the three affected bolts. Bell Helicopter Textron has issued Alert Service Bulletin No. 430-05-33, dated February 16, 2005 (ASB). The ASB introduces a retirement life of 5,000 hours for the bolts. The ASB states that since these bolts have not been listed in the Helicopter Component Replace record, it is difficult to determine with accuracy the actual number of hours accumulated on fielded bolts. Also, the ASB states that Bell has elected to replace all the fielded bolts, part number (P/N) 50-047C8-31. Transport Canada classified this ASB as mandatory and issued AD No. CF-2005-09, dated April 14, 2005, to ensure the continued airworthiness of these helicopters in Canada. This helicopter model is manufactured in Canada and is type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, Transport Canada has kept us informed of the situation described above. We have examined the findings of Transport Canada, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States. Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed with two changes. We corrected a paragraph under the ADDRESSES section in the preamble to reflect the correct address for getting the service information. Also, we added a Note to the AD stating that there is service information that pertains to the subject of the AD. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD. We estimate that this AD will affect 54 helicopters of U.S. registry, and the required actions will take about 2 work hours per helicopter to replace 3 bolts at an average labor rate of $80 per work hour. Required parts will cost about $243 for each bolt. Based on these figures, we estimate the total cost impact of the AD on U.S. operators to be $ $48,006, assuming that the recordkeeping cost would be negligible. 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 an economic evaluation of the estimated costs to comply with this AD. See the AD docket to examine the economic evaluation. 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. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. Adoption of the Amendment Accordingly, pursuant to 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. Section 39.13 is amended by adding a new airworthiness directive to read as follows: **2007-26-10 Bell Helicopter Textron Canada:** Amendment 39-15312. Docket No. FAA-2007-28688; Directorate Identifier 2005-SW-21-AD. *Applicability:* Model 430 helicopters, serial numbers 49001 through 49106, with a servo actuator-to-actuator support attachment bolt (bolt), part number (P/N) 50-047C8-31, installed, which attaches the lower two cyclic servo actuators and the lower collective servo actuator to the three lower actuator supports, certificated in any category. *Compliance:* Required as indicated, unless accomplished previously. To prevent fatigue failure of the bolt and subsequent loss of control of the helicopter, do the following:
(a)Within 150 hours time-in-service (TIS), replace all three affected bolts, as depicted for one of these bolts in Figure 1 of this AD, with airworthy, zero-time bolts, P/N 50-047C8-31. BILLING CODE 4910-13-P ER02JA08.004 BILLING CODE 4910-13-C **Note 1:** Only the right servo lower attach bolt
(1)is shown. The collective and left cyclic servo lower attach bolts are also to be replaced. (This AD does not apply to the same part-numbered bolts at the upper end of each servo.) Note 2: Bell Helicopter Textron Alert Service Bulletin No. 430-05-33, dated February 16, 2005, pertains to the subject of this AD.
(b)This AD revises the Airworthiness Limitations section of the maintenance manual by establishing a retirement life of 5000 hours TIS for each bolt.
(c)Record a 5000-hour TIS life limit for each bolt on the component history card or equivalent record.
(d)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Contact the Safety Management Group, FAA, *ATTN:* Sharon Miles, Aviation Safety Engineer, Rotorcraft Directorate, Regulations and Guidance Group, Fort Worth, Texas 76193-0111, telephone
(817)222-5122, fax
(817)222-5961 for information about previously approved alternative methods of compliance.
(e)This amendment becomes effective on February 6, 2008. Note 3: The subject of this AD is addressed in Transport Canada (Canada) AD No. CF 2005-09, dated April 14, 2005. Issued in Fort Worth, Texas, on November 30, 2007. Mark R. Schilling, Acting Manager, Rotorcraft Directorate, Aircraft Certification Service. [FR Doc. E7-25389 Filed 12-31-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 700, 730, 740, 743, 744, 745, 746, 748, 750, 752, 754, and 774 [Docket No. 071011588-7712-02] RIN 0694-AE15 Revisions and Technical Corrections to the Export Administration Regulations and the Defense Priorities and Allocations System Regulation AGENCY: Bureau of Industry and Security, Commerce. ACTION: Final rule. SUMMARY: This rule amends the Export Administration Regulations
(EAR)by making the following changes: Removing the post office box address for the Bureau of Industry and Security (BIS), updating the contact information for the San Jose field office, reinserting missing footnotes in sections describing License Exceptions, removing certain non-Country Group D countries from Country Group D, correcting formatting in the supplement listing items subject to the military end-use license requirement for the People's Republic of China (PRC), correcting the Code of Federal Regulations legal authority citation for part 745 of the EAR, removing a reference to Libya under embargoed destinations, adding fax information for submitting a request for approval to submit applications electronically, clarifying the requirements for obtaining an Import Certificate or an End-User Statement, changing Validated End-User report requirements, amending the contact information for the Ministry of Commerce of the PRC, making a technical correction to shipping tolerances, and removing references to certain entries on the Commerce Control List. In addition, this rule amends the Defense Priorities and Allocations System
(DPAS)Regulation by updating an office name and by removing a reference to a form. DATE: This rule is effective January 2, 2008. ADDRESSES: Although this is a final rule, comments are welcome and should be sent to *publiccomments@bis.doc.gov,* fax
(202)482-3355, or to Regulatory Policy Division, Bureau of Industry and Security, Room H2705, U.S. Department of Commerce, Washington, DC 20230. Please refer to regulatory identification number
(RIN)0694-AE15 in all comments, and in the subject line of email comments. Comments on the collection of information should be sent to David Rostker, Office of Management and Budget (OMB), by e-mail to *David_Rostker@omb.eop.gov* , or by fax to
(202)395-7285. [?USGPO Galley End:?][?USGPO Galley End:?] FOR FURTHER INFORMATION CONTACT: For questions related to amendments to the Export Administration Regulations, contact Steven Emme, Regulatory Policy Division, Bureau of Industry and Security, telephone:
(202)482-2440, e-mail: *semme@bis.doc.gov.* For questions related to amendments to the Defense Priorities and Allocations System Regulation, contact Liam McMenamin, Office of Strategic Industries and Economic Security, Bureau of Industry and Security, telephone:
(202)482-2233. SUPPLEMENTARY INFORMATION: This rule makes the following corrections to the Export Administration Regulations: Address Changes—Removal of P.O. Box Address for BIS in Washington, DC and Change in Location for BIS San Jose Field Office BIS will no longer accept materials sent to post office box 273 in Washington, DC. In lieu of P.O. Box 273, materials may be sent via courier to Room 2705, 14th Street and Pennsylvania Ave., NW., Washington, DC 20230. To reflect this update, this rule removes references to P.O. Box 273 in parts 730, 740, 743, 748, 752, 754, and 774 and replaces those references with Room 2705, where applicable. Furthermore, this rule updates the address, phone number, and fax number for the San Jose field office in §§ 730.8 (how to proceed and where to get help) and 748.2 (obtaining forms; mailing addresses). Part 740—Reinsertion of Footnotes On March 25, 1996, BIS (then the Bureau of Export Administration, or BXA) published an interim rule (61 FR 12714) which rewrote and reorganized the Export Administration Regulations. The rewrite created part 740 for license exceptions, which included § 740.4 for temporary imports, exports and reexports
(TMP)and § 740.7 for gift parcels and humanitarian donations (GFT). On December 4, 1996, BIS published a subsequent revision (61 FR 64272) to the EAR that redesignated TMP as § 740.8 and GFT as § 740.11. When TMP and GFT were redesignated, one footnote to paragraph (b)(1)(iv) in TMP (now § 740.9(b)(1)(iv)) and one footnote to paragraph (a)(1) in GFT (now § 740.12(a)(1)) were inadvertently omitted. This rule reinserts the footnote by “Commerce Form 7513” in § 740.9(b)(1)(iv) and the footnote by “gift parcel” in § 740.12(a)(1)). Part 740—Removal of Certain Countries from Country Group D Country Group D, as found in Supplement No. 1 to part 740, contains countries listed as countries of concern due to national security, nuclear, chemical and biological, and/or missile technology reasons. An “x” in a particular column indicates the reason(s) that applies to a particular country. On August 5, 1997, BIS (then BXA) published a final rule (62 FR 42047) which removed the “x” in the D:2 column for Algeria, Andorra, Comoros, Djibouti, Micronesia, and Vanuatu, to reflect their status as signatories of the Nuclear Non-Proliferation Treaty. As a result of that rule, those six countries did not have an “x” in any of the columns in Country Group D. However, the rule did not remove those countries' names from the list of countries in that country group. Therefore, this rule removes references to those six countries from Country Group D. Part 744—Formatting Corrections On June 19, 2007, BIS published a revision and clarification of export and reexport controls for the People's Republic of China (PRC). In that final rule, certain changes to part 744 did not format correctly. Specifically, paragraph (1)(ii) of Supplement No. 2 contained measurements that appeared in the **Federal Register** as “3.18×106m” and “7.62×104m” and paragraphs
(3)and
(5)of Supplement No. 2 contained mislabeled sub-paragraph numbers. This rule corrects those measurements to read “3.18 × 10 6 m” and “7.62 × 10 4 m” respectively, and it renumbers the sub-paragraphs of paragraphs
(3)and (5). Part 745—Legal Authorities Correction On November 30, 2007, BIS published a final rule (72 FR 67636) updating the statements of legal authority for the EAR. This rule makes a correction to the authority for part 745 by removing “Notice of October 27, 2006, 71 FR 64109 (October 31, 2006)” and adding “Notice of November 8, 2007, 72 FR 63963 (November 13, 2007)” in its place. This correction makes no changes to the text of the EAR. Part 746—Removal of Libya Reference and Revision to Iran Provisions Section 746.1(a)(1) currently reads “most other items * * * designated * * * ‘EAR99’, require a license to Cuba or Libya.” On August 31, 2006, BIS published an interim final rule (71 FR 51714) that amended the EAR to allow EAR99 items to be exported or reexported to Libya without a license, subject to the end-user and end-use controls in part 744 of the EAR. As a result, this rule removes “Libya” from the second sentence of § 746.1(a)(1). Part 748—Requesting Approval Via Fax to Submit Applications Electronically Section 748.7(a) describes the authorization procedures by which an applicant may request approval to apply electronically for a license or classification request. Currently, § 748.7(a)(1) only allows submission of written requests for approval to submit applications and requests electronically to certain addresses listed in § 748.2(c). This rule amends § 748.7(a)(1) to include submission of written requests via fax, which will conform to actual practice. Part 748—Clarification of Import Certificate and End-User Statement Requirements On June 19, 2007, BIS published a final rule (72 FR 33646) that changed the requirements for submitting either an Import Certificate or an End-User Statement. This rule amends §§ 748.10(a) and 748.10(b) to clarify the applicability of the $50,000 threshold. For exports to countries listed in § 748.9(b)(2), an Import Certificate is required for commodities controlled for national security
(NS)reasons for transactions valued over $50,000. For exports to the PRC, an End-User Statement is required for transactions exceeding $50,000 involving most commodities that require a license to the PRC for any reason. Exceptions to the $50,000 threshold for certain exports to the PRC have been consolidated into new § 748.10(b)(3). This rule does not add any additional requirements for Import Certificates or End-User Statements; it only reorganizes the existing provisions to enhance clarity. Furthermore, this rule corrects § 748.10(b)(4) to remove “software” from the first sentence. As noted in § 748.9(a)(7), support documents are not required for license applications involving the export or reexport of software or technology. On September 22, 1998, BIS published an interim rule (63 FR 50516) which clarified “a long-standing policy that no support documentation is required for exports of technology or software.” That rule removed references to the exports of technology or software to certain destinations in § 748.10(b)(1) but did not remove the reference to software in § 748.10(b)(4). Part 748—Changes to Validated End-User
(VEU)Reporting Requirements and to the Contact Information for the Ministry of Commerce of the PRC [?USGPO Galley End:?] This final rule amends § 748.15(f)(1)(i) to no longer require exporters to submit the reports required under that section for VEUs because BIS already has access to that information. However, reexporters must continue to submit the annual reports as required by that section. Also, this final rule updates the contact information for the Ministry of Commerce, Department of Mechanic, Electronic and High Technology Industries of the PRC in Supplement No. 4 to part 748. Part 750—Technical Correction to Shipping Tolerances According to § 750.11(b)(1), items licensed by dollar value have no shipping tolerance in that one may not ship more than the total dollar value that is stated on the license. To determine if an item is license by dollar value, one may look to the “Unit” paragraph in the ECCN entry of the item. However, paragraph (b)(1) shows “§ value” as the appropriate indicator in the “Unit” paragraph to designate whether the item is licensed by dollar value. This rule changes “§ value” to the appropriate designation of dollar value, which is “$ value”. Part 774—Citation Corrections in ECCNs 2B999, 9E001, and 9E002 Export Control Classification Number
(ECCN)2B999 lists multiple ECCNs under Related Controls. ECCNs listed under Related Controls are cross-references to similar items that readers of the EAR need to be aware of when determining the proper classification of their item. One such ECCN listed under Related Controls in ECCN 2B999 is ECCN 1B109. However, ECCN 1B109 does not exist on the Commerce Control List. This rule corrects that citation by replacing that ECCN with 2B109. Moreover, the headings of ECCNs 9E001 and 9E002 reference ECCN 9A001.c, which does not exist. On July 15, 2005, BIS published a final rule (70 FR 41094) that redesignated ECCN 9A001.c as ECCN 9A001.b. In order to reflect that change, this rule removes the references to “9A001.c” in ECCNs 9E001 and 9E002 and replaces those references with “9A001.b.” In addition, this rule makes the following correction to the Defense Priorities and Allocations System
(DPAS)Regulation: Part 700—Defense Priorities and Allocations System
(DPAS)Technical Correction This rule changes the name “Office of Clearance and Support,” referenced in § 700.21(a), to “Office of Electricity Delivery and Energy Reliability” to reflect the Department of Energy office currently assigned with the responsibility for reviewing applications for priority rating authority for projects believed to maximize domestic energy supplies. Also, this rule removes an erroneous reference in § 700.21(a) to DOE Form PR 437. The Department of Energy no longer uses DOE Form PR 437. Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 15, 2007, 72 FR 46137 (August 16, 2007), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. Rulemaking Requirements 1. This final rule has been determined to be not significant for purposes of E.O. 12866. 2. Notwithstanding any other provision of 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 of 1995 (44 U.S.C. 3501 *et seq.* ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget
(OMB)Control Number. This rule involves a collection of information subject to the requirements of the PRA. This collection has previously been approved by OMB under control number 0694-0088 (Multi-Purpose Application), which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Miscellaneous and recordkeeping activities account for 12 minutes per submission. BIS expects that this rule will not change that burden hour estimate. 3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132. 4. BIS finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment for all provisions except those amendments to part 748 of the EAR related to VEU reporting requirements because it is unnecessary. These revisions are administrative in nature and do not affect the rights and obligations of the public. Because these revisions are not substantive changes to the EAR and to the DPAS, it is unnecessary to provide notice and opportunity for public comment. In addition, the 30-day delay in effectiveness required by 5 U.S.C. 553(d) is not applicable because this rule is not a substantive rule. No other law requires that notice of proposed rulemaking and an opportunity for public comment be given for this rule. BIS finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act requiring notice and the opportunity for public comment on the provision that amends Part 748 of the EAR related to VEU reporting requirements because it is unnecessary and contrary to the public interest. This rule amends the EAR to no longer require exporters to submit the reports required under § 748.15(f)(1)(i) for VEUs because BIS already requires the submission of that same information, and has access to that information, through other means. In order to eliminate any redundancy in the collection of this information, BIS amends its regulations to eliminate the submission of these reports. In addition, the 30-day delay in effectiveness required by 5 U.S.C. 553(d) is waived for good cause because the delay is contrary to the public interest. As stated above, BIS already requires the submission of information contained in the reports required under § 748.15(f)(1)(i) for VEUs, and has access to that information, through other means. In order to eliminate any redundancy in the collection of this information, BIS amends its regulations to eliminate the submission of these reports. No other law requires that notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) are not applicable. Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Steven Emme, Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, Room 2705, 14th Street and Pennsylvania Ave., NW., Washington, DC 20230. List of Subjects 15 CFR Part 700 Administrative practice and procedure, Business and industry, Government contracts, National defense, Reporting and recordkeeping requirements, Strategic and critical materials. 15 CFR Parts 740, 748, and 750 Administrative practice and procedure, Exports, Reporting and recordkeeping requirements. 15 CFR Part 744 Exports, Reporting and recordkeeping requirements, Terrorism. 15 CFR Part 745 Administrative practice and procedure, Chemicals, Exports, Foreign trade, Reporting and recordkeeping requirements. 15 CFR Parts 746 and 774 Exports, Reporting and recordkeeping requirements. Accordingly, part 700 of the Defense Priorities and Allocations System Regulation (15 CFR part 700) and parts 730, 740, 743, 744, 745, 746, 748, 750, 752, 754, and 774 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows: PART 700—[AMENDED] 1. The authority citation for 15 CFR part 700 continues to read as follows: Authority: Titles I and VII of the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061, *et seq.* ), Title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195, *et seq.* ), Executive Order 12919, 59 FR 29525, 3 CFR, 1994 Comp. 901, and Executive Order 13286, 68 FR 10619, 3 CFR, 2003 Comp. 166; section 18 of the Selective Service Act of 1948 (50 U.S.C. App. 468), 10 U.S.C. 2538, 50 U.S.C. 82, and Executive Order 12742, 56 FR 1079, 3 CFR, 1991 Comp. 309; and Executive Order 12656, 53 FR 226, 3 CFR, 1988 Comp. 585. 2. Section 700.21 is amended by revising paragraph
(a)to read as follows: § 700.21 Application for priority rating authority.
(a)For projects believed to maximize domestic energy supplies, a person may request priority rating authority for scarce, critical, and essential supplies of materials, equipment, and services (related to the production of materials or equipment, or the installation, repair, or maintenance of equipment) by submitting a request to the Department of Energy. Further information may be obtained from the U.S. Department of Energy, Office of Electricity Delivery and Energy Reliability, 1000 Independence Avenue, SW., Washington, DC 20585. PART 730—[AMENDED] 3. The authority citation for 15 CFR part 730 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 2151 note; 22 U.S.C. 3201 *et seq.* ; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; 22 U.S.C. 7201 *et seq.* ; 22 U.S.C. 7210; E.O. 11912, 41 FR 15825, 3 CFR, 1976 Comp., p. 114; E.O. 12002, 42 FR 35623, 3 CFR, 1977 Comp., p.133; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12214, 45 FR 29783, 3 CFR, 1980 Comp., p. 256; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12854, 58 FR 36587, 3 CFR, 1993 Comp., p. 179; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p. 899; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 12981, 60 FR 62981, 3 CFR, 1995 Comp., p. 419; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp. p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p.208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; E.O. 13338, 69 FR 26751, May 13, 2004; Notice of August 15, 2007, 72 FR 46137 (August 16, 2007); Notice of November 8, 2007, 72 FR 63963 (November 13, 2007). 4. Section 730.8 is amended by revising the third location entry at the end of paragraph
(c)for the “U.S. Export Assistance Center” to read as follows: § 730.8 How to proceed and where to get help.
(c)* * * U.S. Export Assistance Center, Bureau of Industry and Security, 160 W. Santa Clara Street, Suite 725, San Jose, California 95113, Tel:
(408)998-8805 or
(408)998-8806, Fax:
(408)998-8677. 5. Supplement No. 2 to part 730—Technical Advisory Committees, is amended by revising the first sentence of paragraph (b)(1) to read as follows: Supplement No. 2 to Part 730—Technical Advisory Committees
(b)* * *
(1)*Form and substance of requests.* Each request for the appointment of a TAC shall be submitted in writing via courier to: Room 2705, 14th Street and Pennsylvania Ave., NW., Washington, DC 20230. * * * PART 734—[AMENDED] 6. The authority citation for 15 CFR part 734 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp. p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 15, 2007, 72 FR 46137 (August 16, 2007); Notice of November 8, 2007, 72 FR 63963 (November 13, 2007). 7. Supplement No. 1 to part 734 is amended by revising the last sentence in the second paragraph of the “Answer” to “Question D(3)” of Section D: Research, Correspondence, and Informal Scientific Exchanges, to read as follows: Supplement No. 1 to Part 734—Questions and Answers—Technology and Software Subject to the EAR *Section D: Research, Correspondence, and Informal Scientific Exchanges* *Question D(3): * * ** *Answer:* * * * Send written communications, via courier, to: Department of Commerce, Bureau of Industry and Security, Room 2705, 14th Street and Pennsylvania Ave., NW., Washington, DC 20230. PART 740—[AMENDED] 8. The authority citation for 15 CFR part 740 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 22 U.S.C. 7201 *et seq.* ; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 9. Section 740.9(b)(1)(iv) is amended: a. By revising the last two sentences as set forth below; and b. By adding footnote 1, to read as follows: § 740.9 Temporary imports, exports, and reexports (TMP).
(b)* * *
(1)* * *
(i)* * *
(ii)* * *
(iii)* * *
(iv)* * * The commodity or software description, quantity, ultimate consignee, country of ultimate destination, and all other pertinent details of the shipment must be the same on a required Form B-13, as on Commerce Form 7513, 1 or when Form 7513 is not required, must be the same as on Customs Form 7512. When there is a material difference, a corrected Form B-13 authorizing the shipment is required. 1 The complete names of these forms are: Commerce Form 7513, “Shipper's Export Declaration for Intransit Goods”; Customs Form 7512, “Transportation Entry and Manifest of Goods Subject to Customs Inspection and Permit”. 10. Section 740.12(a)(1) is amended: a. By revising the last sentence as set forth below; and b. By adding footnote 2 to read as follows: § 740.12 Gift parcels and humanitarian donations (GFT).
(a)* * *
(1)* * * However, payment by the donee of any handling charges or of any fees levied by the importing country (e.g., import duties, taxes, etc.) is not considered to be a cost to the donee for purposes of this definition of “gift parcel.” 2 2 Many foreign countries permit the entry, duty-free, of gift parcels that conform to regulations regarding contents and marking. To secure this advantage, the sender should show the words “U.S.A. Gift Parcel” on the addressee side of the package and on any required customs declarations. Information regarding the foreign postal regulations is available at local post offices. Senders of gift parcels who wish information regarding import duties of a foreign country should contact the nearest Commercial Office, Consulate or Embassy of the country concerned. § 740.13 [Amended] 11. Section 740.13(d)(1) is amended by redesignating footnote “1” as footnote “3”. § 740.15 [Amended] 12. Section 740.15(c)(1) is amended by redesignating footnote “6” as footnote “4”, and § 740.15(c)(2) is amended by redesignating footnote “7” as footnote “5”. Supplement No. 1 to Part 740 [Amended] 13. Supplement No. 1 to Part 740—Country Groups is amended by removing the rows labeled “Algeria”, “Andorra”, “Comoros”, “Djibouti”, “Micronesia”, and “Vanuatu” in the table titled “Country Group D”. PART 743—[AMENDED] 14. The authority citation for 15 CFR part 743 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq* ; Pub. L. 106-508; 50 U.S.C. 1701 *et seq* ; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 15. Section 743.1 is amended by revising paragraph (g)(1) to read as follows: § 743.1 Wassenaar Arrangement.
(g)* * *
(1)Two
(2)copies of reports required under this section shall be delivered via courier to: Bureau of Industry and Security, U.S. Department of Commerce, Attn: “Wassenaar Reports”, Room 2705, 14th Street and Pennsylvania Ave., NW., Washington, DC 20230. BIS will not accept reports sent C.O.D. 16. Section 743.2 is amended by revising paragraph
(d)to read as follows: § 743.2 High performance computers: Post shipment verification reporting.
(d)*Address.* A copy of the post-shipment report(s) required under paragraph
(b)of this section shall be delivered, via courier, to: U.S. Department of Commerce, Office of Enforcement Analysis, HPC Team, 14th Street and Constitution Ave., NW., Room 4065, Washington, DC 20230. Note that BIS will not accept reports sent C.O.D. PART 744—[AMENDED] 17. The authority citation for 15 CFR part 740 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 22 U.S.C. 3201 *et seq.* ; 42 U.S.C. 2139a; 22 U.S.C. 7201 *et seq.* ; 22 U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice of August 15, 2007, 72 FR 46137 (August 16, 2007); Notice of November 8, 2007, 72 FR 63963 (November 13, 2007). 18. Paragraph (1)(ii) of Supplement No. 2 to part 744 is amended: a. By removing the term “3.18 x 106m” and adding “3.18 x 10 6 m” in its place; and b. By removing the term “7.62 x 104m” and adding “7.62 x 10 4 m” in its place. c. By redesignating paragraph (3)(iii) as paragraph (3)(ii); d. By redesignating paragraph (3)(ii) as paragraph (3)(iii); e. By removing the word “that” in newly designated paragraph (3)(iii) and adding the word “than” in its place; f. By adding a quotation mark immediately after the word “production” in paragraph (5)(ii); and g. By redesignating paragraph (5)(v) as paragraph (5)(iii). PART 745—[AMENDED] 19. The authority citation for 15 CFR part 745 is revised to read as follows: Authority: 50 U.S.C. 1701 *et seq.* ; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; Notice of November 8, 2007, 72 FR 63963 (November 13, 2007). PART 746—[AMENDED] 20. The authority citation for 15 CFR part 746 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 22 U.S.C. 287c; Sec 1503, Pub. L. 108-11, 117 Stat. 559; 22 U.S.C. 6004; 22 U.S.C. 7201 *et seq.* ; 22 U.S.C. 7210; E.O. 12854, 58 FR 36587, 3 CFR, 1993 Comp., p. 614; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p. 899; E.O. 13222, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; Presidential Determination 2007-7 of December 7, 2006, 72 FR 1899 (January 16, 2007); Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). § 746.1 [Amended] 21. Section 746.1 is amended by removing the words “or Libya” from the second sentence of paragraph (a)(1). PART 748—[AMENDED] 22. The authority citation for 15 CFR part 748 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 23. Section 748.2 is amended by: a. Revising the third location entry in paragraph
(a)for the “U.S. Export Assistance Center,”; and b. Revising paragraph (c). The revisions read as follows: § 748.2 Obtaining forms; mailing addresses.
(a)* * * U.S. Export Assistance Center, Bureau of Industry and Security, 160 W. Santa Clara Street, Suite 725, San Jose, CA 95113, Tel:
(408)998-8805 or
(408)998-8806, Fax:
(408)998-8677.
(c)To submit your application using an overnight courier, use the following address: Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Pennsylvania Ave. NW., Room 2705, Washington, DC 20044, Attn: “Application Enclosed”. BIS will not accept applications sent C.O.D. 24. Section 748.7 is amended by revising the first sentence of paragraph (a)(1) to read as follows: § 748.7 Applying electronically for a license or classification request. [?USGPO Galley End:?]
(a)* * *
(1)*Requesting approval to submit applications electronically.* To submit applications electronically, your company must submit a written request to BIS. Written requests may be faxed to
(202)219-9179 or
(202)219-9182 (Washington, DC), faxed to
(949)660-9347 (Newport Beach, CA), or submitted to one of the addresses identified in § 748.2(c) of this part. * * * 25. Section 748.10 is amended: a. By revising the fourth and fifth sentences and adding a new sixth sentence to paragraph
(a)as set forth below; and b. By revising paragraph (b), to read as follows: § 748.10 Import Certificates and End-User Statements.
(a)*Scope* . * * * This section describes exceptions and relationships for both Import Certificates and End-User Statements, and generally applies only to transactions exceeding $50,000. In the case of countries identified in § 748.9(b)(2) of this part (excluding the People's Republic of China (PRC)), Import Certificates are required for national security controlled items in transactions exceeding $50,000. In the case of the PRC, End-User Statements are required for transactions exceeding $50,000 involving all items that require a license to the PRC for any reason. However, this $50,000 threshold is lower for certain exports to the PRC (see paragraph (b)(3) of this section).
(b)*Import Certificate or End-User Statement* . Unless your transaction meets one of the exemptions stated in § 748.9(a) of this part, an Import Certificate or End-User Statement must be obtained, if:
(1)Any commodities on your license application are controlled for national security
(NS)reasons (except for items controlled under ECCNs 5A002 or 5B002), or any commodities to the PRC on your license application are controlled for any reason;
(2)The ultimate destination is a country listed in § 748.9(b)(2) of this part; and
(3)Your license application involves the export of commodities classified in a single entry on the CCL, and your ultimate consignee is in any destination listed in § 748.9(b)(2), and the total value of your transaction exceeds $50,000. Note that the $50,000 transaction threshold does not apply to certain exports to the PRC. If your transaction involves an export to the PRC of a computer that requires a license for any reason, an End-User Statement is required regardless of dollar value. Also, if your transaction involves an export to the PRC of an item classified under ECCN 6A003 that requires a license for any reason, an End-User Statement is required for transactions exceeding $5000.
(i)Your license application may list several separate CCL entries. If any individual entry including an item that is controlled for national security reasons exceeds $50,000, then an Import Certificate must be obtained covering all items controlled for national security reasons on your license application. If the total value of entries on a license application that require a license to the PRC for any reason listed on the CCL exceeds $50,000, then a PRC End-User Statement covering all such controlled items that require a license to the PRC on your license application must be obtained;
(ii)If your license application involves a lesser transaction that is part of a larger order for items controlled for national security reasons (or, for the PRC, for any reason) in a single ECCN exceeding $50,000, an Import Certificate, or a PRC End-User Statement, as appropriate, must be obtained.
(iii)You may be specifically requested by BIS to obtain an Import Certificate for a transaction valued under $50,000. You also may be specifically requested by BIS to obtain an End-User Statement for a transaction valued under $50,000 or for a transaction that requires a license to the PRC for reasons in the EAR other than those listed in the CCL. 26. Section 748.15 is amended: a. By revising the last two sentences of paragraph (a)(1) as set forth below; b. By removing the phrase “Exporters and reexporters” at the beginning of the first sentence of paragraph (f)(1)(i) introductory text and adding “Reexporters” in its place; c. By removing the phrase “exported or” in paragraph (f)(1)(i)(A); and d. By removing the phrase “exported or” in paragraph (f)(1)(i)(B). [?USGPO Galley End:?] § 748.15 Authorization Validated End-User (VEU).
(a)* * *
(1)* * * Submit the request to: The Office of Exporter Services, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230. Mark the package “Request for Authorization Validated End-User.” 27. Supplement No. 4 to part 748 is amended by revising the “IC/DV authorities” column entry for “China, People's Republic of” to read as follows: Supplement No. 4 to Part 748—Authorities Administering Import Certificate/Delivery Verification (IC/DV) and End-User Statement Systems in Foreign Countries Country IC/DV authorities System administered * * * * * * * China, People's Republic of Ministry of Commerce; Department of Mechanic, Electronic and High Technology Industries; Export Control Division I; Chang An Jie No. 2; Beijing 100731 China; Phone: (86)(10) 6519 7366 or 6519 7390; Fax: (86)(10) 6519 7543; *http://cys.mofcom.gov.cn/ag/ag.html* PRC, End-User Statement 28. Supplement No. 5 to part 748 is amended by revising paragraph (a)(2)(i) to read as follows: Supplement No. 5 to Part 748—U.S. Import Certificate and Delivery Verification Procedure
(a)* * *
(2)* * *
(i)By courier to the Bureau of Industry and Security, Room 2705, 14th Street and Pennsylvania Ave., NW., Washington, DC 20230, Attn: Import Certificate Request; or PART 750—[AMENDED] 29. The authority citation for 15 CFR part 750 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; Sec 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). § 750.11 [Amended] 30. Section 750.11(b)(1) is amended by removing the phrase “§ value” at both places where it appears and adding the term “$ value” in its places. PART 752—[AMENDED] 31. The authority citation for 15 CFR part 752 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp. p. 219; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 32. Section 752.17 is revised to read as follows: § 752.17 BIS address. You should use the following address when submitting to BIS applications, reports, documentation, or other requests required in this part 752, via courier: Bureau of Industry and Security, U.S. Department of Commerce, 14th and Pennsylvania Ave., NW., Room 2705, Washington, DC 20230, “Attn: Special Licensing and Compliance Division”. You may also reach the Special Licensing and Compliance Division by phone at
(202)482-0062 or by fax at
(202)501-6750. PART 754—[AMENDED] 33. The authority citation for 15 CFR part 754 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 30 U.S.C. 185(s), 185(u); 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; E.O. 11912, 41 FR 15825, 3 CFR, 1976 Comp., p. 114; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 34. Section 754.2 is amended: a. By revising paragraph (g)(1) as set forth below; b. By removing the term “License Exceptions TAPS” in the first sentence of paragraph (j)(2) and adding “License Exception TAPS” in its place; and c. By revising the second sentence of paragraph (j)(2) as set forth below: § 754.2 Crude oil.
(g)* * *
(1)Applicants must submit their applications, via courier, on Form BIS-748 to the following address: Office of Exporter Services, ATTN: Short Supply Program—Petroleum, Bureau of Industry and Security, U.S. Department of Commerce, 14th and Pennsylvania Ave., NW., Room 2705, Washington, DC 20230.
(j)* * *
(2)* * * The SED or AES record shall be sent, via courier, to the following address: Director, Deemed Exports and Electronics Division, Office of National Security and Technology Transfer Controls, Bureau of Industry and Security, U.S. Department of Commerce, 14th and Pennsylvania Ave., NW., Room 2705, Washington, DC 20230. 35. Section 754.6 is amended by revising paragraph
(c)to read as follows: § 754.6 Registration of U.S. agricultural commodities for exemption from short supply limitations on export.
(c)*Address* . Submit applications pursuant to the provisions of section 7(g) of the EAA, via courier, to: Bureau of Industry and Security, U.S. Department of Commerce, 14th and Pennsylvania Ave., NW., Room 2705, Washington, DC 20230. 36. Section 754.7 is amended by revising paragraph
(d)to read as follows: § 754.7 Petitions for the imposition of monitoring or controls on recyclable metallic materials; Public hearings.
(d)*Address* . Submit petitions pursuant to section 7(c) of the EAA, via courier, to: Bureau of Industry and Security, U.S. Department of Commerce, 14th and Pennsylvania Ave., NW., Room 2705, Washington, DC 20230. PART 774—[AMENDED] 37. The authority citation for 15 CFR part 774 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 *et seq.* , 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; 22 U.S.C. 7201 *et seq.* ; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 38. In Supplement No. 1 to part 774 (the Commerce Control List), Category 1—Materials, Chemicals, “Microorganisms” & “Toxins”, Export Control Classification Number
(ECCN)1C350 is amended by revising the last sentence of paragraph 1.e. in the “License Requirement Notes” section to read as follows: Supplement No. 1 to Part 744—The Commerce Control List Category 1—Materials, Chemicals, “Microorganisms” & “Toxins” 1C350 Chemicals that may be used as precursors for toxic chemical agents. License Requirement Notes 1. * * * a. * * * b. * * * c. * * * d. * * * e. * * * The report must be sent, via courier, to the U.S. Department of Commerce, Bureau of Industry and Security, 14th and Pennsylvania Ave., NW., Room 2705, Washington, DC 20230, Attn: “Report of Sample Shipments of Chemical Precursors”. 39. In Supplement No. 1 to part 774 (the Commerce Control List), Category 2—Materials Processing, Export Control Classification Number
(ECCN)2B999 is amended by revising the “Related Controls” paragraph of the “List of Items Controlled” section to read as follows: Supplement No. 1 to Part 744—The Commerce Control List Category 2—Materials Processing 2B999 Specific processing equipment, n.e.s., as follows (see List of Items Controlled). List of Items Controlled *Unit:* * * * *Related Controls:* See also 0B001, 0B002, 0B004, 1B233, 2A293, 2B001.f, 2B004, 2B009, 2B104, 2B109, 2B204, 2B209, 2B228, 2B229, 2B231, 2B350. 40. In Supplement No. 1 to part 774 (the Commerce Control List), Category 9—Aerospace and Propulsion, Export Control Classification Number
(ECCN)9E001 is amended by revising the Heading and “License Requirements” section to read as follows: Supplement No. 1 to Part 744—The Commerce Control List Category 9—Aerospace and Propulsion 9E001 “Technology according to the General Technology Note for the “development” of equipment or “software” controlled by 9A001.b, 9A004 to 9A012, 9B (except 9B990 or 9B991), or 9D (except 9D990 or 9D991). License Requirements *Reason for Control:* NS, MT, AT Control(s) Country chart NS applies to “technology” for items controlled by 9A001.b, 9A012, 9B001 to 9B010, 9D001 to 9D004 for NS reasons NS Column 1. * * * 41. In Supplement No. 1 to part 774 (the Commerce Control List), Category 9—Aerospace and Propulsion, Export Control Classification Number
(ECCN)9E002 is amended by revising the Heading to read as follows: Supplement No. 1 to Part 744—The Commerce Control List Category 9—Aerospace and Propulsion 9E002 “Technology” according to the General Technology Note for the “production” of equipment controlled by 9A001.b, 9A004 to 9A011 or 9B (except 9B990 or 9B991). Dated: December 21, 2007. Matthew S. Borman, Deputy Assistant Secretary for Export Administration. [FR Doc. E7-25423 Filed 12-31-07; 8:45 am] BILLING CODE 3510-33-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 38 and 284 [Docket Nos. RM96-1-028 and RM05-5-004; Order No. 698-A] Standards for Business Practices for Interstate Natural Gas Pipelines; Standards for Business Practices for Public Utilities Issued December 20, 2007. AGENCY: Federal Energy Regulatory Commission, Department of Energy. ACTION: Order on clarification and rehearing. SUMMARY: This order denies requests for rehearing, and provides clarification of the final rule issued on July 16, 2007 that incorporated by reference standards dealing with coordination of scheduling between electric utilities and natural gas pipelines that were promulgated by the Wholesale Gas Quadrant
(WGQ)and the Wholesale Electric Quadrant
(WEQ)of the North American Energy Standards Board (NAESB), and provided policy guidance on issues relating to such coordination. DATES: *Effective Date:* January 2, 2008. FOR FURTHER INFORMATION CONTACT: Eric Winterbauer (Legal), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, 202-502-8329. Susan Pollonais (Technical), Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, 202-502-6011. Kay Morice (Technical), Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, 202-502-6507. Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff. 1. On June 25, 2007, the Federal Energy Regulatory Commission (Commission) issued Order No. 698, 1 in which the Commission amended parts 38 and 284 of its open access regulations governing standards for business practices and electronic communications with public utilities and interstate natural gas pipelines. The Commission incorporated by reference certain standards promulgated by the North American Energy Standards Board (NAESB) 2 in order to improve coordination between the electric and gas industries. Specifically, the Commission sought to improve communications about scheduling of gas-fired generators. 1 *Standards for Business Practices for Interstate Natural Gas Pipelines; Standards for Business Practices for Public Utilities* , Order No. 698, 72 FR 38757 (July 16, 2007) FERC Statutes and Regulations ¶ 31,251 (June 25, 2007). 2 The standards for the Wholesale Electric Quadrant are: Gas/Electric Coordination Standards WEQ-011-0.1 through WEQ-011-0.3 and WEQ-011-1.1 through WEQ-011-1.6. The standards for the Wholesale Gas Quadrant are: Additional Standards, Definitions 0.2.1 through 0.2.3 and Standards 0.3.11 through 0.3.15. 2. In addition, the Commission provided policy guidance on issues raised by NAESB relating to scheduling coordination and to the possible development of additional standards by NAESB. First, the Commission discussed the use of gas indices for pricing capacity release transactions, stating that the Commission's regulations permit releasing shippers to use price indices or other formula rates on all pipelines, regardless of whether the pipeline has a provision allowing the use of indices as part of its discounting provisions, so long as the prices are less than the maximum rate in the pipeline's tariff. 3 Second, the Commission discussed, but did not modify, the shipper's ability to choose alternate delivery points, stating that the ability to shift a delivery point when a pipeline constraint occurs upstream would make it easier for shippers to redirect gas supplies to generators when capacity is scarce. Lastly, the Commission discussed possible changes to the gas intraday nomination schedule, clarifying that NAESB should actively consider whether changes to existing intra-day schedules would benefit all shippers. 3 Order No. 698, FERC Statutes and Regulations ¶ 31,251 at P 55. I. Requests for Rehearing 3. The Interstate Natural Gas Association of America (INGAA) requests clarification, or in the alternative rehearing, on the date pipelines are required to implement changes with regard to the three issues on which the Commission provided guidance. INGAA notes that industry participants were required to implement the NAESB standards by November 1, 2007, and requests that the Commission clarify that it would be appropriate for NAESB to propose additional standards and then for the Commission to have another rulemaking proceeding before pipelines are required to implement changes. 4. Specifically, with regard to capacity release, INGAA notes that in the Final Rule the Commission acknowledges that NAESB may need to develop standards to ensure that the terms and conditions of a release and the means of implementing a formula rate are clearly set out. 4 INGAA contends that prior to Order No. 698, the Commission's regulations were never interpreted to allow unrestricted pricing in capacity release transactions. INGAA argues that while pipelines had the ability to file non-conforming agreements, there was never a policy in place for releasing shippers to file non-conforming capacity release agreements based on index-based rates. INGAA further contends that pipelines are not currently equipped to allow unrestricted pricing in capacity release transactions, and that requiring them to do so raises implementation issues concerning bid evaluation and awards, scheduling and billing. 4 *Id.* at P 56. 5. INGAA further contends that unrestricted pricing in releases raises scheduling priority issues. It argues that index-based or other formula prices raise the issue of how such prices can be compared to a fixed, discounted rate for scheduling purposes. INGAA adds that the Commission should be aware that, depending on the rate formula utilized, there may be several methodologies that can be used to determine a rate for scheduling purposes and that one methodology may favor some shippers over others. 6. INGAA requests that the Commission clarify the procedures needed for pipeline billing of capacity release transactions that use index-based or formula rates. INGAA argues that pipelines should not be required to calculate the rates under such pricing mechanisms, nor should pipelines be placed in the position of arbitrating disputes between a releasing shipper and a replacement shipper about the rate to be charged under the formula used. INGAA requests that the Commission clarify that
(1)in any release that does not utilize a fixed stated rate, the releasing shipper must inform the pipeline of the rate to be charged to the replacement shipper in time for the pipeline to bill such rate; and
(2)the pipeline is entitled to rely on the rate provided by the releasing shipper such that the only recourse a replacement shipper has if it disagrees with such rate is against the releasing shipper. INGAA adds that pipelines should not be required to determine the rate to be charged under such releases or be placed in the middle of disputes between its shippers and their replacement shippers over such rates. 5 5 INGAA Request for Rehearing at 6. 7. INGAA also requests that the Commission clarify when pipelines are required to implement changes regarding intra-day scheduling, and that, rather, it is appropriate to wait for NAESB to consider any industry-wide standards. 6 6 *Id.* at 7. 8. INGAA requests that the Commission clarify that Order No. 698 does not require pipelines to convey any non-public information. As an example, INGAA states that information concerning a pipeline's methods for dealing with hourly flow variances, the administration of operational balancing agreements, the operation of compressor units, and the operation of meter stations, all on a real-time or nearly real-time basis, may be implicated by or be part of, the required communications discussed in the Order No. 698. INGAA states that this information is not public information, which pipelines do not usually communicate. 9. The American Gas Association
(AGA)filed an answer. II. Discussion A. Procedural Matters 10. We reject AGA's answer. Rule 713 of the Commission's Rules of Practice and Procedures does not allow answers to requests for rehearing. 7 7 18 CFR 385.713(d) (2007). Indexed Releases Relation to NAESB Standards Development 11. INGAA requests clarification or in the alternative rehearing, arguing that pipelines should not have to permit shippers to use gas price indices as part of released transactions until NAESB develops standards for using price indices and they are adopted by the Commission. The Commission denies the clarification and the alternative rehearing request. 12. As we explained in Order No. 698, our existing regulations already permit releasing shippers to use price indices or other formula rates on all pipelines, regardless of whether the pipeline has included a provision allowing the use of indices as part of its discounting provisions, so long as the prices are less than the maximum rate in the pipeline's tariff. 8 Section 284.8(b) 9 of the Commission's regulations states that “firm shippers must be permitted to release their capacity, in whole or in part, on a permanent or short-term basis, without restrictions on the terms or conditions of the release,” and section 284.8(e) 10 mandates that such a release may not be “over the maximum rate.” Releasing shippers are permitted under these regulations to set the appropriate price governing the release. In Order No. 698, we did not impose any additional regulatory requirements on the pipelines, and therefore we find no basis to delay implementation of our existing regulations. 8 In a Notice of Proposed Rulemaking, the Commission has proposed to lift the price ceiling for short-term capacity releases. *Promotion of a More Efficient Capacity Release Market, Notice of Proposed Rulemaking* , 121 FERC ¶ 61,170 (2007). 9 18 CFR 284.8(b) (2007). 10 18 CFR 284.8(e) (2007). 13. INGAA maintains that the Commission's regulations were never previously interpreted to permit unrestricted pricing in capacity release transactions. INGAA cites no support for the proposition that the Commission did not interpret its regulations to permit pricing flexibility. In fact, in Order No. 636-A, the Commission explained that releasing shippers are not required to rely on default provisions in the pipeline's tariff, but can structure their own pricing terms: Due to the variety of releasing conditions that may exist, the Commission will not establish only one methodology for evaluating best bids, but will use the following approach. The pipeline's tariff must include an objective and non-discriminatory economic standard for determining best bids. Releasing shippers may rely upon this standard in structuring their capacity releases, but are not required to do so. If a releasing shipper does not specify a standard, the standard in the pipeline's tariff will apply. Releasing shippers may include in their offers to release capacity reasonable and non-discriminatory terms and conditions to accommodate individual release situations, including provisions for evaluating bids. 11 11 *Pipeline Service Obligations and Revisions to Regulations Governing Self-Implementing Transportation* , Order No. 636-A, 57 FR 36128 (Aug.12, 1992), FERC Statutes and Regulations January 1991—June 1996 ¶ 30,950, at 30,557 (Aug. 3, 1992). *See El Paso Natural Gas Co.* , 61 FERC ¶ 61,333, at 62,289 (1992). The Commission also has explained that these regulatory provisions provide releasing shippers with the flexibility to price using gas price indices. 12 12 *See Panhandle Eastern Pipe Line Co.* , 106 FERC ¶ 61,194, P 6 (2006); 14. Contrary to INGAA's implication, the Commission did not ask NAESB to develop standards for indexed releases because such releases were not previously permitted. In this proceeding, due to the interest by shippers in such releases, the Commission requested NAESB to consider developing standards to make these releases quicker and more efficient. 13 The existing WGQ NAESB standards recognize that non-standard pricing terms may be included in release transactions, but do not necessarily permit such releases to be accorded the same processing timeline as standard releases. 14 The Commission requested NAESB to consider standards that would create a standardized indexing methodology so that the use of indexed releases could become faster and could compete on a more equal footing with pipeline discounts and negotiated rate transactions. 13 Order No. 698, FERC Statutes and Regulations ¶ 31,251 at P 56. 14 Standards 5.3.1 and 5.3.3 (18 CFR 284.12(a)((1)(vi)) provide that as long as releasing shippers use defined, standard bid methodologies, the pipelines are required to adhere to the NAESB timelines in processing such bids. However, these standards recognize that the releasing shipper might elect other bid evaluation methodologies for which pipeline processing can take longer than the standard timelines. 15. INGAA suggests that permitting index pricing prior to the development of the NAESB standards may create difficulty in evaluating competing bids or completing the bid evaluation process in the time needed to implement the release. We do not find this to be a sufficient basis to delay shippers' ability to implement indexed releases to compete with the pipeline's use of such practices. The Commission required in Order No. 636 that the terms and conditions of all releases, including the methods for evaluating competing bids, must be objective, applicable to all shippers, and non-discriminatory. 15 The releasing shipper has the burden of ensuring that the bid evaluation method is clear enough for the pipeline to administer. Further, the standard capacity release timelines do not apply to bid evaluation methods that are out of the ordinary or difficult to apply. Releasing shippers that want indexed deals implemented expeditiously therefore have an incentive to ensure that their bid evaluation methodologies are relatively simple to apply. 15 Order No. 636-A, FERC Statutes and Regulations January 1991-June 1996 ¶ 30,950, at 30,557. 16. INGAA also maintains that allowing unrestricted pricing discretion may cause problems for some pipelines that use price to prioritize the scheduling of secondary firm transportation. 16 However, the Commission does not require that pipelines employ such a method for scheduling firm transportation, and we find that a possible inconvenience to some pipelines does not justify prohibiting releasing shippers from choosing pricing methods permitted by the regulations. Those pipelines that may have such provisions would either need to apply their priced-based scheduling provisions to those capacity release transactions that use index pricing or file under section 4 of the Natural Gas Act to amend their tariffs to provide for such scheduling. 17 16 The Commission requires pipelines to permit shippers, including replacement shippers, the flexibility to temporarily schedule the receipt and delivery of gas at points other than those listed in their contracts if capacity is available. 17 INGAA does not explain why the same procedures used to schedule pipeline index discount transactions and negotiated rate transactions, which employ a variety of pricing techniques, cannot be applied to capacity release transactions. 1. Billing Under Index-Priced Releases 17. INGAA requests that we clarify that in any release that does not utilize a fixed stated rate, the releasing shipper must inform the pipeline of the rate to be charged to the replacement shipper in time for the pipeline to bill such rate; and the pipeline is entitled to rely on the rate provided by the releasing shipper such that the only recourse a replacement shipper has if it disagrees with such rate is against the releasing shipper. 18. We will not permit pipelines to delay acceptance of index price deals on this basis. Pipelines ought to be able to calculate prices under index releases, because, as the Commission required in Order No. 636, the terms and conditions of such releases must be objective and clearly stated. Many pipelines also currently bill shippers under their own negotiated rate and index price transactions, and, therefore, should be able to calculate the rates under released transactions in the same way. However, if after experience with index releases, a pipeline believes that the volume of such releases or other conditions warrants revisions in the method used to bill for index releases, the pipeline may file under section 4 of the Natural Gas Act to propose such revisions, and the Commission will consider those changes after evaluating the position of the pipeline's shippers. B. Intra-Day Scheduling 19. INGAA also requests that we clarify that any changes regarding intra-day scheduling need not be implemented by November 1, 2007, and that instead it is appropriate for NAESB to consider and propose any industry-wide standards. We agree with INGAA. Order No. 698 did not adopt changes in the intra-day nomination timeline, so the November 1, 2007 deadline does not apply to any such change. While the Commission did not require the pipelines to make any changes in nomination schedules, we did indicate that such standards could be very beneficial to the industry and that pipelines with gas-fired generators should, on their own, consider the addition of other intra-day nomination opportunities that would be of benefit to the shippers. 18 Pipelines are free to propose additional intra-day nomination opportunities prior to any proposal by NAESB if they so choose. 18 Order No. 698, FERC Stats. & Regs. [Regulations Preambles] ¶ 31,251 at P 69. C. Non-Public Information 20. INGAA maintains that the Commission should clarify that Order No. 698 does not require pipelines to convey any non-public information as a result of the standards incorporated by reference in the Final Rule. In particular, INGAA points to information concerning a pipeline's methods for dealing with hourly flow variances, the administration of operational balancing agreements, the operation of compressor units, and the operation of meter stations. 21. INGAA does not point to which, if any, standards it believes would require the dissemination of this information, so we cannot provide a definitive answer. The standards themselves do not generally detail the type of information that should be provided. For example, it appears from the examples that INGAA may be referring to standard 0.3.12, which states that: “The Power Plant Operator
(PPO)and the Transportation Service Provider(s)
(TSP)that is directly connected to the PPO's Facility(ies) should establish procedures to communicate material changes in circumstances that may impact hourly flow rates.” This standard does not require the dissemination of detailed information about why the hourly flow rates are affected; it requires only that the pipeline establish communication procedures so that the power plant operator and the pipeline are made timely aware that such hourly flow changes may occur. Without a more detailed explanation of which other standards would require the disclosure of information that INGAA wishes to keep non-public, we cannot address this issue further. INGAA and the pipelines may bring any specific issue to the Commission's attention. *The Commission orders:* The requests for rehearing and clarification are resolved as discussed in the body of the order. By the Commission. Kimberly D. Bose, Secretary. [FR Doc. E7-25121 Filed 12-31-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2007-0146] RIN 1625-AA09 Drawbridge Operation Regulation; Milhomme Bayou, Stephensville, LA AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard is changing the regulation governing the operation of the Stephensville Bridge across Milhomme Bayou, mile 12.2, (Landside Route) at Stephensville, St. Martin Parish, Louisiana and canceling the test deviation concerning this bridge. Currently the bridge opens on signal, but due to the minimal waterway traffic, the bridge owner requested this change. The rule will require the draw of the bridge to open on signal if at least one hour of advance notice is given. During the advance notice period, the draw shall open on less than one hour notice for an emergency, and shall open on demand should a temporary surge in waterway traffic occur. DATES: This rule is effective February 1, 2008. The test deviation published on October 5, 2007, 72 FR 56898 is cancelled as of February 1, 2008. ADDRESSES: Comments and related materials received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket USCG-2007-0146. The docket is available at *http://www.regulations.gov* and will include any personal information you have provided. FOR FURTHER INFORMATION CONTACT: Bart Marcules, Bridge Administration Branch, telephone
(504)671-2128. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Regulatory Information On October 2, 2007, we published a notice of proposed rulemaking
(NPRM)entitled “Drawbridge Operation Regulations; Milhomme Bayou, Stephensville, LA” in the **Federal Register** (72 FR 56025). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held. Background and Purpose St. Martin Parish requested that the operating regulation on the Stephensville Bridge be changed in order to operate the bridge more efficiently. The Stephensville Bridge located on Milhomme Bayou at mile 12.2 (Landside Route of the Morgan City Port Allen Alternate Route) in Stephensville, St. Martin Parish, Louisiana has a vertical clearance of 5.8 feet above mean high water, elevation 3.5 feet Mean Sea Level
(MSL)in the closed position and unlimited clearance in the open position. The Stephensville Bridge opened on signal as required by 33 CFR 117.5; however, the waterway traffic is minimal and during the past twelve months an average of 5 boats per day have requested an opening. Most of the boats requesting openings are commercial vessels consisting of tugboats with barges and shrimp trawlers that routinely transit this waterway and are able to give advance notice. Concurrent with the publication of the Notice of Proposed Rulemaking concerning this schedule of operation, a Test Deviation was published on October 5, 2007, entitled “Drawbridge Operation Regulation; Milhomme Bayou, Stephensville, LA” in the **Federal Register** (72 FR 56898). This test deviation was issued to allow St. Martin Parish to test the proposed schedule and to obtain data and public comments. This deviation is being canceled upon this final rule going into effect because there have been no comments or complaints, and the new operating schedule will be permanent upon cancellation. This deviation from the operating regulations was authorized under 33 CFR 117.35. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The current and historical waterway traffic is very minimal with an average of 5 signals to open a day and most signals come from commercial vessels able to schedule an opening. The bridge is also only requiring a one hour advance notice, and will open as soon as possible for emergencies. Also the bridge will open on demand should a temporary surge in waterway traffic occur, and this schedule was tested without any complaints. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect a limited number of small entities. These entities include operators of tugboats and trawlers using the waterway. This rule will have no impact on any small entities because they are able to give notice prior to transiting through this bridge and most vessel operators that require an opening are currently providing advance notice. Lastly, no comments or complaints were received concerning this new operating schedule. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. The Coast Guard provided contact information, so that small entities could ask questions concerning this rule. No small entities contacted the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment because it simply promulgates the operating regulations or procedures for drawbridges. List of Subjects in 33 CFR Part 117 Bridges. Words of Issuance and Regulatory Text For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1. 2. Section 117.481 is added to read as follows: § 117.481 Milhomme Bayou The draw of the Stephensville Bridge, mile 12.2 (Landside Route) at Stephensville shall open on signal if at least one hour of advance notice is given. During the advance notice period, the draw shall open on less than one hour notice for an emergency, and shall open on demand should a temporary surge in waterway traffic occur. Dated: December 21, 2007. J.R. Whitehead, Rear Admiral, U.S. Coast Guard Commander, Eighth Coast Guard District. [FR Doc. E7-25495 Filed 12-31-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2007-0093] RIN 1625-AA87 Security Zone; Kahului Harbor, Maui, HI AGENCY: Coast Guard, DHS. ACTION: Temporary final rule; request for comments. SUMMARY: On November 28, 2007, the Coast Guard published a temporary interim rule that created a security zone in the waters of Kahului Bay and Kahului Harbor, Maui, and on designated adjacent areas of land. This temporary final rule modifies the activation period of the security zone from the previous interim rule to allow the public greater access to Kahului Harbor and Kahului Bay during the transit of the Hawaii Superferry. This temporary final rule is intended to enable the Coast Guard and its law enforcement partners to better protect people, vessels, and facilities in and around Kahului Bay and Kahului Harbor during the transit of the Hawaii Superferry. This rule complements, but does not replace or supersede, existing regulations that establish a moving 100-yard security zone around large passenger vessels like the Superferry. DATES: This rule is effective from January 2, 2008. through January 31, 2008. The Coast Guard will accept comments on this rule through January 31, 2008. ADDRESSES: You may submit comments and related material, identified by Coast Guard docket number USCG-2007-0093, by any of the four methods listed below. To avoid duplication, please use only one of the following methods:
(1)*Mail:* Lieutenant Sean Fahey, U.S. Coast Guard District 14 (dl), Room 9-130, PJKK Federal Building, 300 Ala Moana Blvd., Honolulu, Hawaii 96850.
(2)*Electronically:* E-mail to Lieutenant Sean Fahey at *Sean.C.Fahey@uscg.mil* using the subject line “Comment—Maui Security Zone.”
(3)*Fax:*
(808)541-2101.
(4)*Online: http://www.regulations.gov.* Documents indicated in this preamble as being available in the docket are part of docket USCG-2007-0093 and are available for inspection and copying at U.S. Coast Guard District 14 (dl), Room 9-130, between 7 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant Sean Fahey, U.S. Coast Guard District 14 at
(808)541-2106. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this temporary rule. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. It would be contrary to the public interest to delay implementing this temporary rule, as any delay might result in damage or injury to the public, the Hawaii Superferry
(HSF)and its passengers and crew, other vessels, facilities, and law enforcement personnel. Though operation of the HSF from Oahu to Maui was temporarily enjoined by the state circuit court in Maui, that injunction was lifted on November 14, 2007, following action by the Hawaii State legislature, and daily service to Maui resumed on December 13, 2007. At the time we published the temporary interim rule for Kahului Bay and Kahului Harbor on November 28, 2007 (72 FR 67251), we cited assessments by the Maui Police Department that waterborne obstruction tactics similar to those used in Kauai in August 2007 were likely to be employed in Maui as our justification for implementing that rule without first publishing an NPRM, and for making the rule effective less than 30 days after publication in the **Federal Register** . In that rule, the security zone for Kahului Bay and Kahului Harbor is automatically activated for enforcement 60 minutes prior to the Superferry's arrival in the zone, and remains activated for enforcement until 10 minutes after its departure. Notice of the zone's activation is provided by broadcast notice to mariners and the display of flags at Gate 1 at the main entrance to the harbor, on Pier No. 2, and at the harbor entrance on Wharf Street. The Coast Guard position from the start has been that we would only enforce a fixed security zone in and around Kahului Harbor if it was necessary to do so to ensure the safety and security of people, vessels and facilities. As of December 21, 2007, the HSF has been able to transit through Kahului Bay and Kahului Harbor without serious impediment, and the Coast Guard believes that it is appropriate to modify the previously published interim rule in light of these events to allow lawful users greater access to the land and waters areas of the security zone. This modification will allow the Coast Guard the discretion to activate the security zone only when such action is necessary to respond to actions by would-be obstructers, such as using themselves as human shields to obstruct the HSF's passage. This modification will be effected by changing the activation of the zone from an automatic event (one hour before the HSF arrives in, until ten minutes after the HSF departs from, Kahului Harbor) to a discretionary event—a determination by the Captain of the Port that activation of the zone is necessary to respond to the actions of HSF obstructers. Though the Coast Guard has determined that the current security situation justifies a policy of only implementing the fixed security zone in and around Kahului Harbor when necessary to respond to acts or threatened acts that pose a hazard to the safety and security of people, vessels and facilities, the Coast Guard has also determined that it would be irresponsible to do away with a fixed security zone entirely. Just over a week of unopposed sailings into and out of Kahului by the HSF does not guarantee that would-be obstructers have entirely given up any thought of employing dangerous obstruction tactics in the harbor, when the HSF is most restricted in its ability to maneuver and thus at its most vulnerable. Indeed, waterborne protesters have illegally entered the waters of the security zone on several occasions while the HSF was in Kahului Harbor, resulting in the need for enforcement action. Furthermore, activists from outside Maui, including admitted waterborne participants in the August 26 and 27 obstruction of the HSF in Nawiliwili Harbor, Kauai, have traveled to Maui, and have made statements in the press and otherwise in support of repeating the Kauai waterborne obstruction tactics on Maui. For these reasons, the Coast Guard believes it would be prudent, and in the best interests of safety, to retain a fixed security zone as a tool to be used when necessary to ensure the safe navigation of the HSF. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the **Federal Register** . Also, under 5 U.S.C. 553(d)(1) this rule may be made effective on January 2, 2008 because it relieves a restriction imposed by the current interim rule that the zone is activated automatically based on the arrival of the HSF. Although the Coast Guard has good cause to issue this temporary rule without first publishing a proposed rule, you are invited to submit post-promulgation comments and related material regarding this rule through January 31, 2008. The Coast Guard received several comments on the interim rule, and this public input was useful in the creation of this temporary final rule. All comments will be reviewed as they are received. Your comments will assist us in drafting future rules should they be necessary, and may cause us to change this temporary final rule before it expires. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. We have an agreement with the Department of Transportation
(DOT)for their Docket Management Facility to process online submissions to Coast Guard dockets. You may review the Department of Transportation's Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477), or you may visit *http://DocketsInfo.dot.gov.* Background and Purpose The Hawaii Superferry
(HSF)is a 349-foot large passenger vessel documented by the U.S. Coast Guard with an endorsement for coastwise trade, and certified for large passenger vessel service in the United States. The HSF, operating Hawaii's first inter-island vehicle-passenger service, is intended to provide service among the islands of Oahu, Maui, and Kauai. The sole port in Maui that can accommodate the HSF is Kahului Harbor. The sole port in Kauai that can accommodate the HSF is Nawiliwili Harbor. The HSF inaugurated commercial service from Oahu to both Maui and Kauai on August 26, 2007. The voyage to and from Maui on that date occurred without incident. However, in Kauai, nearly 40 swimmers and obstructers on kayaks and surfboards blocked Nawiliwili Harbor's navigable channel entrance to prevent the lawful entry of the HSF into Kauai. Other demonstrators ashore threw rocks and bottles at Coast Guard personnel who were conveying detained obstructers to shore. On the following day, August 27, 2007, the HSF again sailed to and from Maui without incident. Upon arrival in Kauai, however, approximately 70 persons entered the water again to physically block the channel entrance, thereby preventing the HSF from docking in Nawiliwili Harbor. Due to the difficulty in maneuvering in the small area of Nawiliwili Harbor, and in the interest of ensuring the safety of the protesters, the HSF's master chose not to enter the channel until the Coast Guard cleared the channel of obstructers. However, because the vessel remained outside the harbor, and because the obstructers did not approach within 100 yards of the vessel, the existing security zone for large passenger vessels (33 CFR 165.1410) did not provide the Coast Guard with the authority to control obstructer entry into Nawiliwili Harbor or clear the channel of obstructers before the HSF commenced its transit into the harbor. After waiting 3 hours, and with nearly 20 obstructers still in the water actively blocking the HSF, the HSF's master, after consulting with company officials, made the decision to return to Oahu without mooring in Kauai. On August 28, HSF officials announced the “indefinite” suspension of commercial operations. Shortly after the company announced its suspension of operations, a Maui trial court judge in state court issued a temporary restraining order, which was followed by a preliminary injunction several weeks later, prohibiting HSF from utilizing the harbor improvements in Kahului Harbor, Maui. This injunction was the product of a Hawaii Supreme Court determination that the Hawaii Environmental Protection Act
(HEPA)required the state to conduct an environmental assessment of the effects of the harbor improvements that were necessary to accommodate the HSF in Kahului Harbor. Following the Supreme Court decision, the trial court determined that HEPA required the environmental assessment to be conducted before the HSF could use those harbor improvements; and since that assessment had not occurred, the injunction was a necessary remedy. The injunction only pertained to Kahului Harbor; it did not apply in Nawiliwili Harbor, Kauai. However, the HSF voluntarily decided not to sail to Kauai while the court case was ongoing. In response to this judicial action, the governor called the Hawaii legislature into special session to consider whether to grant legislative relief to HSF. The legislature passed a bill during this special session called Act 2, which the governor signed into law. Act 2 allowed the HSF to utilize the harbor improvements in Maui and Kauai while all necessary environmental assessments were being conducted. The trial judge in Maui determined that this legislation overcame the requirement in HEPA that caused him to enjoin HSF from utilizing of the harbor improvements in Maui, and in a ruling on November 14, 2007, he dissolved and vacated the injunction. This opened the door to HSF resuming commercial service to Maui. A02JA0. Notwithstanding the fact that the HSF did not face waterborne obstructers in Kahului Harbor during its commercial voyages there in August, 2007, intelligence and assessments by the Maui Police Department indicated a substantial likelihood that certain elements in Maui, disaffected by the process that led to adoption of Act 2 and vacation of the injunction, might adopt the dangerous tactics used by the obstructers in Kauai in an effort to prevent the HSF from safely arriving in Maui upon its resumption of service to the island in December. Individuals and groups had organized rallies and started several internet forums to encourage and coordinate support for their efforts. The dangerous and unlawful intent of these individuals and groups was clear, as was their resolve. In response, on November 28, 2007, the Coast Guard published a temporary interim rule in the **Federal Register** (72 FR 67251) creating a security zone in the waters of Kahului Bay and Kahului Harbor, Maui, and on certain land features associated with Kahului harbor, to ensure the safety and security of people, vessels and facilities during the transit of the Hawaii Superferry. Under the provisions of that rule, the security zone is automatically activated for enforcement 60 minutes prior to the Superferry's arrival in the zone and remains activated for enforcement until 10 minutes after its departure. Notice of the zone's activation is provided by broadcast notice to mariners and the display of flags at Gate 1 at the main entrance to the harbor, on Pier No. 2, and at the harbor entrance on Wharf Street. Legitimate recreational users of Kahului Harbor have expressed concern about the security zone's potential impact on their recreational activities. This concern was reflected in several of the comments the Coast Guard received on the interim rule, in comments reported in the press, and in informal conversations between harbor users and Coast Guard representatives. In view of the fact that in the HSF's first full week of resumed operations in Maui there were no attempts to engage in waterborne obstructions of the HSF's passage, the Coast Guard has determined that there is no longer a need for the zone to automatically be activated every time the HSF approaches and enters Kahului Harbor. Thus, the Coast Guard is creating this temporary final rule that does away with automatic activation of the fixed security zone, and instead grants the Captain of the Port discretion to activate the zone only when he determines that acts or threatened acts pose a hazard to the safety and security of people, vessels and facilities. When the security zone is activated for enforcement, notice will be provided via a marine information broadcast, and via the display of flags at Gate 1 at the main entrance of the harbor, on Pier No. 2, and at the harbor entrance on Wharf Street. This rule does not in any way change the dimensions of the zone established in the temporary interim rule this rule is replacing, nor does it replace or supersede existing regulations that establish a moving 100-yard security zone around large passenger vessels like the Superferry. This temporary security zone is in response to the threat posed by would-be obstructers in and around Kahului Harbor to HSF and its crew and passengers, law enforcement officers working to ensure HSF's safe transit, and the obstructers themselves. By designating significant portions of the waters of Kahului Harbor and Kahului Bay, and specified areas of land adjacent to the water, as a security zone, this temporary security zone rule provides the Coast Guard and its law enforcement partners the authority to prevent persons and vessels from entering or remaining in the water with the intent of using themselves as human barriers to impede the HSF's safe passage. Discussion of Rule This rule creates a temporary security zone in most of the waters of Kahului Harbor, Maui; in waters of Kahului Bay, Maui; and on designated areas of land adjacent to Kahului Harbor. This temporary final rule is effective from January 2, 2008, through January 31, 2008. When the security zone is activated for enforcement, notice will be given by marine information broadcast and by a red flag, illuminated between sunset and sunrise, posted at the following locations: At Gate 1 at the main entrance to the harbor; on Pier No. 2; and at the harbor entrance on Wharf Street. During its period of activation and enforcement, entry into the land and water areas of the security zone is prohibited without the permission of the Captain of the Port, Honolulu, or his or her designated representative. In preparing this temporary rule, the Coast Guard made sure to consider the rights of lawful protestors. To that end, the Coast Guard excluded from the security zone a defined region which creates a sizeable area of water in which demonstrators may lawfully assemble and convey their message in a safe manner to their intended audience. This area of the harbor not included in the security zone is completely accessible to anyone who desires to enter the water, even when the security zone is activated, and is fully visible to observers ashore, at the HSF mooring facility, aboard the HSF when transiting the harbor, and from the air. The Coast Guard also took into account the lawful users of Kahului Harbor and Kahului Bay in its creation of this temporary rule. As previously noted, the rule will only be activated when necessary. With the exception of the 33 CFR 165.1408 100-yard security zone noted above that surrounds all large passenger vessels, Kahului Harbor and Kahului Bay will be fully available to all users during the period when the security zone is not activated. Furthermore, the rule affords those desiring to use the harbor and surrounding waters and land areas with the opportunity to request, and a process for requesting, permission of the Captain of the Port to enter the zone while it is activated in a manner that will not endanger any vessel, waterfront facility, the port, or any person. The security zone incorporates the minimum land and water areas necessary to ensure the purposes underlying the rule's creation are served. Waters outside of the harbor are included in the zone to ensure that the HSF is able to line up, unimpeded, on the range that guides it safely into Kahului Harbor. The breakwaters on either side of the harbor entrance are included in the zone to ensure that would-be obstructers do not have a ready staging point for attempting to block the very narrow entrance to Kahului Harbor. Pier No. 2, to which the HSF ties up, is included in the security zone, is entirely fenced off, and not legally accessible except to authorized personnel. Other than the designated protest area, the waters of Kahului Harbor, including areas of the harbor not navigable by the HSF, are included in the zone to prevent would-be obstructers from interfering with law enforcement vessels in the harbor that are working to ensure the HSF's safe passage. Under 33 CFR 165.33, entry by persons or vessels into the security zone during a period of zone activation is prohibited unless authorized by the Coast Guard Captain of the Port, Honolulu or his or her designated representatives. Operation of any type of vessel, including every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, within the security zone while the zone is activated is prohibited. If a vessel is found to be operating within the security zone without permission of the Captain of the Port, Honolulu while the zone is activated, the vessel is subject to seizure and forfeiture. All persons and vessels permitted in the security zone while the zone is activated must comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene patrol personnel. These personnel include commissioned, warrant, and petty officers of the Coast Guard and other persons permitted by law to enforce this regulation. Upon being hailed by an authorized vessel or law enforcement officer using siren, radio, flashing light, loudhailer, voice command, or other means, the operator of the vessel must proceed as directed. If authorized passage through the security zone, a vessel must operate at the minimum speed necessary to maintain a safe course and must proceed as directed by the Captain of the Port or his or her designated representatives. While underway with permission of the Captain of the Port or his or her designated representatives, under 33 CFR 165.1408, no person or vessel is allowed within 100 yards of the HSF when it is underway, moored, position-keeping, or at anchor, unless authorized by the Captain of the Port or his or her designated representatives. When conditions permit, the Captain of the Port, or his or her designated representatives, may permit vessels that are at anchor, restricted in their ability to maneuver, or constrained by draft to remain within the security zone during the enforcement period in order to ensure navigational safety. Any Coast Guard commissioned, warrant, or petty officer, and any other person permitted by law, may enforce the regulations in this section. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. This expectation is based on the short activation and enforcement duration of the security zone created by this temporary rule, as well as the limited geographic area affected by the security zone. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. While we are aware that the affected area has small entities, including canoe and boating clubs and small commercial businesses that provide recreational services, we anticipate that there will be little or no impact to these small entities due to the narrowly tailored scope of this temporary rule, as well as the fact that such entities can request permission from the Captain of the Port to enter the security zone when it is activated. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding this rule so that they may better evaluate its effects on them and participate in the rulemaking process. If this rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Sean Fahey, U.S. Coast Guard District 14, at
(808)541-2106. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and either preempts State law or imposes a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. While some obstructers, both on land and on shore, used small children in furtherance of their obstruction activities during the August 26 and 27 HSF arrivals into Kauai, and while online forums and other sources indicate that some organizers are actively recruiting adolescents and small children with the intent of putting them in harm's way should the HSF attempt to enter either Kauai or Maui, any heightened harm faced by children as a result of these tactics has no relation to the creation of this rule. Instead, those heightened risks are entirely the product of persons who recruit and employ adolescents and children to put themselves at risk of death or serious physical injury by attempting to physically obstruct the passage of a large passenger vessel in a small harbor. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards is inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, under figure 2-1, paragraph (34)(g) of the Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. An “Environmental Analysis Checklist” and “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Revise temporary § 165.T14-164 to read as follows: § 165.T14-164 Security Zone; Kahului Harbor, Maui, HI.
(a)*Location* . The following land areas, and water areas from the surface of the water to the ocean floor, are a security zone that is activated as described in paragraph
(c)of this section, and enforced subject to the provisions of paragraph
(d)of this section:
(1)All waters of Kahului Harbor, Maui, shoreward of the Kahului Harbor COLREGS DEMARCATION LINE (see 33 CFR 80.1460), except for a zone extending from the shoreline with the following three legs as boundaries:
(i)A leg extending in a straight line between Buoy “10” (LLNR 28375) and Buoy “12” (LLNR 28380);
(ii)A leg extending in a straight line between Buoy “10” (LLNR 28375) and the nearest shoreline point; and
(iii)A leg extending in a straight line between Buoy “12” (LLNR 28380) and the fence line at the southwestern base of Pier Two, at position (20 °53.589′N, 156 °28.084′W).
(2)Pier No. 2 in Kahului Harbor.
(3)The eastern breakwater at the entrance of Kahului Harbor, beginning at the east break wall (20 °53.958′N, 156 °28.161′W).
(4)The western breakwater at the entrance of Kahului Harbor, beginning at the berm on the west break wall (20 °53.925′N, 156 °28.611′W).
(5)All waters of Kahului Bay bounded on the south by the COLREGS. DEMARCATION LINE (see 33 CFR 80.1460); bounded on the north by line of latitude 20°56′ N; bounded on the west by a straight line drawn from the berm on the west break wall (20°53.925′ N, 156°28.611′ W) at a direction of 330° to the line of latitude 20°56′ N; and bounded on the east by a straight line drawn from the east break wall (20°53.958′ N, 156°28.161 W) at a direction of 030° and ending at the line of latitude 20°56′ N.
(b)*Effective period.* This section is effective from January 2, 2008, through January 31, 2008. It will be activated for enforcement as described in paragraph
(c)of this section.
(c)*Zone activation.* The zone described in paragraph
(a)of this section will be activated for enforcement when necessary, as determined by the Captain of the Port Honolulu, to prevent damage or injury to vessels, persons, and waterfront facilities, including the Hawaii Superferry, its passengers and crew. The zone, however, will be activated no sooner than 60 minutes before the Hawaii Superferry's anticipated arrival into the zone and will remain activated no more than 10 minutes after the Hawaii Superferry's departure from the zone. Notice of activation of the zone will be made by the issuance of a marine information broadcast, and by the hoisting of a red flag, illuminated between sunset and sunrise, posted at the following locations: at Gate 1 at the main entrance to the harbor; on Pier No. 2; and at the harbor entrance on Wharf Street.
(d)*Regulations.*
(1)Under 33 CFR 165.33, entry by persons or vessels into the security zone created by this section and activated as described in paragraph
(c)of this section is prohibited unless authorized by the Coast Guard Captain of the Port, Honolulu or his or her designated representatives. Operation of any type of vessel, including every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, within the security zone is prohibited. If a vessel is found to be operating within the security zone without permission of the Captain of the Port, Honolulu, and refuses to leave, the vessel is subject to seizure and forfeiture.
(2)All persons and vessels permitted in the security zone while the zone is activated must comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene-patrol personnel. These personnel comprise commissioned, warrant, and petty officers of the Coast Guard and other persons permitted by law to enforce this regulation. Upon being hailed by an authorized vessel or law enforcement officer using siren, radio, flashing light, loudhailer, voice command, or other means, the operator of a vessel must proceed as directed.
(3)If authorized passage through the security zone while the zone is activated, a vessel must operate at the minimum speed necessary to maintain a safe course and must proceed as directed by the Captain of the Port or his or her designated representatives. While underway with permission of the Captain of the Port or his or her designated representatives, no person or vessel is allowed within 100 yards of the Hawaii Superferry when it is underway, moored, position-keeping, or at anchor, unless authorized by the Captain of the Port or his or her designated representatives.
(4)Persons desiring to transit the security zone in this section while the zone is activated may contact the Captain of the Port at telephone number
(808)927-0865 or on VHF channel 12 to seek permission to transit the area. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port or his or her designated representatives. When conditions permit, the Captain of the Port, or his or her designated representatives, may permit vessels that are at anchor, restricted in their ability to maneuver, or constrained by draft to remain within the security zone in order to ensure navigational safety.
(e)*Enforcement.* Any Coast Guard commissioned, warrant, or petty officer, and any other Captain of the Port representative permitted by law, may enforce this temporary security zone. Dated: December 21, 2007. Sally Brice-O'Hara, Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard District. [FR Doc. E7-25496 Filed 12-31-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2007-1074, FRL-8504-8] Revisions to the California State Implementation Plan, Monterey Bay Unified Air Pollution Control District and San Joaquin Valley Air Pollution Control District AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action to approve revisions to the Monterey Bay Unified Air Pollution Control District (MBUAPCD) and San Joaquin Valley Air Pollution Control District (SJVAPCD) portions of the California State Implementation Plan (SIP). Under authority of the Clean Air Act as amended in 1990 (CAA or the Act), we are approving local rules that address circumvention, reduction of animal matter, and volatile organic compound
(VOC)emissions from gasoline bulk storage tanks, gasoline filling stations, petroleum refinery equipment, and petroleum solvent dry cleaning. DATES: This rule is effective on March 3, 2008 without further notice, unless EPA receives adverse comments by February 1, 2008. If we receive such comment, we will publish a timely withdrawal in the **Federal Register** to notify the public that this rule will not take effect. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2007-1074, by one of the following methods: 1. *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the on-line instructions. 2. *E-mail: steckel.andrew@epa.gov.* 3. *Mail or deliver:* Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments 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 Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through *http://www.regulations.gov* or e-mail. *http://www.regulations.gov* is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. 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. *Docket:* The index to the docket for this action is available electronically at *http://www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Al Petersen, EPA Region IX,
(415)947-4118, *petersen.alfred@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us” and “our” refer to EPA. Table of Contents I. The State's Submittal A. What rules did the State submit? B. Are there other versions of these rules? C. What is the purpose of the submitted rules and rule revisions? II. EPA's Evaluation and Action A. How is EPA evaluating the rules? B. Do the rules meet the evaluation criteria? C. EPA recommendation to further improve a rule D. Public comment and final action III. Statutory and Executive Order Reviews I. The State's Submittal A. What rules did the State submit? Table 1 lists the rules we are approving with the dates that they were adopted, amended, or revised by the local air agencies and submitted by the California Air Resources Board (CARB). Table 1.—Submitted Rules for Full Approval District Rule No. Rule title Adopted, amended, or revised Submitted MBUAPCD 415 Circumventions 03/21/07 Revised 08/24/07 MBUAPCD 418 Transfer of Gasoline into Stationary Storage Containers 03/21/07 Revised 08/24/07 MBUAPCD 1002 Transfer of Gasoline into Vehicle Fuel Tanks 03/21/07 Revised 08/24/07 SJVUAPCD 4104 Reduction of Animal Matter 12/17/92 Amended 08/24/07 SJVUAPCD 4402 Crude Oil Production Sumps 12/17/92 Amended 08/24/07 SJVUAPCD 4404 Heavy Oil Test Station—Kern County 12/17/92 Adopted 08/24/07 SJVUAPCD 4453 Refinery Vacuum Producing Devices or Systems 12/17/92 Amended 08/24/07 SJVUAPCD 4454 Refinery Process Unit Turnaround 12/17/92 Amended 08/24/07 SJVUAPCD 4625 Wastewater Separators 12/17/92 Amended 08/24/07 SJVUAPCD 4641 Cutback, Slow Cure, and Emulsified Asphalt, Paving and Maintenance Operations 12/17/92 Amended 08/24/07 SJVUAPCD 4672 Petroleum Solvent Dry Cleaning Operations 12/17/92 Amended 08/24/07 On September 17, 2007, the submittal of August 24, 2007 was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review. B. Are there other versions of these rules? We approved a version of MBUAPCD Rules 415, 418, and 1002 into the SIP on March 7, 2003 (68 FR 10966), May 24, 2004 (69 FR 29451), and January 15, 2004 (69 FR 2300), respectively. Some SIP versions of submitted SJVAPCD rules are old rules from the eight counties that now comprise SJVAPCD; other SIP versions are SJVAPCD rules that have been renumbered. These SIP-approved rules are described below. Precursor SIP rules for submitted SJVAPCD Rule 4104: • Fresno County Rule 414, Reduction of Animal Matter (approved on September 22, 1972, 37 FR 19812). • Kern County Rule 415, Reduction of Animal Matter (approved on September 22, 1972, 37 FR 19812). • Kings County Rule 415, Reduction of Animal Matter (approved on September 22, 1972, 37 FR 19812). • Madera County Rule 421, Reduction of Animal Matter (approved on November 18, 1983, 48 FR 52450). • Merced County Rule 414, Reduction of Animal Matter (approved on September 22, 1972, 37 FR 19812). • San Joaquin County Rule 414, Reduction of Animal Matter (approved on August 22, 1977, 42 FR 42219). • Stanislaus County Rule 414, Reduction of Animal Matter (approved on September 22, 1972, 37 FR 19812). • Tulare County Rule 415, Reduction of Animal Matter (approved on September 22, 1972, 37 FR 19812). Precursor SIP rule for submitted SJVAPCD Rule 4402: • SJVAPCD Rule 465.2, Crude Oil Production Sumps (amended on September 19, 1991, approved on December 18, 1994, 59 FR 64132). Precursor SIP rules for submitted SJVAPCD Rule 4453: • Kern County Rule 414.2, Refinery Process Vacuum Producing Devices or Systems (approved on August 21, 1981, 46 FR 42459). • Kings County Rule 414.2, Refinery Vacuum Producing Devices or Systems (approved on May 7, 1982, 47 FR 19696). • San Joaquin County Rule 413.2, Refinery Vacuum Producing Devices (approved on May 7, 1982, 47 FR 19696). Precursor SIP rules for submitted SJVAPCD Rule 4454: • Kern County Rule 414.3, Refinery Process Unit Turnaround (approved on August 21, 1981, 46 FR 42459). • Kings County Rule 414.3, Refinery Process Unit Turnaround (approved on May 7, 1982, 47 FR 19696). • San Joaquin County Rule 413.3, Refinery Process Unit Turnaround (approved on May 7, 1982, 47 FR 19696). Precursor SIP rule for submitted SJVAPCD Rule 4625: • SJVAPCD Rule 463.4, Wastewater Separators (adopted on April 11, 1991, approved on May 13, 1993, 58 FR 28354). Precursor SIP rule for submitted SJVAPCD Rule 4641: • SJVAPCD Rule 463.1, Cutback, Slow Cure, and Emulsified Asphalt, Paving and Maintenance Operations (amended on September 19, 1991, approved on June 24, 1992, 57 FR 28089). Precursor SIP rule for submitted SJVAPCD Rule 4672: • SJVAPCD Rule 467.2, Petroleum Solvent Dry Cleaning Operations (adopted on April 11, 1991, approved on April 24, 1992, 57 FR 15026). There is no SIP rule for submitted SJVAPCD Rule 4404. C. What is the purpose of the submitted rules and rule revisions? Section 110(a) of the CAA requires states to submit regulations that control volatile organic compounds, oxides of nitrogen, particulate matter, and other air pollutants which harm human health and the environment. These rules were developed as part of the local agency's program to control these pollutants. The purposes of revisions to MBUAPCD Rules 415, 418, and 1002 relative to the SIP are as follows: • *415.3.2:* Two provisions are added to ensure that source tests are performed as scheduled and not discontinued to avoid documentation of periods of noncompliance. • *418.3.6:* A requirement is added for International Code Council
(ICC)certification of vapor recovery installation personnel and vapor recovery test personnel for Phase I equipment. • *1002.1.3.4:* An exemption from Phase II vapor recovery is added for facilities that have 90% of their vehicle fleet equipped with onboard refueling vapor recovery (ORVR). • *1002.3.8:* A requirement is added for ICC certification of vapor recovery installation personnel and vapor recovery test personnel for Phase II equipment. The purposes of new SJVAPCD Rule 4404 and amended Rules 4104, 4402, 4453, 4454, 4625, 4641, and 4672 and their amendments are as follows: • *4104:* The rule requires reducing air contaminants during the reduction of animal matter by setting a minimum exposure time of 0.3 seconds at 1200 degrees Fahrenheit. The format of the rule is improved. • *4402:* The rule requires limiting VOC emissions from sumps by the use of emission control devices. The format of the rule is improved, and the definition of VOC is deleted. • *4404:* The rule requires reducing uncontrolled VOC emissions from a heavy oil test station by 99%. • *4453:* The rule requires reducing VOC emissions from refinery vacuum producing devices by covering hotwells and collecting vapors for recycle to refinery gas or incineration. The format of the rule is improved. • *4454:* The rule requires reducing VOC emissions from a refinery process unit turnaround by collecting vapors for recycle to refinery gas, incineration, or flaring. The format of the rule is improved. • *4625:* The rule requires reducing VOC emissions from wastewater separators by installing covers or by the use of a vapor recovery system with a control efficiency of at least 90%. The format of the rule is improved, and the definition of VOC is deleted. • *4641:* The rule requires reducing VOC emissions by prohibiting the application and manufacturing of certain types of asphalt used for paving and maintenance operations. The format of the rule is improved, and the definition of VOC is deleted. • *4672:* The rule requires reducing VOC emissions from petroleum solvent dry cleaning operations through implementation of various good operating practices and with the use of emission control equipment. The format of the rule is improved. The TSD has more information about these rules. II. EPA's Evaluation and Action A. How is EPA evaluating the rules? Generally, SIP rules must be enforceable (see section 110(a) of the CAA), must require Reasonably Available Control Technology
(RACT)for each category of sources covered by a Control Techniques Guidelines
(CTG)document as well as each major source in nonattainment areas (see section 182(a)(2)), and must not relax existing requirements (see sections 110(l) and 193). Gasoline dispensing sources in ozone nonattainment areas must have gasoline vapor recovery equipment (see section 182(a)(3)(A)). The MBUAPCD regulates an ozone maintenance attainment area (see 40 CFR part 81) and must require the use vapor recovery equipment at gasoline dispensing facilities in order to retain its maintenance attainment status. The SJVAPCD regulates an ozone nonattainment area (see 40 CFR part 81) and must fulfill the requirements of RACT. Guidance and policy documents that we used to help evaluate specific enforceability and RACT requirements consistently include the following: 1. Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044 (November 24, 1987). 2. *Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,* EPA (May 25, 1988). [The Bluebook]. 3. *Guidance Document for Correcting Common VOC & Other Rule Deficiencies,* EPA Region 9 (August 21, 2001). [The Little Bluebook]. 4. *Suggested Control Measure for the Control of Organic Compound Emissions from Sumps Used in Oil Production Operation,* California Air Resources Board (August 1988). 5. *Control of Refinery Vacuum Producing systems, Wastewater Separators, and Process Unit Turnarounds,* U.S. EPA (October 1977). 6. *Control of VOC from the Use of Cutback Asphalt,* U.S. EPA (December 1977). 7. *Control of VOC Emissions from Large Petroleum Dry Cleaners,* U.S. EPA (September 1982). B. Do the rules meet the evaluation criteria? There are no specific requirements for MBUAPCD Rule 415, but the revisions improve enforcement of other rules. The rule should be given full approval. We believe that MBUAPCD Rules 418 and 1002 comply with the vapor recovery requirements for gasoline dispensing facilities and should be given full approval. We believe that SJVAPCD Rules 4104, 4402, 4404, 4453, 4454, 4625, 4641, and 4672 are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations, fulfill the requirements of RACT, and should be given full approval. The TSD has more information on our evaluation. C. EPA recommendation to further improve a rule The TSD describes a recommended revision to SJVAPCD Rule 4404 that does not affect EPA's current action but is recommended for the next time the local agency modifies the rule. D. Public comment and final action As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this **Federal Register** , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by February 1, 2008, we will publish a timely withdrawal in the **Federal Register** to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on March 3, 2008. This will incorporate these rules into the federally enforceable SIP. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. III. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. section 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. section 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 3, 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, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: November 16, 2007. Laura Yoshii, Acting Regional Administrator, Region IX. Part 52, 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 F—California 2. Section 52.220 is amended by adding paragraphs (c)(351)(i)(B)( *2* ), (B)( *3* ), and
(C)to read as follows: § 52.220 Identification of plan.
(c)* * *
(351)* * *
(i)* * *
(B)* * * ( *2* ) Rules 415 and 418, adopted on September 1, 1974 and revised on February 21, 2007 and March 21, 2007, respectively. ( *3* ) Rule 1002, adopted on February 22, 1989 and revised on March 21, 2007.
(C)San Joaquin Valley Air Pollution Control District. ( *1* ) Rules 4104, 4404, 4453, and 4454, adopted on May 21, 1992 and amended on December 17, 1992. ( *2* ) Rules 4402, 4625, 4641, and 4672, adopted on April 11, 1991 and amended on December 17, 1992. [FR Doc. E7-25103 Filed 12-31-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0766; FRL-8345-4] RIN 2070-AJ28 Pesticide Tolerance Crop Grouping Program; Technical Amendment AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule; technical amendment. SUMMARY: EPA issued a final rule in the **Federal Register** of December 7, 2007 (72 FR 69150) (FRL-8343-1), concerning amendments and revisions to the pesticide tolerance crop grouping regulations. This document is being issued to correct an omission in one of the crop grouping tables and to remove unnecessary scientific names from another table. DATES: This final rule is effective January 2, 2008. ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2007-0766. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov web site to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(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 in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the Office of Pesticide Programs
(OPP)Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Rame Cromwell, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 703-308-9068; fax number:703-305-5884; e-mail address: *cromwell.rame@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? The Agency included in the final rule a list of those who may be potentially affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under the FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document and Other Related Information? In addition to using regulations.gov, you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . II. What Does this Technical Amendment Do? EPA issued a final rule in the **Federal Register** of December 7, 2007 (72 FR 69150) (FRL-8343-1), concerning amendments and revisions to the pesticide tolerance crop grouping regulations. This document is being issued to correct an omission in the crop grouping table in § 180.41(c)(15)(ii) for Gooseberry, and to remove unnecessary scientific names from the crop group 21 table in § 180.41(c)(22)(ii). III. Why is this Technical Amendment Issued as a Final Rule? Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's technical amendment final without prior proposal and opportunity for comment, because this technical amendment merely adds two subgroup numbers which were inadvertently left out to one table, and removes unnecessary scientific nomenclature from another table. This technical amendment does not change the impact of the December 7, 2007 document. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B). IV. Do Any of the Statutory and Executive Order Reviews Apply to this Action? EPA included the necessary statutory and Executive Order reviews in the December 7, 2007 final rule. V. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the Agency promulgating the rule must submit a rule report 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 this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Pesticides and pest. Dated: December 13, 2007. James Jones, Acting Assistant Administrator for Prevention, Pesticides, and Toxic Substances. Therefore, 40 CFR part 180 is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a, and 371. 2. Section 180.41 is amended by revising the entry for “Gooseberry ( *ribes* spp)” in table 1 to paragraph (c)(15)(ii), and by revising the Crop Group 21 table in paragraph (c)(22)(ii) to read as follows: § 180.41 Crop group tables.
(c)* * *
(15)* * *
(ii)* * * **TABLE 1.—Crop Group 13-07: Berry and Small Fruit Crop Group** Commodities Related crop subgroups * * * * * * * Gooseberry ( *Ribes* spp.) 13-07B, 13-07D, 13-07E, 13-07F * * * * * * *
(22)* * *
(ii)* * * **Crop Group 21.—Edible Fungi Group—Commodities** Blewitt ( *Lepista nuda* ) Bunashimeji ( *Hypsizygus marrmoreus* ) Chinese mushroom ( *Volvariella volvacea* ) (Bull.) Singer Enoki ( *Flammulina velutipes* ) (Curt.) Singer Hime-Matsutake ( *Agaricus blazei* ) Murill Hirmeola ( *Auricularia auricular* ) Maitake ( *Grifola frondosa* ) Morel ( *Morchella spp.* ) Nameko ( *Pholiota nameko* ) Net Bearing ( *Dictyophora* ) Oyster mushroom ( *Pleurotus spp.* ) Pom Pom ( *Hericium erinaceus* ) Reishi mushroom ( *Ganoderma lucidum* (Leyss. Fr.) Karst.) Rodman's agaricus ( *Agaricus bitorquis* ) (Quel.) Saccardo Shiitake mushroom ( *Lentinula edodes* (Berk.) Pegl.) Shimeji ( *Tricholoma conglobatum* ) Stropharia ( *Stropharia spp.* ) Truffle ( *Tuber spp.* ) White button mushroom ( *Agaricus bisporous* (Lange) Imbach) White Jelly Fungi ( *Tremella fuciformis* ) [FR Doc. E7-25280 Filed 12-31-07; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0732; FRL-8342-6] Trifloxystrobin; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes tolerances for the combined residues of trifloxystrobin, and its free form acid metabolite in or on asparagus; papaya; sapote, black; canistel; sapote, mamey; mango; sapodilla; star apple; vegetable, root, except sugar beet, subgroup 1B; radish, tops; fruit, citrus, group 10; citrus, oil; citrus, dried pulp; and strawberry. Interregional Research Project Number 4 (IR-4), and Bayer Crop Science requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). DATES: This regulation is effective January 2, 2008. Objections and requests for hearings must be received on or before March 3, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION) . ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2006-0732. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(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 in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Shaja R. Brothers, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-3194; e-mail address: *brothers.shaja@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0732 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before March 3, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2006-0732, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Petition for Tolerance In the **Federal Registers** of September 13, 2006 (71 FR 54058) (FRL-8091-2), and August 22, 2007 (72 FR 47010) (FRL-8142-5), EPA issued notices pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of pesticide petitions
(PPs)6E7088, 6F7123, 7F7171 by IR-4, 500 College Road East, Suite 201 W, Princeton, NJ 08540; and Bayer CropScience, P.O. Box 12014, 2 T.W. Alexander Drive, Research Triangle Park, NC 27709. These petitions requested that 40 CFR 180.555 be amended by establishing tolerances for combined residues of the fungicide trifloxystrobin, (Benzeneacetic acid, ( *E,E* )-α-(methoxyimino)-2-[[[[1-[3-(trifluoromethyl) phenyl]ethylidene]amino]oxy]methyl]-, methyl ester) and the free form of its acid metabolite CGA-321113 (( *E,E* )-methoxyimino-[2-[1-(3-trifluoromethyl-phenyl)-ethylideneaminooxymethyl]-phenyl]acetic acid, in or on asparagus at 0.07 parts per million (ppm); papaya at 0.7 ppm; sapote, black at 0.7ppm; canistel at 0.7 ppm; sapote, mamey at 0.7 ppm; mango at 0.7 ppm; sapodilla at 0.7 ppm; star apple at 0.7 ppm; vegetable, root, except sugar beet, subgroup 1B at 0.1 ppm; and radish, tops at 10 ppm (6E7088); fruit, citrus, group 10 at 0.4 ppm; citrus, oil at 36 ppm; citrus, dried pulp at 1.0 ppm (6F7123); and strawberry at 1.1 ppm (6F7171). These notices referenced a summary of the petitions prepared by Bayer CropScience, the registrant, which is available to the public in the docket, *http://www.regulations.gov* . One comment was received from a private citizen on the notice of filing concerning the tolerances for strawberry and citrus. EPA's response to these comments is discussed in Unit IV.C. Based upon review of the data supporting the petition, EPA has increased the tolerances on fruit, citrus, group 10 from 0.4 to 0.6 ppm, and citrus, oil from 36 to 38 ppm. The reason for these changes is explained in Unit IV.D. III. Aggregate Risk Assessment and Determination of Safety Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” These provisions were added to FFDCA by the Food Quality Protection Act
(FQPA)of 1996. Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerance for combined residues of trifloxystrobin on asparagus at 0.07 ppm; papaya at 0.7 ppm; sapote, black at 0.7 ppm; canistel at 0.7 ppm; sapote, mamey at 0.7 ppm; mango at 0.7 ppm; sapodilla at 0.7 ppm; star apple at 0.7 ppm; vegetable, root, except sugar beet, subgroup 1B at 0.1 ppm; and radish, tops at 10 ppm; fruit, citrus, group 10 at 0.6 ppm; citrus, oil at 38 ppm; citrus, dried pulp at 1.0 ppm; and strawberry at 1.1 ppm. EPA's assessment of exposures and risks associated with establishing these tolerances follow. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by trifloxystrobin as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found in the *Trifloxystrobin: Human Health Risk Assessment for Section 3 Registration for the Proposed Uses on Grasses Grown for Seed* on pages 41 and 42 at *http://www.regulations.gov* . The referenced document is available in docket EPA-HQ-OPP-2007-0539. B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern
(LOC)is derived from the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment. Uncertainty/safety factors
(UFs)are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose
(aPAD)and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure
(MOE)called for by the product of all applicable UFs is not exceeded. For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . A summary of the toxicological endpoints for trifloxystrobin used for human risk assessment can be found at *http://www.regulations.gov* in the *Trifloxystrobin: Human Health Risk Assessment for Section 3 Uses on Asparagus; Vegetable, Root Except Sugar Beet, Subgroup 1B; Radish (Tops); and Papaya, Black Sapote, Canistel, Mamey Sapote, Mango, Sapodilla, and Star Apple, Citrus Fruits, Crop Group 10; Citrus, Oil; and Citrus, Dried Pulp, and Strawberry* on pages 16 and 17 for docket ID number EPA-HQ-OPP-2006-0732. C. Exposure Assessment 1. *Dietary exposure from food and feed uses* . In evaluating dietary exposure to trifloxystrobin, EPA considered exposure under the petitioned-for tolerances as well as all existing trifloxystrobin tolerances in 40 CFR 180.555. EPA assessed dietary exposures from trifloxystrobin in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. In estimating acute dietary exposure, EPA used food consumption information from the U.S. Department of Agriculture
(USDA)1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA assumed tolerance level residues and 100 percent crop treated
(PCT)was performed for trifloxystrobin. ii. *Chronic exposure* . In conducting the chronic dietary exposure assessment, EPA used the food consumption data from the USDA 1994-1996, and 1998 CSFII. As to residue levels in food, EPA assumed tolerance level residues and 100 PCT was performed for trifloxystrobin. PCT and/or anticipated residues were not used. iii. *Cancer* . Trifloxystrobin is classified as a “not likely carcinogen”; therefore, quantification of human cancer risk is not required and a cancer dietary exposure assessment was not performed. 2. *Dietary exposure from drinking water* . The Agency lacks sufficient monitoring data to complete a comprehensive dietary exposure analysis and risk assessment for trifloxystrobin in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the environmental fate characteristics of trifloxystrobin. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://www.epa.gov/oppefed1/models/water/index.htm* . Trifloxystrobin is immobile in soil. It degrades and transforms rapidly in soil and aquatic environments. The primary degradate is CGA-321113. Estimated drinking water concentrations (EDWCs) were calculated for total trifloxystrobin residues (parent trifloxystrobin plus the major degradate CGA-321113) using the Agency's First Index Reservior Screening Tool (FIRST) model for surface water and the Screening Concentration in Ground Water (SCI-GROW) model for ground water. The interim method for drinking water estimates for pesticides used in rice paddies was also used to generate EDWCs. The use site with the highest application rate is turf, with a maximum label rate of 1.078 pounds active ingredient/acre/year (lb ai/A/yr) (three applications at 0.359 lb ai/A/yr). Drinking water estimates were also provided for rice paddies that may be treated with trifloxystrobin. The Agency determined that the highest EDWC for both acute and chronic analysis should use 140 parts per billion
(ppb)based on the model for the use on rice. Because this model does not account for degradation of the chemical or dilution with uncontaminated water outside of the rice paddy, the calculated EDWCs (140 ppb) are expected to exceed concentrations likely to be found in drinking water derived from surface water sources. Based on the FIRST, and SCI-GROW models, the estimated environmental concentrations
(EECs)of trifloxystrobin for acute and chronic exposures for surface water are estimated at 140 ppb. Acute and chronic exposure for ground water is estimated at 3.4 ppb. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the acute and chronic dietary risk assessments, the water concentration values of 140 ppb (acute and chronic) were used to access the contribution to drinking water. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Trifloxystrobin is currently registered for the following residential non-dietary sites: Compass TM is registered for residential use on turf grass and ornamentals disease control. However, this product may only be applied by a Certified Pest Control Operator (PCO). Therefore, an assessment for residential handlers was not performed. There is potential for dermal (adults and children) and oral exposure (children only) during post-application activities. EPA assessed residential post-application exposure using the following assumptions: i. Dermal exposure from pesticide residues on lawns; ii. Incidental non-dietary ingestion of pesticide residues on lawns from hand-to-mouth transfer; iii. Incidental non-dietary ingestion of residues from object-to-mouth activities (pesticide-treated turf grass); and iv. Incidental non-dietary ingestion of soil from pesticide-treated residential areas. Post-application exposures from various activities following lawn treatment are considered to be the most common and significant in residential settings. Exposure via incidental non-dietary ingestion involving other plant material may occur but is expected to result in much less exposure than the four exposure scenarios listed above. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to trifloxystrobin and any other substances and trifloxystrobin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that trifloxystrobin has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. *In general* . Section 408 of FFDCA provides that EPA shall apply an additional (“10X”) tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional FQPA safety factor value based on the use of traditional UFs and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity* . There is no indication of increased susceptibility of rat or rabbits to trifloxystrobin. In the developmental and reproduction toxicity studies, effects in the fetuses/offspring were observed only at or above treatment levels which resulted in evidence of parental toxicity. 3. *Conclusion* . EPA has determined that reliable data show that it would be safe for infants and children to reduce the FQPA safety factor to 1X. That decision is based on the following findings: i. The toxicity database for trifloxystrobin is complete except for an acute neurotoxicity study which is classified as unacceptable. The toxicity database contains developmental toxicity studies in two species (rats and rabbits) and a 2-generation reproduction study in rats which are adequate to assess prenatal and/or postnatal susceptibility to infants and children. Although the available, submitted acute neurotoxicity study was found to be unacceptable, based on a weight-of-the evidence review of the available data, the lack of this study does not impact the Agency's ability to make an FQPA safety factor decision. Since there was no evidence of neurotoxicity in this study at the limit dose nor in the other subchronic and chronic studies in the database, there is no uncertainty concerning neurotoxic effects and EPA has reliable data to show that removal of the FQPA safety factor is safe for children. Additionally, these data demonstrate that a developmental neurotoxicity study is not required for this pesticide. ii. There is no residual concern for prenatal or postnatal toxicity or increased sensitivity in infants and children. In both the rat developmental study and the 2-generation reproduction studies there were no effects in fetal animals or offspring at the highest dose tested. Although developmental effects were seen in the rabbit developmental study, there was a clear NOAEL identified for these effects and that NOAEL was used in setting the aPAD. Moreover, adverse effects were seen in the adult animals in this study at a lower level. iii. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. Conservative ground water and surface water modeling estimates were used. Similarly, conservative assumptions were used to assess post-application exposure to children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by trifloxystrobin. E. Aggregate Risks and Determination of Safety Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the aPAD and cPAD. The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the MOE called for by the product of all applicable UFs is not exceeded. 1. *Acute risk* . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to trifloxystrobin will occupy < 1% of the aPAD for females 13 to 49 years old. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to trifloxystrobin from food and water will utilize 52% of the cPAD for all infants less than 1 year old. Based on the use pattern, chronic residential exposure to residues of trifloxystrobin is not expected to underestimate risk to adults or children. 3. *Short-term risk* . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Trifloxystrobin is currently registered for uses that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term exposures for trifloxystrobin. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that food, water, and residential exposures aggregated result in aggregate dermal MOEs of 1,200 and 670 for the U.S. population and all infants <1 year old, respectively, and an oral MOE of 150 for all infants <1 year old. 4. *Intermediate-term risk* . Intermediate-term exposure (1 to 6 months) to the parent trifloxystrobin is not expected to occur in residential settings due to its short half-life (about 2 days based on soil and aquatic metabolism studies). Therefore, an intermediate-term aggregate risk assessment was not performed. 5. *Aggregate cancer risk for U.S. population* . EPA has classified trifloxystrobin as a “not likely human carcinogen,” and EPA considers trifloxystrobin to pose no greater than a negligible cancer risk. 6. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to trifloxystrobin residues. IV. Other Considerations A. Analytical Enforcement Methodology An adequate gas chromatography with nitrogen phosphorus detector (GC/NPD) method (Method AG-659A) is available for enforcing tolerances for the combined residues of trifloxystrobin and CGA-321113 in plant commodities. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:
(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits There are currently no Canadian maximum residue levels
(MRLs)for trifloxystrobin. Codex and Mexican MRLs have been established for trifloxystrobin in or on various commodities; however, there are no Mexican MRLs for the commodities associated with the proposed uses. Codex MRLs have been established on carrots (0.1 ppm) and strawberry (0.2 ppm), which differs from the MRL calculated by the MRL spreadsheet for strawberry (1.1 ppm). Also, the residue definition for both Codex and Mexican MRLs includes only parent compound in plant commodities, but the definition for Codex MRLs in livestock commodities includes parent and the acid metabolite, CGA321113. Harmonization in plant commodities is not possible at this time as the current U.S. tolerance definition includes the combined residues of trifloxystrobin and its free acid metabolite. C. Response to Comments One comment was received from a private citizen who opposed the authorization to sell any pesticide that leaves a residue on food. The Agency has received this same comment from this commenter on numerous previous occasions and rejects it for the reasons previously stated in the **Federal Register** of 70 FR 1349, 1354 (January 7, 2005). D. Explanation of Tolerance Revisions Bayer CropScience requested a reduction in the pre-harvest interval from 30 to 7 days for citrus and a corresponding modification of the tolerance. The submitted field trial data and processing studies are adequate to support this request. As a result, tolerance expressions have been revised from 0.4 to 0.6 ppm for fruit, citrus, group 10; and 36 to 38 ppm for citrus, oil. V. Conclusion Therefore, the tolerances are established for combined residues of trifloxystrobin, Benzeneacetic acid, ( *E,E* )-α-(methoxyimino)-2-[[[[1-[3-(trifluoromethyl) phenyl]ethylidene]amino]oxy]methyl]-, methyl ester, and the free form of its acid metabolite CGA-321113 ( *E,E* )-methoxyimino-[2-[1-(3-trifluoromethyl-phenyl)-ethylideneaminooxymethyl]-phenyl]acetic acid, in or on asparagus at 0.07 ppm; papaya at 0.7 ppm; sapote, black at 0.7 ppm; canistel at 0.7 ppm; sapote, mamey at 0.7 ppm; mango at 0.7 ppm; sapodilla at 0.7 ppm; star apple at 0.7 ppm; vegetable, root, except sugar beet, subgroup 1B at 0.1 ppm; and radish, tops at 10 ppm; fruit, citrus, group 10 at 0.6 ppm; citrus, oil at 38 ppm; citrus, dried pulp at 1.0 ppm; and strawberry at 1.1 ppm. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report 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 this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: December 20, 2007. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. In § 180.555, the table to paragraph
(a)is amended by revising the entries for “Citrus, dried pulp” “Citrus, oil” and “Fruit, citrus, group 10,” and by alphabetically adding new commodities to read as follows: § 180.555 Trifloxystrobin.
(a)* * * Commodity Parts per million * * * * * Asparagus 0.07 * * * * * Canistel 0.7 * * * * * Citrus, dried pulp 1.0 Citrus, oil 38 * * * * * Fruit, citrus, group 10 0.6 * * * * * Mango 0.7 * * * * * Papaya 0.7 * * * * * Radish, tops 10 * * * * * Sapodilla 0.7 Sapote, black 0.7 Sapote, mamey 0.7 * * * * * Star apple 0.7 Strawberry 1.1 * * * * * Vegetable, root, except sugar beet, subgroup 1B 0.1 * * * * * [FR Doc. E7-25396 Filed 12-31-07; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 260 and 261 [EPA-HQ-RCRA-2002-0002: FRL-8511-5] RIN 2050-AE78 Regulation of Oil-Bearing Hazardous Secondary Materials From the Petroleum Refining Industry Processed in a Gasification System To Produce Synthesis Gas AGENCY: Environmental Protection Agency. ACTION: Final rule. SUMMARY: The Environmental Protection Agency
(EPA)is revising its hazardous waste management regulations under the Resource Conservation and Recovery Act
(RCRA)to further promote the environmentally sound recycling of oil-bearing hazardous secondary materials generated by the petroleum refining industry. Specifically, EPA is amending an existing exclusion from the definition of solid waste for oil-bearing hazardous secondary materials when they are processed in a gasification system at a petroleum refinery for the production of synthesis gas. We are finalizing this exclusion so that the gasification of these materials will have the same regulatory status (they are all excluded from the definition of solid waste under RCRA) as oil-bearing hazardous secondary materials that are reinserted into the petroleum refining process. This action serves what we believe is a national interest by capturing as much energy from a barrel of oil as possible to maximize production efficiencies at petroleum refineries in an energy constrained world. DATES: This final rule is effective on February 1, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-RCRA-2002-0002. All documents in the docket are listed on the *http://www.regulations.gov* web site. Although listed in the index, some information is not publicly available, because, for example, it may be Confidential Business Information
(CBI)or other information, the disclosure of which is restricted by statute. Certain 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 through *http://www.regulations.gov* or in hard copy at the RCRA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the RCRA docket is
(202)566-0270. FOR FURTHER INFORMATION CONTACT: Elaine Eby, Waste Minimization Branch, Hazardous Waste Minimization and Management Division, Office of Solid Waste (5302P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; *telephone number:*
(703)308-8449, *fax number:*
(703)308-8433, *e-mail address: eby.elaine@epa.gov* . SUPPLEMENTARY INFORMATION: A. Does This Action Apply to Me? This rule may apply to entities regulated under RCRA, in the petroleum refining industry, identified as Standard Industrial Classification
(SIC)2911. To determine whether your facility, company, or business is affected by this action, you should carefully examine 40 CFR Parts 260 through 271. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding “ FOR FURTHER INFORMATION CONTACT ” section. B. Table of Contents I. Statutory Authority. II. Summary of This Action. III. Background. IV. Development of This Final Rule. A. How Many Gasification Systems Are Currently Operating at Petroleum Refineries? B. What Conclusions Have We Drawn About Gasification Systems Operating at Petroleum Refineries? V. This Final Rule. A. Does the Conditional Exclusion Include a Definition for a Gasification System Used at a Petroleum Refinery? B. Does the Conditional Exclusion Include a Synthesis Gas Specification? C. Does the Conditional Exclusion Prohibit Oil-Bearing Hazardous Secondary Material From Being Placed on the Land Prior to Insertion in the Gasification System? D. Does the Conditional Exclusion Prohibit Oil-Bearing Hazardous Secondary Materials From Being Speculatively Accumulated Prior to Insertion in the Gasification System? E. Does the Conditional Exclusion Regulate Certain Metals in Residuals Generated from the Gasification Process? F. Does the Conditional Exclusion Require Additional Recordkeeping and Reporting Requirements? VI. What Will the Effect of the Final Rule Be on Recycling and Energy Recovery? VII. How Will These Regulatory Changes Be Administered and Enforced in the States? VIII. What Are the Costs and Benefits of the Final Rule? IX. Statutory and Executive Order Reviews. A. Executive Order 12866: Regulatory Planning and Review. B. Paperwork Reduction Act. C. Regulatory Flexibility Act. D. Unfunded Mandates Reform Act. E. Executive Order 13132: Federalism. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use. I. National Technology Transfer and Advancement Act of 1995. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations. K. Congressional Review Act. I. Statutory Authority The U.S. Environmental Protection Agency (EPA or the Agency) regulates the generation and management of hazardous waste under 40 CFR Parts 260 through 273 using the authority of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6901 *et seq.* II. Summary of This Action EPA is amending an existing exclusion from the definition of solid waste that applies to oil-bearing hazardous secondary materials generated at a petroleum refinery when these materials are recycled by inserting them back into the petroleum refining process. This exclusion is found at 40 CFR 261.4(a)(12)(i) and applies to oil-bearing hazardous secondary materials that are hazardous because they are listed in 40 CFR Part 261, Subpart D ( *e.g.* , K048-K052, K169-K170, and F037-F038), or because they exhibit a hazardous characteristic under Part 261, Subpart C. With today's final rule, the exclusion will be revised to add “gasification” to the list of already recognized petroleum refinery processes ( *e.g.* , distillation, catalytic cracking, fractionation, and thermal cracking units) into which oil-bearing hazardous secondary materials can be legitimately recycled. The Agency is also promulgating a definition for the term “gasification,” at 40 CFR 260.10, which applies only to this specific exclusion. The exclusion is conditioned on there being no land placement and no speculative accumulation of the oil-bearing hazardous secondary material prior to re-insertion into the petroleum refining process. The exclusion allows these materials to be inserted into the same petroleum refinery where they are generated, or sent directly to another petroleum refinery, and still be excluded under this provision. Provided the conditions of the exclusion are met, oil-bearing hazardous secondary materials will be excluded from the definition of solid waste at the point of generation. Similarly, the fuels and by-products manufactured from these excluded materials will also be excluded. 1 Residuals from the gasification process, like residuals generated from other recognized petroleum refining processes ( *e.g.* , fines from coking operations) will be classified as newly generated waste and would only be considered hazardous if they exhibit one or more of the hazardous waste characteristics. However, as discussed in the preamble for the **Federal Register** notice promulgating this exclusion at 63 FR 42128 (August 6, 1998), the exclusion extends only to materials actually reinserted into the petroleum refinery process, and any residuals generated from the processing of oil-bearing hazardous secondary materials prior to insertion into the petroleum refining process are designated as F037 waste. 1 The existing exclusion found at 40 CFR 261.4(a)(12)(i) also requires that the oil-bearing hazardous secondary material inserted into the petroleum refinery process does not result in the coke product exhibiting one or more of the hazardous waste characteristics. Subsequent to the promulgation of the exclusion in August 1998 (63 FR 42110), we proposed regulatory language that would create a new, separate exclusion to address the gasification of oil-bearing hazardous secondary materials. (See 67 FR 13684, March 25, 2002.) However, in the course of finalizing this rule, we have concluded that a new exclusion is unnecessary. Instead, we are following the original proposal suggested in the July 15, 1998 Notice of Data Availability
(NODA)(See 63 FR 38139) to add to 40 CFR 261.4(a)(12)(i) gasification, as one of the recognized petroleum refining processes to which oil-bearing hazardous secondary materials can be inserted and not be considered a solid waste under the Subtitle C hazardous waste regulations. The definition of gasification, however, is generally based on the March 2002 proposal, and comments and information developed as a result of both the NODA and that proposal. Today's final rule is based on information presented in the July 1998 NODA, the final rule for oil-bearing hazardous secondary materials for petroleum refining operations published in August 1998, and the March 25, 2002 proposed rule. The rulemaking record for this rule incorporates the rulemaking records for all of these notices. III. Background The exclusion at 40 CFR 261.4(a)(12)(i) provides operators of petroleum refineries with the ability to recycle materials generated by the refining of crude oil to manufacture additional fuels. In that rule, we specifically address certain reinsertion scenarios that involved common practices within the industry ( *e.g.* , coking and quench coking operations). Prior to finalizing these provisions, however, we issued a Notice of Data Availability
(NODA)specifically requesting comment on extending the exclusion to gasification—a process that also provides operators of petroleum refineries the ability to extract additional hydrocarbons from these materials by converting them into a synthesis gas. (See 63 FR 38139, July 15, 1998.) We stated in the NODA that gasification of oil-bearing hazardous secondary materials from the petroleum refining industry may be an activity warranting an exclusion from the definition of solid waste, because gasification also provides a means of recovering hydrocarbons from these materials and could be viewed as an additional process in crude oil refining. We also noted that a gasification system might compete with other petroleum refining operations ( *i.e.* , coking) for these same materials, which suggested to us that gasification is an alternative fuel production process—just one that was not being used extensively in the petroleum refining industry. The Agency did not add gasification in the 1998 rule, choosing to explicitly include only those petroleum refining processes discussed in the original proposal. In 2002 however, the Agency proposed a different, more ambitious exclusion for hazardous waste processed in a gasification system for the production of synthesis gas. In that proposal, we solicited comment on two conditional exclusions. The first was for oil-bearing hazardous secondary materials recycled in a gasification system operating at a petroleum refinery or at a different facility operating outside the petroleum refining industry. This proposal was different from what was proposed in the 1998 NODA, where gasification operations were specifically identified as part of the petroleum refining operation. A second, much broader exclusion, addressed all hazardous secondary material when processed in a gasification system for the production of synthesis gas. This broader exclusion is not being addressed as part of this rulemaking and is still under consideration by the Agency. 2 2 However, it is likely that if we chose to move forward with the broader exclusion, the Agency would issue a supplemental proposal before it makes any final decision. Because the proposed exclusion was addressing recycling scenarios for oil-bearing hazardous secondary materials outside petroleum refining operations, we proposed an expanded set of conditions. The conditions proposed included the conditions already included in 40 CFR 261.4(a)(12)(i) ( *e.g.* , no speculative accumulation and no land placement of the material prior to reuse), as well as conditions, that we believed, would ensure the legitimacy of the process as a production operation, rather than a waste treatment process. The first condition specified was a definition of the types of gasification systems capable of processing these oil-bearing hazardous secondary materials into synthesis gas. At the time, we were aware of a number of devices operating in the United States (U.S.) that could claim to be a type of gasification system, but did not gasify materials in the same manner, or to the same extent, as the gasification systems we considered for the proposal. We were concerned that these devices may be more similar to waste treatment processes than to production operations. Additionally, we proposed that the synthesis gas product from the gasification system meet the fuel specification promulgated for hazardous waste derived synthesis gas in the “Synthesis Gas Rule.” 3 The synthesis gas specification (or syngas spec) establishes specific physical parameters and concentration levels for contaminants and serves as a regulatory benchmark for classifying synthesis gas produced from hazardous waste as a fuel that can be readily marketed, rather than as a hazardous waste fuel (see 40 CFR 261.38(b)). 4 3 For purposes of this preamble discussion, we are using the term, “Synthesis Gas Rule” to refer to the regulation found at 40 CFR 261.38(b). This regulation was developed as part of the RCRA Comparable Fuels Exclusion that provides a conditional exclusion from RCRA Subtitle C for fuels which are produced from a hazardous waste, but which are comparable to some currently used fossil fuels. The entire preamble and rule can be found in 63 FR 33782, June 19, 1998. Hazardous Waste Combustors; Revised Standard; Final Rule—Part I: RCRA Comparable Fuel Exclusion; Permit Modification for Hazardous Waste Combustion Units; Notification of Intent to Comply; Waste Minimization and Pollution Prevention Criteria for Compliance Extensions. 4 We also solicited comment on a number of approaches to revise the synthesis gas specifications found at 40 CFR 261.38(b). (See 67 FR at 13694, March 25, 2002.) In particular we were interested in revised standards for the highly volatile metals and some organic constituents. Finally, we proposed that any co-product or residue generated by the gasification system be subject to the Universal Treatment Standards
(UTS)(found at 40 CFR 268.48) for six RCRA metals ( *i.e.* , antimony, arsenic, chromium, lead, nickel, and vanadium), if such co-product or residue was placed on the land. This condition was proposed to ensure legitimacy by applying the same land disposal provisions to any co-product and residual that would have existed had the oil-bearing hazardous secondary materials not been excluded from the definition of solid waste. We reasoned that this would eliminate any incentive to claim to be performing “gasification” for the real purpose of avoiding treatment of metals in residues that ultimately are placed on the land. In response to the proposal, a number of commenters generally supported the idea of promoting the reuse of oil-bearing hazardous secondary materials from petroleum refineries to produce additional fuels, although they also expressed concern with one or more of the proposed conditions. A number of other commenters, however, disagreed with our approach. Specifically, these commenters believed that full RCRA Subtitle C regulation for both the oil-bearing hazardous secondary materials and the gasification process was mandated by RCRA. These commenters stated that RCRA Subtitle C oversight is necessary because gasification is merely a poor combustion process, promoting the generation and release of toxic products of incomplete combustion (PIC), including dioxin-containing compounds. Conversely, other commenters questioned, as they had for the coking and quench coking operations in the original exclusion, whether we had any regulatory authority at all in this situation. (See discussion at 63 FR 42121-42129, August 6, 1998.) These commenters suggested that the gasification of oil-bearing hazardous secondary materials generated elsewhere in the refining process is merely the final step in extracting fuels from the crude oil feed to the refinery and is, therefore, part of an ongoing production process. We also received comments on the specific conditions we proposed as part of the exclusion. With regard to the specific technical issues for which we solicited comment, we received little response. That is, commenters did not provide data on the composition of gasification system residues or the composition of synthesis gas. In addition, limited data were received regarding the economics of operating a gasification system at a petroleum refinery or elsewhere. 5 While we solicited this information for both the proposed petroleum refinery exclusion and the broader exclusion applicable to all hazardous waste (see 67 FR at 13695, March 25, 2002), the lack of information submitted weighed heavily on our decision to limit today's rulemaking specifically to the petroleum refinery industry. 5 One commenter described the composition of their residue streams for their specific gasification system; however, no constituent concentration data was provided. In this case, the commenter described inorganic residues that vitrify into a leach resistant glass, solid particulates of baghouse dust and a dissolved salt scrubber solution. A few comments were received on the economics of the gasification process. Several commenters disagreed with our assessment of the economics of running a gasification system. One commenter disagreed with our statements that the cost of building and operating a gasification system is sufficient to guarantee high quality products. Other commenters stated that the changes we were proposing would not lower the regulatory barriers to using gasification as part of the production process. Major comments on today's rule are discussed elsewhere in this preamble. IV. Development of This Final Rule Through study of existing technical reports and papers published by the Department of Energy
(DOE)and others, the Agency was aware that gasification could be a part of the petroleum refining process. We solicited data to confirm this in our proposal; however, commenters did not provide a significant amount of new information, thus requiring EPA to once again check existing information and data to confirm our understanding of the gasification process and its use in petroleum refinery operations. In addition, we sought to confirm, through site visits, how gasification was integrated into the production process at some petroleum refineries. A. How Many Gasification Systems Are Currently Operating at Petroleum Refineries? Petroleum refineries use gasification for the conversion of low-value fuels and/or secondary material, such as petroleum coke, visbreaker tar and deasphalter pitch into synthesis gas. Synthesis gas can then be converted to usable products, such as hydrogen, ammonia and other chemicals, and/or used as a fuel to produce steam and electricity. Oil-bearing hazardous secondary materials generated at the petroleum refinery can also be co-gasified with these other materials to manufacture synthesis gas. In petroleum refining operations, electric power generation is a preferred use for the synthesis gas. For this purpose, the integrated gasification combined cycle
(IGCC)technology can be integrated into the petroleum refinery process. Except for the gasifier and the feedstock preparation units, many of the components in an IGCC system already exist at a petroleum refinery. Downstream of a gasifier, petroleum refineries, as part of their ongoing production processes, typically have the other components of an IGCC plant, including gas clean-up systems, Claus plants, heat recovery systems, and steam and gas turbines. Power generation for use within a petroleum refinery is not a new activity and based on our research, is widely practiced. Seldom, however, is enough power produced to allow it to be sold for external consumption. With the utilization of an IGCC plant, a refinery's internal power needs can be readily addressed with surplus power sold as a commodity to outside consumers. Presently, EPA has identified four gasification systems operating at petroleum refineries in the U.S. 6 ; one of these is an IGCC unit. 7,8,9 The second uses the synthesis gas to produce chemicals. The Agency is also aware of two petroleum refineries that operate units combining fluid coking with coke gasification, a process known as flexicoking. TM 10 6 Data pertaining to operational gasification systems processing secondary materials from petroleum refineries was developed from a review of the Gasification Technology Council's database. Based on information obtained from this database, there are 16 gasification systems operating at petroleum refineries outside the U.S. See email correspondence from Mr. James Childress, Executive Director, Gasification Technology Council to Ms. Elaine Eby, USEPA. Re: Operational Gasification Systems Processing Petroleum Refining Residues at Petroleum Refineries. July 2007. 7 *Experience With Low Value Feed Gasification at the El Dorado, Kansas Refinery* by Gary DelGrego. Texaco Power and Gasification. Presented at the 1999 Gasification Technology Conference. Recently, the Agency learned that the IGCC unit operating at the El Dorado, Kansas refinery was shut down in 2006. 8 IGCCs combine the gasification reactor with a combined cycle power turbine designed to use the synthesis gas. In IGCC systems, the synthesis gas is injected into the combustion turbine and ignited. The resulting high energy exhaust from the combustion of synthesis gas in the turbine is used to turn a generator. Steam and additional electric power is recovered in a follow-up heat recovery steam generator from the turbine's high temperature exhaust. 9 One of the largest markets for IGCC systems is the petroleum refining industry using petroleum residual feedstock, such as vacuum residual oil, deasphalter bottoms and petroleum coke. Petroleum refineries typically feature multi-train designs for high reliability and the co-production of power, steam and hydrogen for the refinery, with extra power being sold to third parties. *Major Environmental Aspects of Gasification-based Power Generation Technologies—Final Report.* U.S. Department of Energy. Office of Fossil Energy. National Energy Technology Laboratory. December 2002. 10 Sapre, Ajit, Kamienski, Paul, Phillips, Glenn, Wright, Marie, *Resid Upgrading Technology Options and Role of Flexicoking Technology.* ERTC Coking and Gasification Conference, Paris France. April 18, 2007. While petroleum refinery-based gasification units are currently in limited use in the U.S., interest in developing these systems is on the rise. 11,12,13 Many factors may be contributing to this interest, but we believe it is most likely related to the increasing cost of natural gas, an increasing interest in maximizing efficiencies in the petroleum refining process, manufacturing cleaner fuels, and reducing the generation of waste. Although limited in number, petroleum refinery-based gasification systems have demonstrated positive economic returns, while providing more flexible operations to address increases in raw material costs. 14 These facilities have shown that gasification systems can process lower value fuels or material commodities ( *e.g.* , petroleum coke and other petroleum secondary materials) into higher value fuels or chemical commodities. These systems have also demonstrated how well gasification fits into petroleum refinery operations and the advantages of doing so. 11 Gray, D. and Tomlinson. *Potential of Gasification in the U.S. Refining Industry.* United States Department of Energy, National Energy Technology Laboratory. June 2000. 12 Murano, John J. *Refinery Technology Profiles. Gasification and Supporting Technologies.* U.S. Department of Energy. National Energy Technology Laboratory. Energy Information Administration. June 2003. 13 Clayton, Stewart J., Steigel, Gary J., and Wimer, John G., Gasification Technologies Product Team, U.S. Department of Energy. *U.S. DOE's Perspective on Long-Term Market Trends and R&D Needs in Gasification.* Presented at the 5th European Gasification Conference. Gasification—The Clean Choice. Noordwijk, The Netherlands. April 8-10, 2002. 14 The addition of a gasification plant at an El Dorado, Kansas petroleum refinery resulted in significant economic benefits. Previously, the refinery was spending $12 to $14 million per year on power purchases from the local utility. With the implementation of the gasification system, the refinery reported paying only a few million dollars a year for stand-by services. In addition, the refinery saved about $1 million annually in both waste shipment and disposal costs and nitrogen costs. Steam production costs were reduced by more than half. Other benefits resulted from oxygen enrichment of the sulfur plant that enabled the refinery to process a wider range of high sulfur crudes. Furimsky, E. *Gasification in Petroleum Refinery of 21st Century.* Oil and Gas Science and Technology—Rev. IFP, Vol.54 (1999), No. 5, pp. 597-618. B. What Conclusions Have We Drawn About Gasification Systems Operating at Petroleum Refineries? This Unit IV.B. explains the overall rationale for the Agency's decision that oil-bearing hazardous secondary materials inserted into a gasifier are excluded from the definition of solid waste. Analyses supporting this decision are found elsewhere in this preamble and in the rulemaking record, including the Response to Comment document for this rulemaking. In each configuration reviewed, where petroleum refineries used petroleum coke alone or in combination with other petroleum feedstock (including oil-bearing hazardous secondary materials), we found that the systems are operated as part of the petroleum refining process and produce synthesis gas as a legitimate product to further enhance the petroleum refining operation. We believe that a gasification system, when operated at a petroleum refinery, will function as a component of the overall petroleum refinery process to produce synthesis gas as its main product. 15 In turn, synthesis gas can be used to manufacture usable products, such as hydrogen, ammonia and other chemicals, and/or used as a fuel to produce steam and electricity. Oil-bearing hazardous secondary materials generated by petroleum refineries, as well as other low-value fuels, are appropriate feed materials to gasification systems because these materials contain hydrocarbons that can be further processed into fuels or chemicals. The use of a gasifier to recover these hydrocarbons is ideal because the system not only operates to recover the hydrocarbon value for the production of a legitimate product, but can also process the non-fuel components to yield inorganic co-products ( *e.g.* , liquid or solid sulfur, ammonia). In manufacturing settings, gasification systems have historically been used to produce commodities and have not been operated to get rid of unwanted material. 16 At petroleum refineries, a gasification system complements the activities already being performed at the petroleum refinery, *i.e.* , the manufacture of fuels from crude oil. 15 “Gasification-based systems operated at a petroleum refinery are typically highly integrated processes. The complex consists of a number of distinct processing steps/plants. These are: feed preparation, gasifier, air separation unit (ASU), syngas clean-up, sulfur recovery unit (SRU), and downstream process options, such as cogeneration, hydrogen production, Fischer-Tropsch synthesis or methanol synthesis. Any given installation may or may not contain all of these processes depending on the feedstock used, products desired, and the availability of spare capacity in pre-existing plants at the petroleum refinery. For example, if the petroleum refinery has spare sulfur plant capacity or can revamp its existing sulfur plant to gain capacity, the sulfur plant would be considered outside the battery limits of the gasification complex.” Marano, John J., *Refinery Technology Profiles: Gasification and Supporting Technologies.* U.S. Department of Energy. National Energy Technology Laboratory. Energy Information Administration. June 2003.) 16 See review of Coal Conversion Technologies in *Perry's Chemical Engineer's Handbook,* Seventh Edition. Pages 27-13 through 27-25. McGraw-Hill. 1997. While some commenters have argued that gasification of oil-bearing hazardous secondary materials is more a waste management process involving incineration than a petroleum refining process, we refer to the conclusions drawn in a DOE report contrasting incineration and gasification. DOE concluded, and we agree, that gasification and incineration are distinct processes that can be distinguished by a number of factors. As discussed in the report, the factors distinguishing the two processes are:
(1)Incinerators are designed to maximize the conversion of feedstock to carbon dioxide and water; gasifiers are designed to maximize the conversion of feedstock to carbon monoxide and hydrogen;
(2)incinerators utilize large quantities of excess air; gasifiers utilize small quantities of oxygen;
(3)incinerators operate in a highly oxidizing environment; gasifiers operate in a reducing environment;
(4)incinerators discharge their flue gas to the environment as a waste; gasifiers utilize their synthesis gas for ongoing chemical, fuel production or power production as a product gas. 17 17 *A Comparison of Gasification and Incineration of Hazardous Waste—Final Report.* United States Department of Energy, National Energy Technology Laboratory (NETL). 3610 Collins Ferry Road. Morgantown, West Virginia 26505. DCN 99.803931.02. March 30, 2000. The Agency has concluded that gasification operations fall within the scope of normal operations at petroleum refineries—even when applied to material that has historically been managed as waste. The Agency believes that recognizing gasification as a petroleum refining process, capable of recycling oil-bearing hazardous secondary materials, achieves the resource recovery goals of RCRA without jeopardizing human health and the environment. Gasification is a desirable component of fuel manufacturing operations at a petroleum refinery because it ensures more efficient processing of crude oil and provides the petroleum refinery with the added flexibility to maximize its fuel production outputs. Therefore, we disagree with the view that the activity serves essentially as a waste management process. In today's final rule, we find that oil-bearing hazardous secondary materials generated as part of the petroleum refinery process and inserted into a gasification system located at a petroleum refinery, will serve as legitimate feedstock materials and that the gasification process, is a type of petroleum refining process warranting these materials an exclusion from the definition of solid waste. We have concluded that the operation of gasification systems at petroleum refineries is consistent with other processes that occur at petroleum refineries ( *e.g.* , fractionation, coking, quench coking) because:
(1)The activity takes place at a petroleum refinery;
(2)the system uses feedstock only from refinery operations;
(3)the system generates a synthesis gas that, is converted to multiple products, such as steam, electricity, hydrogen, as well as other chemicals;
(4)the products generated are consistent with the many types of products normally generated at petroleum refineries; and
(5)the system processes the raw material by manipulating the same variables, *e.g.* , hydrocarbons, as other refining processes that are universally accepted to be part of a petroleum refinery. 18 18 *Energy and Environmental Profile of the U.S. Petroleum Refining Industry.* United States Department of Energy. December 1998. V. This Final Rule Gasification systems, like other petroleum refining operations, are capable of recovering fuel value or chemicals from the recycling of oil-bearing hazardous secondary materials. As such, we believe it is appropriate to treat these materials in a manner consistent with the other processes used at petroleum refineries that recover fuel value or chemicals from crude oil—the basic raw material used in petroleum refining. Today, we are amending the exclusion found at 40 CFR 261.4(a)(12)(i), by adding gasification to the list of recognized petroleum refining processes. We are finalizing this change to:
(1)Prevent unnecessary confusion regarding the status of oil-bearing hazardous secondary materials from the petroleum industry recycled in a gasification system;
(2)promote the use of a technologically advanced method of extracting hydrocarbons from these materials; and
(3)remove regulatory restrictions that may limit the petroleum refining industry's ability to maximize the production of fuels and other commodities from crude oil, while minimizing the production of waste from the fuel production process. The Agency has decided to limit the scope of this exclusion to oil-bearing hazardous secondary materials that are gasified as part of the petroleum refining process for the production of synthesis gas. As such, we are retaining only the conditions applied to oil-bearing hazardous secondary materials in the existing exclusion at 40 CFR 261.4(a)(12)(i). We are, however, adding one additional condition, a definition for gasification, which is based on information presented in the 1998 NODA, as well as the March 2002 proposal and comments and information received in response to these notices. We have decided not to finalize the other conditions proposed in 2002. In large part, we have decided to eliminate these conditions because we are not extending this exclusion to oil-bearing hazardous secondary materials recycled at gasification systems operating outside the petroleum refining industry. The condition requiring the synthesis gas meet the specification we developed in the regulations at 40 CFR 261.38(b) has been removed because we now believe, based on the compelling arguments made by commenters and a review of our rationale for including it as a condition, that it was unnecessary and an inappropriate application of RCRA to a petroleum fuel product. Our decision is strongly influenced by the operational purpose of petroleum refineries—the production of fuels. Petroleum refineries create fuels for commercial markets, and we are convinced that these gasification systems operate within the reasonable scope of these operations. We have also removed the condition requiring that materials generated by the gasification system ( *i.e.* , co-products and residuals) not be placed on the land if they exceed the nonwastewater Universal Treatment Standards
(UTS)for antimony, arsenic, chromium, lead, nickel, and vanadium (found at 40 CFR 268.48). After further review, the Agency has determined that this condition is inconsistent with the current exclusion we are amending, and conflicts with how RCRA manages residues from excluded materials ( *i.e.* , wastes are excluded at the point of generation, provided the conditions of the exclusion are met). Further, these constituents are not expected to leach at levels above the UTS in the residuals from gasification at petroleum refineries. These changes are discussed below. A. Does the Conditional Exclusion Include a Definition for a Gasification System Used at a Petroleum Refinery? Yes. In today's final rule, we are promulgating a regulatory definition for gasification systems that are used at petroleum refineries. For this rule, gasification is defined as a process, conducted in any enclosed device or system, designed and operated to process petroleum feedstock, including oil-bearing hazardous secondary materials, through a series of highly controlled steps utilizing thermal decomposition, limited oxidation, and gas cleaning to yield a synthesis gas composed primarily of hydrogen and carbon monoxide gas. This final definition differs from the definition proposed in 2002 in a number of ways. We have:
(1)Deleted the reference to incinerators or industrial furnaces;
(2)removed the requirement for the gasifier to slag its inorganic feed at temperatures above 2000 degrees Fahrenheit; and
(3)removed the requirement that the unit be equipped with monitoring devices that ensure the quality of the synthesis gas. This revised definition reflects current information on gasification systems at petroleum refineries and addresses the significant concerns commenters raised regarding the proposed definition. More importantly, however, the definition reflects the primary purpose for using gasification at petroleum refineries, the production of synthesis gas. As such, we believe that we have retained the most important requirements of a gasification system operating at a petroleum refinery:
(1)That it is considered a process; and
(2)it utilizes petroleum feedstock to yield a synthesis gas. In the 2002 proposal (see 67 FR at 13690), we defined a gasification system as an enclosed thermal device and associated gas cleaning system (or systems) that does not meet the definition of an incinerator or industrial furnace (found at 40 CFR 260.10), and that:
(1)Limits oxygen concentrations in the enclosed thermal device to prevent the full oxidization of thermally disassociated gaseous compounds;
(2)utilizes a gas cleanup system or systems designed to remove contaminants from the partially oxidized gas that do not contribute to its fuel value;
(3)slags inorganic feed materials at temperatures above 2000 degrees Fahrenheit;
(4)produces a synthesis gas; and
(5)is equipped with monitoring devices that ensure the quality of the synthesis gas produced by the gasification system. We received numerous comments criticizing various aspects of our proposed definition. Some commenters argued the definition, as written, prohibited the potential use of a large number of gasification system designs that are in use around the world. More specifically, commenters stated that the definition eliminated one of the gasification designs currently processing petroleum residues in the U.S. because it did not operate at the specified temperature or slag the residual. 19 Generally, however, commenters urged the Agency to revise the definition to include all petroleum refinery-based units currently processing petroleum refining residues, or provide some type of site-specific variance to allow such units the opportunity to demonstrate that they can safely process refinery residues in their gasification system. While the development of a variance procedure would be a possible mechanism to evaluate those gasifiers not meeting the definition, the Agency believes that the definition of gasification being promulgated today addresses the concerns raised by the commenters and provides sufficient flexibility to allow for any number of gasification designs or configurations to be used within a petroleum refinery. As such, we have not included a variance provision as part of today's rule. 19 The Agency would also note that this gasification system operates outside a petroleum refinery and as such, would not be eligible for today's final rule. As previously mentioned, EPA has conducted a number of site visits to gasifiers located both on-site of a petroleum refinery and off-site and has continued to research the use of gasification at petroleum refineries. As a result of these efforts, we have concluded that gasification design and operation can vary substantially within the petroleum refining industry. We have also concluded and agree with commenters that a variety of different gasifier designs are capable of legitimately processing petroleum feedstock to produce a synthesis gas. 20 This has given us reason to reassess the need for specifically defining certain operating characteristics of a gasification system. Our revised definition of “gasification” allows additional flexibility in the design and configuration of gasification systems to process petroleum feedstock, including oil-bearing hazardous secondary materials, provided the gasification system produces a synthesis gas. 20 The reader is referred to the following DOE reports assessing the various types of gasification systems that can be used at petroleum refineries. Marano, John J., *Refinery Technology Profiles: Gasification and Supporting Technologies.* U.S. Department of Energy. National Energy Technology Laboratory. Energy Information Administration. June 2003.) and Gray, D. and Tomlinson. *Potential of Gasification in the U.S. Refining Industry.* United States Department of Energy, National Energy Technology Laboratory. June 2000. Several commenters questioned whether our definition should differentiate gasification from incinerators and industrial furnaces regulated under Subtitle C of RCRA. One commenter was particularly concerned that the proposed definition would require an affirmative determination by regulators that the gasification system did not meet the definition of incinerator or industrial furnace defined at 40 CFR 260.10. Additionally, the commenter questioned whether gasification systems also designed to recover hydrogen chloride
(HCl)(which gasification systems can be configured to recover), could also be defined as a type of industrial furnace, ( *i.e.* , halogen acid furnace) and thus not be able to use the exclusion. After weighing the value added to the definition by including the references to industrial furnaces and incinerators (defined at 40 CFR 260.10), we are persuaded that including the reference to hazardous waste burning incinerators and industrial furnaces in the definition is unnecessary and could lead to confusion between the public, the regulated community, and regulators on how to regulate these units. Accordingly, we have removed the references to incinerators and industrial furnaces from the final definition. We expect, however, that even with this change to the definition, that certain gasification systems could be confused with, or identified as, a type of industrial furnace. In these situations, where the design and operational characteristics appear to be shared between the two types of systems, we believe it is appropriate for regulators to review the predominant products and process design of the system in question. For example, if the system recovers only small amounts of synthesis gas fuel, but significant amounts of hydrogen chloride, and the design of the system does not differ substantially from industrial furnaces designed to recover hydrogen chloride ( *i.e.* , a substantial fraction of emissions are released to the atmosphere), such a system would more appropriately be classified as a type of industrial furnace, rather than a gasification system. The Agency received few comments on four of the operational requirements proposed as part of the definition of gasification system:
(1)Limits on oxygen concentrations in the enclosed thermal device to prevent the full oxidization of thermally disassociated gaseous compounds
(2)production of a synthesis gas;
(3)requirements for a gas cleanup system or systems designed to remove contaminants from the partially oxidized gas that do not contribute to its fuel value; and
(4)requirements for monitoring devices that ensure the quality of the synthesis gas produced by the gasification system. In general, commenters did not have specific technical issues with the provisions, but thought that the provisions were unclear and would benefit from additional clarification. For example, commenters stated that the requirement relating to monitoring devices would benefit from EPA identifying the type of monitoring equipment required. In the case of the requirement for monitoring devices, consideration of this condition is no longer germane based on our determination that petroleum gasification is a part of the petroleum refining operation. In today's rule, we have retained, with slight modifications, three of the operational requirements. Changes have been made to the definition to eliminate redundancy and provide a more clear and concise regulatory definition. The revised definition retains the key operational requirements of a gasification system operating at petroleum refinery—thermal decomposition, limited oxidation, gas cleanup, and production of a synthesis gas. This ensures that the exclusion applies only to gasification systems designed and operated in a manner that promotes the conversion of hydrocarbons found in the oil-bearing hazardous secondary materials into a synthesis gas fuel. The operational requirement that received the most comment was for a gasification system to “slag inorganic feed materials at temperatures above 2000 degrees Fahrenheit.” Commenters were divided on the need for such a requirement. Some believed that the slagging criteria generally would result in a non-leachable residue, a “preferred residual matrix.” Others stated that the temperature requirement was arbitrary and not technically supportable. Additional commenters questioned the usefulness of the term slagging and the Agency's rationale for deciding to prohibit non-slagging gasifiers from the exclusion. These commenters pointed to the fact that the residues would be under RCRA Subtitle C jurisdiction if they exhibited a hazardous waste characteristic based on the content and leachability of the toxic metals. We had proposed this requirement to address two issues:
(1)To ensure that gasification systems processing excluded materials operate at a temperature sufficient to slag inorganic components found in the materials, so metals would not leach from the residue; and
(2)to reduce the occurrence of unreacted carbon-containing compounds in the residue formed by the gasification system. After review of all the comments, and a re-examination of our site visit reports and available technical reports, we have determined that this requirement is not needed and would inappropriately restrict those gasification systems and configurations that could be effectively used at petroleum refineries for the production of synthesis gas fuels. We have found that classifying a gasifier as slagging or non-slagging has no relationship to a gasification system's overall ability to effectively process hydrocarbons for the production of synthesis gas fuel. Similarly, if a gasifier generates a residual that exhibits one or more of the hazardous waste characteristics, it will be subject to the RCRA Subtitle C hazardous waste regulations. We believe that this should provide adequate incentive for petroleum refineries to consider the potential benefit of slagging gasifiers verses non-slagging units. 21 Any further requirement by EPA would only interfere with the refineries' ability to most effectively achieve the same environmental endpoint. 21 Although EPA did not rely on this information in its decision-making, data analyzed by the Agency suggests that it is highly unlikely that leachable metal concentrations in residuals from gasification of secondary material from petroleum refining operations will be significant. See the memorandum to the record from Ms. Elaine Eby, USEPA. *Re:* Characterization of Petroleum Refining Waste and Possible Gasification Scenarios. August 2007. In the proposed rule, we further stated that gasifiers generally do not have direct emissions to the atmosphere. Several commenters disagreed with this conclusion and suggested that potential releases of toxic and hazardous air pollutants
(HAP)can occur during other steps in the gasification process. These steps include, feedstock preparation, gas cleanup, product recovery, and slag quenching, as well as during start-up, shutdown or operational emergencies of the gasification system. These commenters further stated that the current Clean Air Act
(CAA)regulations may fail to properly address potential risk to human health and the environment posed by these releases. As a result, these commenters urged EPA to make a regulatory determination that gasifiers should be identified as an industrial furnace and subject to all RCRA/CAA hazardous waste combustion regulations. In the proposal, (See 67 FR at 13688), we recognized that gasification systems are designed with release vents or flares that operate during emergencies or malfunctioning operations. Flares and release vents are necessary to prevent damage or catastrophic failure of the gasification system in the event of a major malfunction. These types of relief systems are common at facilities that manufacture products using thermal processes. Furthermore, the operation of flares and release vents is regulated by each facility's Title V CAA permit. Our decision to exclude, from the definition of solid waste, oil-bearing hazardous secondary materials generated at a petroleum refinery and inserted back into the petroleum refining process has been guided by a determination that gasification is a legitimate petroleum refining process that results in the manufacture of a synthesis gas product. (See discussion in Section IV of this preamble.) This decision allows the beneficial use of petroleum refining oil-bearing hazardous secondary materials for the manufacturing of a synthesis gas fuel that can be used for the production of steam, and/or power. Therefore, we do not agree with the commenter's suggestion that gasification systems operating at petroleum refineries processing these materials are waste management units (e.g., incinerators) and that any potential air emissions should be subject to all RCRA/CAA hazardous waste combustion regulations. Emissions at a petroleum refinery operating a gasification system will be evaluated. However, these emissions will be evaluated for compliance with regulations for petroleum refining operations under the authority of the CAA. 22 22 See 72 FR 14734 (March 29, 2007), Risk and Technology Review, Phase II, Group 2. B. Does the Conditional Exclusion Include a Synthesis Gas Specification? No. In today's final rule, there is no condition requiring the synthesis gas to meet certain physical and/or constituent specifications. In the 2002 proposal, the Agency included a condition that required the synthesis gas to meet the specification for hazardous waste derived synthesis gas found at 40 CFR 261.38(b). We proposed to apply the synthesis gas specification because we believed it would ensure that the synthesis gas produced was a legitimate fuel product, and was an appropriate condition considering we were proposing to allow oil-bearing hazardous secondary materials to be gasified at facilities outside a petroleum refinery. In addition, because the Agency was taking comment on whether to expand the exclusion to address all hazardous secondary materials generated in other industries, we considered such a provision to be important. In the development of the final rule, however, we have concluded, based on analysis of the comments and further review of petroleum refinery-based gasification systems that such a condition is unnecessary and an inappropriate use of RCRA to regulate a fuel product manufactured at petroleum refineries. The majority of the comments received did not specifically address the need for a synthesis gas specification, but rather addressed the overall inadequacy of the synthesis gas specification finalized in the “Synthesis Gas Rule.” Commenters suggested that the specification was too lenient and not drawn from appropriate data. 23 Several commenters also reminded the Agency of possible pending litigation. 24 23 In the proposed rule, we requested comment on a number of approaches to revise the synthesis gas specification found at 40 CFR 261.38(b). In particular, we were interested in soliciting comment on the specifications for highly volatile metals and certain organics. 24 Commenters took issue with the inadequacy of the synthesis gas specification found at 40 CFR 261.38(b). Commenters believed that the allowable concentration limits for highly volatile metals and certain organics were excessively high, the BTU value was too low, and the specification was not based on actual synthesis gas from a gasification unit. Commenters noted the Agency was challenged on the synthesis gas specification in the Comparable Fuels Rule by the Sierra Club, Natural Resources Defense Council, and the Environmental Technology Council in *Chemical Manufacturers Association* v. *EPA* , No. 98-1375 (DC Cir. Filed August 17, 1998). The case is currently being held in abeyance by the DC Circuit Court. Because the Agency has decided not to require the synthesis gas fuel meet the specifications found at 40 CFR 261.38(b), specific comments on the appropriate specification requirements are not being addressed in this rulemaking. Irrespective of the concerns with the details of a synthesis gas specification, only a few commenters supported establishing a synthesis gas specification. These commenters generally agreed with the Agency's proposed premise of applying the synthesis gas specification to ensure legitimacy of the gasification process and the quality of the synthesis gas. However, other commenters suggested that applying the synthesis gas specification was without basis and inappropriate. Commenters reasoned that the purpose of 40 CFR 261.38 was to provide an exclusion from the definition of solid waste for synthesis gas generated by the gasification of hazardous waste. Under the 2002 proposal, they believed EPA was establishing that oil-bearing hazardous secondary materials generated at a petroleum refinery and re-inserted into a gasifier were excluded from the definition of solid waste because gasification was part of the production process. Given that, commenters questioned the Agency's rationale for including a hazardous waste specification to a manufactured fuel product, i.e., a product generated from a fossil fuel. Commenters reasoned that operators of gasification systems did not need a specification for synthesis gas any more than they needed a RCRA specification for gasoline, propane, petroleum coke, or any other legitimate product from a petroleum refining operation. Additionally, some commenters suggested that any questions regarding the quality of the synthesis gas were answered by the use of the synthesis gas as a fuel in power, steam, or hydrogen production on-site (subject to CAA regulations) and should serve to ensure that the synthesis gas was, in fact, a legitimate fuel. The Agency agrees with the commenters. In this rule, we have determined that gasification is a part of the petroleum refining process and that oil-bearing hazardous secondary materials generated at a petroleum refinery and reinserted back into a gasification system located at a petroleum refinery are excluded from the definition of solid waste, provided the conditions of the exclusion are met. Hence, the Agency concludes that gasification is a legitimate fuel process that does not require a synthesis gas specification as a condition to ensure its legitimacy. Gasification systems when operated at a petroleum refinery take petroleum feedstocks and convert them into a synthesis gas comprised primarily of hydrogen, carbon monoxide, carbon dioxide and methane. Petroleum feedstocks to these systems can include petroleum coke, visbreaker tars, deasphalter pitch, as well as oil-bearing hazardous secondary materials. Available information suggests that the synthesis gas composition remains consistent regardless of the petroleum input feed. Furthermore, when used as a fuel for power generation, information available to the Agency shows that turbine specifications and other equipment specifications drive the fuel specification requirements of the synthesis gas fuel. As such, the Agency has also concluded that applying the synthesis gas specifications at 40 CFR 261.38 as presented in the 2002 proposal does not provide an additional assurance that legitimate fuel operations are occurring at gasifiers located at petroleum refineries. Therefore, in today's final rule, we are not including a condition that requires the synthesis gas generated by the gasification system to meet the specification of 40 CFR 261.38(b). The Agency has determined that the application of a hazardous waste derived synthesis gas specification is an inappropriate use of the synthesis gas specification for gasification operations at a petroleum refining. However, we note that today's exclusion from the definition of solid waste does not exempt the device from regulation under the applicable CAA standard for the gasification device, co-product recovery units, or any related infrastructure designed to use the synthesis gas fuel to produce electricity. C. Does the Conditional Exclusion Prohibit Oil-Bearing Hazardous Secondary Materials From Being Placed on the Land Prior to Insertion in the Gasification System? Yes, the conditional exclusion we are amending (40 CFR 261.4(a)(12)(i)) prohibits oil-bearing hazardous secondary materials from being placed on the land prior to insertion into the petroleum refining process. This prohibition will not change with the addition of gasification as a listed petroleum refining process. In the proposed rule, we explained our view that this condition (i.e., no placement on the land prior to re-insertion into the petroleum refining process) further defines gasification of excluded oil-bearing hazardous secondary materials as a legitimate refining operation for processing these materials because it requires that the excluded materials be handled as a valuable feed to the gasification system. We stated that we knew of no gasification system (or for that matter, any petroleum refinery) which stored these materials on the land, and that to do so would indicate that such oil-bearing hazardous secondary materials are being handled more like waste, and not as a feedstock (since because of the physical characteristics of these oil-bearing materials, the potential for them not to be released could no longer be assured, and there could be large-scale losses of the secondary material due to land placement). Thus, we reasoned that oil-bearing hazardous secondary materials from the petroleum refinery process should preclude storing the material in anything other than a tank, container, or some other device that would contain the material because as far as we knew, the oil-bearing hazardous secondary materials were generally comprised of tar-like, oily substances not amenable to land storage or placement. Most of the commenters agreed with our position that some type of restriction was appropriate to prevent the oil-bearing hazardous secondary materials from being placed or stored on the land. However, some commenters did not completely agree with our characterization of these materials (i.e., tar-like oily substances) and suggested that the prohibition take into account the physical characteristics of the oil-bearing hazardous secondary materials before a total prohibition on land placement was implemented. For example, some commenters believed that the prohibition should only apply to those hazardous secondary materials that are tar-like oily substances, while other commenters suggested that we modify the wording of the prohibition to allow for land placement of hazardous secondary materials if it would not endanger the environment. One commenter stated that the hazardous secondary materials they received from a petroleum refinery could be described as chunky, angular, blocky or coarse particulates and could be safely managed on the land. However, these commenters did not provide EPA with any characterization data that would support their claims. Given that these hazardous secondary materials would be hazardous waste if discarded instead of being gasified, and given that land placement of these types of oil-bearing hazardous secondary materials is not typical before they are reinserted back into the petroleum refinery, we see no reason to relieve them from the existing prohibition against land placement for all oil-bearing hazardous secondary materials prior to re-insertion into the petroleum refining process (i.e., gasified). This approach maintains full regulatory consistency with the exclusion found at 40 CFR 261.4(a)(12)(i) which is being amended today to include gasification as an identified petroleum refining process. D. Does the Conditional Exclusion Prohibit Oil-Bearing Hazardous Secondary Materials From Being Speculatively Accumulated Prior to Insertion in the Gasification System? Yes. In today's rule, the conditional exclusion we are amending (40 CFR 261.4(a)(12)(i)) includes the requirement that the oil-bearing hazardous secondary materials not be speculatively accumulated prior to insertion into the petroleum refining process. This provision will not change with the addition of gasification as a listed petroleum refining process. In the proposed rule, we stated that the speculative accumulation provision ensures that legitimate quantities of oil-bearing hazardous secondary materials are being recycled and re-inserted into the petroleum refining process rather than being stored to avoid regulation. We reasoned that this condition was necessary to assure that recycling actually occurs, and that such materials are not discarded by being stored for extended periods of time. Furthermore, we stated that this condition is consistent with the no speculative accumulation condition we adopted for excluded oil-bearing hazardous secondary materials returned to the petroleum refinery process (40 CFR 261.4(a)(12)(i)). As such, we are promulgating, as proposed, the speculative accumulation provision for oil-bearing hazardous secondary materials prior to their insertion into the petroleum refinery process. This requirement should ensure that such materials are not “over accumulated,” an indication of discard, but are being legitimately recycled, which maintains regulatory consistency with the existing exclusion we are amending at 40 CFR 261.4(a)(12)(i). E. Does the Conditional Exclusion Regulate Certain Metals in Residuals Generated from the Gasification Process? No. In today's final rule, we are removing the proposed condition that materials (both co-products and residues) generated by the gasification system not exceed the nonwastewater Universal Treatment Standards
(UTS)(40 CFR 268.48) for antimony, arsenic, chromium, lead, nickel, and vanadium when placed on the land. 25 Under today's rule, and consistent with both the proposal and the existing exclusion found at 40 CR 261.4(a)(12)(i), we are classifying residues generated after the gasification process as newly generated. The determination as to whether the gasification residues (i.e., waste) or any other residue generated after reinsertion into the petroleum refining process are hazardous will be based on whether the residues exhibit a hazardous waste characteristic(s) when generated (i.e., after the oil-bearing hazardous secondary material is gasified). Should a residue exhibit a characteristic, such as leaching toxic metals at levels above the prescribed standards, it will be required to be managed in compliance with all applicable RCRA hazardous waste regulations, including the Land Disposal Restrictions (see 40 CFR 268.48). 26 As for co-products, they are fully excluded as products and are outside RCRA jurisdiction unless discarded and/or disposed. 25 Universal Treatment Standards
(UTS)are concentration-based treatment levels that must be met before a RCRA hazardous waste can be land disposed. These treatment standards can be found in 40 CFR 268.40. 26 If the Agency receives evidence to suggest that these gasification residues routinely have the potential to adversely affect human health and the environment, the Agency could list them as hazardous under RCRA. In our proposed rule, we requested comment on a condition to the exclusion establishing leachate limits for six toxic metals in the gasification co-products and residuals prior to any placement on the land. We considered this condition to ensure that co-products and residues generated by the gasification process and that were to be placed on the land did not contain toxic metals with a potential for leaching greater than allowed by the requirements of the Land Disposal Restrictions
(LDR)program. (See 67 FR at 13691, March 25, 2002.) In developing this possible condition, we were influenced by the condition established for hazardous waste-derived products that are used in a manner constituting disposal (see 40 CFR 266.20). These materials are required to meet the appropriate LDR treatment standards prior to use as products applied to the land (e.g., fertilizers). We reasoned that requiring this same condition for co-products and residuals would ensure legitimate fuel manufacturing by applying the same land disposal provisions to the co-products and residuals that would have existed had the material (i.e., the listed waste) not been excluded from the definition of solid waste. Further, it was reasoned that this proposed condition would be needed to assure that the gasification system is operated for the purpose claimed—conversion of organic matter in the hazardous secondary materials into fuels (or intermediates), while removing metals from raw synthesis gas and trapping those metals in an inert matrix. The levels in the proposed condition would provide a means of quantifying this premise. We received comments that both supported and opposed this condition. Commenters opposed to the condition stated that there was no need to impose the UTS requirements, beyond what the regulations ( *e.g.,* 40 CFR 261.4(a)(12)(i)) already required for residues generated from the petroleum refining process ( *i.e.,* the characteristic test), and that EPA had provided no rationale for imposing the additional UTS requirements. As proposed, the condition would apply to any residual regardless of its characteristic determination. Other commenters, however, believed that EPA had not gone far enough, and that the residuals generated during the gasification process should be certified to meet all the nonwastewater UTS (both organic and inorganic constituents). Without such limits on hazardous organics, the commenters argued that substantial releases to the environment might occur because these residuals would be allowed in landfills not subject to subtitle C regulations. The Agency rejects the suggestion of the commenters that gasification residuals should be tested for all UTS constituents. As a result of studies and analyses conducted by EPA in support of the listing determinations for petroleum refinery wastes, as well as development of the LDR treatment standards for these wastes, the characterization of these materials is well documented, and does not represent all the UTS constituents. The suggestion that it is necessary to require these residuals meet all the nonwastewater UTS for all organic and inorganic constituents is therefore without technical justification. In response to the commenters arguing against imposing the UTS requirements for the six metals, the Agency set about establishing further justification for this condition. This began with a more detailed analysis of the characterization data for petroleum refining waste collected as part of the LDR program. We reviewed available data presented in various Treatment Technology Background Documents to get a better understanding of the total concentration levels of these six metals in the listed waste. As a result of this effort, we were able to collect concentration data for nine listed petroleum refining wastes. Next, based on information collected as part of the proposed rule, as well as information presented in two recent DOE studies, we developed gasification scenarios using a combination of petroleum coke and oil-bearing hazardous secondary materials as feedstock to gasifiers with different feed rates. 27 As a result of this analysis, we concluded, based on two scenarios we believe are most representative of possible gasification activities at petroleum refineries, that gasification residues would achieve the UTS levels for all metals, except for vanadium in one scenario and chromium in the other. With regard to chromium, the concentration level was below the characteristic level, but above the UTS level. As for vanadium, it was determined that petroleum coke (a product) contributed most of the vanadium to the gasifier, and that vanadium concentrations in the gasification residuals would not be affected when feeding petroleum coke alone or in combination with oil-bearing hazardous secondary materials. 27 See the memorandum to the record from Ms. Elaine Eby, USEPA. Re: Characterization of Petroleum Refining Waste and Possible Gasification Scenarios. August 2007. Although this analysis showed chromium levels above the UTS in one scenario, the Agency is convinced that chromium concentrations in oil-bearing hazardous secondary materials have decreased from the levels found in our characterization studies, which were conducted in 1988, 1992, and 1998 and therefore will be lower than what we used in our analysis ( *i.e.* , the gasification residuals will have concentration levels below the UTS). This is based on information in the preamble for the August 1998 listing rule promulgating the exclusion at 261.4(a)(12)(i) that indicates that chromium levels in these hazardous secondary materials will decrease due to a prohibition on chromium-based water treatment chemicals in industrial cooling towers, as a result of Clean Air Act requirements (see 40 CFR part 63, subpart Q.) 28 Furthermore, EPA believes that not only for chromium, but lead concentrations (which are below the UTS levels in the analysis we conducted) in the secondary materials will decline with time. This is due to the overall reduction in the use of these metals throughout the refinery ( *e.g.,* leaded gasoline is no longer produced). In conclusion, as a result of the additional analysis conducted in response to commenters concerns regarding the imposition of the UTS requirements, as well as our decision to amend 40 CFR 261.4(a)(12)(i) because we have determined that gasifiers are a part of the petroleum refinery process, the Agency has eliminated the condition requiring material generated by the gasification system to meet the UTS standards for antimony, arsenic, chromium, lead, nickel, and vanadium prior to their placement on the land. As such, oil-bearing hazardous secondary materials inserted to the gasification system, like other petroleum refining processes, are excluded from the definition of solid waste, at the point of generation, provided the conditions of the exclusion are met. Residuals generated after the gasification process are, therefore, considered a new point of generation. If a gasifier residual is determined to be characteristically hazardous, it must be managed as a hazardous waste (if discarded), including being treated to the UTS. These standards would require treatment for the characteristic, as well as any underlying hazardous constituents reasonably expected to be present. Underlying hazardous constituents include both organic and inorganic constituents. This is consistent with the current petroleum refinery exclusion found at 40 CFR 261.4(a)(12)(i), and addresses our greatest concern—assuring that gasification residues do not create potential risks when disposed. 28 On September 8, 1994 (59 FR 46339), EPA issued a final MACT rule that eliminated the use of chromium-based water treatment chemicals and subsequently chromium compound emissions from industrial process cooling towers. As a final note, the Agency distinguishes between residuals generated from the gasifier and those residuals generated from the processing of oil-bearing hazardous secondary materials before they are reinserted into the petroleum process. EPA discussed in the final rule for the petroleum refinery exclusion (63 FR 42110, August 6, 1998), that some oil-bearing hazardous secondary materials cannot be directly inserted into a particular petroleum refining process, and therefore may require some type of processing or preparation beforehand ( *e.g.* , centrifugation, desorption, settling, etc.). See 63 FR at 42113-42114, 42128. These activities are generally viewed as part of normal petroleum refining operations. During the 1998 rulemaking, however, we were particularly concerned with the management of any residuals generated from the processing or recycling of oil-bearing hazardous secondary materials prior to or before insertion back to the petroleum refining process, and thus developed an approach to ensure that if such residuals are discarded, that they continue to be managed appropriately. In the 1998 final rule, we clarified that the exclusion for oil-bearing hazardous secondary materials returned to the petroleum refining process only extends to the materials actually inserted into the petroleum refinery process, and any residuals generated from recycling or processing oil-bearing hazardous secondary materials prior to insertion into the refining process that:
(1)Would have otherwise met a listing description when originally generated; and
(2)are disposed of or intended for disposal, are designated as F037 waste and must be managed in accordance with all the applicable Subtitle C RCRA hazardous waste requirements. The language was intended to clarify that residuals that are not ultimately inserted are not excluded, and that these discarded residuals are classified as F037 waste. The Agency did not include in the F037 listing residuals generated after reinsertion into the petroleum refining process, *e.g.* , coke fines from coking operations. These types of residues generated after insertion into the petroleum refining process, are considered newly generated waste subject to the characteristic test, and not F037 waste. This is the exact reasoning we are applying to today's rule, *i.e.* , if residuals are generated as a result of the processing of oil-bearing hazardous secondary materials prior to gasification, and if these residuals are intended for discard and the original oil-bearing hazardous secondary materials was a listed waste, these residuals are classified as F037 waste. Similarly, if the original waste exhibited one or more hazardous waste characteristics, and the processing, prior to gasification, resulted in a residual destined for disposal, that residue would be characterized as a newly generated waste, subject to the characteristic test. F. Does the Conditional Exclusion Require Additional Recordkeeping and Reporting Requirements? No. Under today's rule, no additional recordkeeping or reporting requirements will be required. Under the exclusion at 40 CFR 261.4(a)(12)(i), oil-bearing hazardous secondary materials are not solid wastes, for purposes of Subtitle C regulation, and therefore are not (by definition) hazardous wastes from the point of generation. Therefore, requirements that normally apply to the management of hazardous wastes, such as notification or the use of a hazardous waste manifest, do not apply to these materials, provided the conditions of the exclusion are satisfied. 29 29 It should be noted, however, that under 40 CFR 261.2(f) documentation is necessary to demonstrate that the conditions of an exclusion have been met. 40 CFR 261.2(f) does not contain specific record keeping requirements, but it does require the respondent to bear the burden of showing, through appropriate documentation, that the excluded material is being processed in a manner that meets the conditions in the claimed exclusion. In the approach used for the proposed rule, oil-bearing hazardous secondary materials could be processed in a gasification system either on-site or off-site of a petroleum refinery ( *i.e.* , materials could be sent to gasifiers at facilities that are not located within petroleum refineries (SIC 2911)). We noted that allowing these materials to go to facilities outside the petroleum refining industry was somewhat different and more expansive than what was permitted for the other processes previously included in 40 CFR 261.4(a)(12)(i). Because of this expansion, we asked for comment on whether additional records and/or reporting requirements might be necessary. We proposed this alternative strategy ( *i.e.* , gasification facilities could be located either on-site or off-site of a petroleum refinery) because we believed that excluding oil-bearing hazardous secondary materials processed in gasification systems operating physically outside of a petroleum refinery could still be an extension of the petroleum refining process. It is not unusual for the refining of oil into fuels to occur at multiple locations. Many commenters generally were supportive of allowing off-site facilities as part of the exclusion. However, there were some commenters that strongly believed that gasification should only occur at a petroleum refinery. Commenters supporting off-site gasification agreed with the Agency's assessment that any gasification process operated off-site would be technically indistinguishable from the types of gasifiers operated at a petroleum refinery. One commenter believed that generators would be better served by transporting the oil-bearing hazardous secondary materials to a centralized processing facility for conversion to synthesis gas, and if the exclusion is not extended to “off-site” gasification, the exclusion would be meaningless and have limited, if any, practical use. The Agency recognizes and agrees, in part, with the potential flexibility afforded to petroleum refineries that have an option of using off-site gasification facilities ( *i.e.* , gasification systems not located at a petroleum refinery). However, we have decided not to promulgate this aspect of the rule. The Agency has concluded that a gasification operation located off-site of a petroleum refinery is inconsistent with our basic premise for promulgating this exclusion—gasification is a part of the petroleum refining process. As such, EPA is electing to simplify its approach today by allowing this exemption only for facilities that clearly meet the definition of petroleum refineries. 30 It should be noted, however, that under the provisions of the exclusion, oil-bearing hazardous secondary materials may be inserted into the same petroleum refinery where they are generated, or sent directly to another petroleum refinery, and still be excluded under this provision. 31 30 It should be noted that petroleum refineries that ship oil-bearing hazardous secondary materials to an off-site gasification system not located at a petroleum refinery (SIC 2911) would not meet the conditions of this exclusion and would be subject to the appropriate Subtitle C regulations. See, for example, the Synthesis Gas Rule at 40 CFR 261.38(b). Furthermore, a gasification facility that accepts oil-bearing hazardous secondary materials from a petroleum refinery can not claim to be part of the petroleum refining process and utilize this exclusion, even if the synthesis gas is sent back to the petroleum refinery for use. However, we do recognize that there will be situations where petroleum gasification facilities are built in close proximity ( *e.g.* , adjoining land) and are part of the petroleum refining facility. In general, such facilities would be within the scope of the exemption being promulgated today. 31 See the February 8, 2002 letter from Mr. Robert Springer, Director of the Office of Solid Waste to Mr. Rob Short, Managing Director Tetra Process Services, L.C. In this letter, Mr. Short posed twelve detailed questions concerning the regulatory status of oil-bearing hazardous secondary materials under the RCRA. Specifically, clarification was requested on numerous aspects of the exclusion at 40 CFR 261.4(a)(12)(i). VI. What Will the Effect of the Final Rule Be on Recycling and Energy Recovery? Predicting the impacts of any rule is a difficult task. In most cases, the marketplace determines the adoption of new technologies and/or practices. In the case of gasification, it is doubly difficult as both the waste management market and the fuels market will impact adoption of the technology more than any regulatory provision. Today's conditional exclusion provides operators of petroleum refineries an option to consider. This does not mean that every petroleum refinery will adopt this technology as part of their operations, but it may mean that some will adopt the technology to provide for power or steam production less expensively, or for the generation of hydrogen used elsewhere in the petroleum refining process, or sold as a fuel or feedstock. What the rule does do is provide operational flexibility to allow petroleum refiners to adopt a technology that generates valuable products as a result of processing oil-bearing hazardous secondary materials that can and have historically been managed as solid and hazardous waste. With this rulemaking, petroleum refiners can decide whether to invest in the development of gasification with the knowledge that it will also allow them to increase their production efficiency and reduce their costs through the conversion of these materials. VII. How Will These Regulatory Changes Be Administered and Enforced in the States? Under section 3006 of RCRA, EPA may authorize qualified states to administer their own hazardous waste programs in lieu of the federal program within the state. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized states have primary enforcement responsibility. The standards and requirements for state authorization are found at 40 CFR Part 271. Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA), a state with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that state. The federal requirements no longer applied in the authorized state, and EPA could not issue permits for any facilities in that state, since only the state was authorized to issue RCRA permits. When new, more stringent federal requirements were promulgated, the state was obligated to enact equivalent authorities within specified time frames. However, the new federal requirements did not take effect in an authorized state until the state adopted the federal requirements as state law. In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was amended by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized states at the same time that they take effect in unauthorized states. EPA is directed by the statute to implement these requirements and prohibitions in authorized states, including the issuance of permits, until the state is granted authorization to do so. While states must still adopt HSWA related provisions as state law to retain final authorization, EPA implements the HSWA provisions in authorized states until the states do so. Authorized states are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements. RCRA section 3009 allows the states to impose standards more stringent than those in the federal program (see also 40 CFR 271.1). Therefore, authorized states may, but are not required to, adopt federal regulations, both HSWA and non-HSWA, considered less stringent than previous federal regulations. Today's exclusion is finalized pursuant to non-HSWA authority and is considered to be less stringent than the current federal requirements. Therefore, states will not be required to adopt and seek authorization for the finalized changes. EPA will implement the changes to the exemptions only in those states which are not authorized for the RCRA program. Nevertheless, EPA believes that this rulemaking has considerable merit, and we thus strongly encourage states to amend their programs and become federally-authorized to implement this rule. VIII. What Are the Costs and Benefits of the Final Rule? The costs and benefits of any regulatory action are traditionally measured by the net change in social welfare that it generates. The Agency's economic assessment conducted in support of today's final rule evaluates costs, cost savings (benefits), waste quantities affected, and other impacts, such as environmental justice, children's health, unfunded mandates, regulatory takings, and small entity impacts. To conduct this analysis, we prepared a baseline characterization for waste management and gasification at petroleum refineries, developed and implemented a methodology for examining impacts, and followed appropriate guidelines and procedures for examining equity considerations, children's health, and other impacts. Because EPA's data are limited, the estimated findings from these analyses should be viewed as national, not site-specific impacts. Proper baseline specification is vital in the assessment of incremental costs, benefits, and other economic impacts associated with a rule that would expand the exclusion for oil-bearing hazardous secondary materials that are utilized to generate fuels and other chemicals. The baseline essentially describes the world absent any expanded exclusion. The incremental impacts of today's final rule are evaluated by predicting post-rule responses with respect to baseline conditions and actions. The baseline, as applied in this analysis, is assumed to be the point at which the final rule is published. A full discussion of baseline specifications is presented in the economic assessment document completed for this rule. 32 32 *Assessment of the Potential Costs, Benefits, and Other Impacts of the Exclusion for Gasification of Petroleum Oil-Bearing Secondary Materials—Final Rule* , August 2007. As outlined above, the final rule creates an exclusion for oil-bearing hazardous secondary materials generated at a petroleum refinery if this material is used at a petroleum refinery as an input for the production of synthesis gas. Because not all petroleum refineries will elect to include a gasification system as part of their petroleum refinery, the impacts of the final rule will depend significantly on the number of petroleum refineries that decide to adopt the technology and use the exclusion and the baseline waste management practices of these petroleum refineries. To account for these factors in this analysis, a bottom-up analytic approach was developed for estimating impacts based on the decisions of individual petroleum refineries to exclude or not exclude their oil-bearing hazardous secondary materials under the final rule. The analysis of each affected petroleum refinery begins by estimating the likely costs and benefits associated with its potential use of the exclusion. A key assumption of the analysis is that a petroleum refinery will divert its oil-bearing hazardous secondary materials to gasification if the following two conditions apply:
(1)The benefits realized by the petroleum refinery if it uses the exclusion exceed the related costs, and
(2)the benefits realized by the gasification system receiving the petroleum refinery's oil-bearing hazardous secondary materials exceed the costs associated with accepting this material. After determining whether a petroleum refinery is likely to divert its oil-bearing hazardous secondary materials to gasification, we estimate the total impacts associated with its decision to use or not use the exclusion. If the petroleum refinery is unlikely to use the exclusion, we assume zero impacts. If the analysis suggests that the petroleum refinery will use the exclusion, we estimate impacts as the sum of three items:
(1)The savings that the petroleum refinery will experience by diverting its oil-bearing hazardous secondary materials to gasification,
(2)savings for the petroleum refinery that receives this material and uses it as a feedstock in its gasification system, and
(3)indirect third-party costs. Indirect third-party costs include increased virgin fuel and material costs for facilities that receive and manage the petroleum refinery's oil-bearing hazardous secondary materials in the baseline ( *i.e.* , prior to the promulgation of the final rule) and either burn it for energy recovery or recycle it to recover metals or other valuable materials. To complete our analysis and estimate the total impacts of the final rule, we summed the impacts associated with oil-bearing hazardous secondary materials diverted to gasification under the exclusion. In addition, we assessed the impacts of the rule under two scenarios to account for uncertainty in the operational status of gasification systems that are planned, but have not yet gone online: a low-capacity scenario reflecting existing gasification capacity and a high-capacity scenario reflecting existing and planned capacity. This rule is projected to result in a benefit to society in the form of net cost savings to the private sector, on a nationwide basis, thereby allowing for the more efficient use of limited resources elsewhere in the market. For more detail regarding the data sources, key assumptions, and any limitations associated with the analyses of the economic impacts, the reader is referred to the economic assessment document completed for this rule, which can be found in the docket to this rulemaking. As described in the methodology overview in EPA's economic assessment document, we estimated the impacts of the final rule under two gasification capacity scenarios:
(1)A low-capacity scenario that reflects the capacity of the three petroleum refinery gasification systems that are known to be operating; and
(2)a high-capacity scenario that reflects the capacity of these three systems plus two additional units that were planned as of 2003, but have not yet gone online. Results for both of these scenarios are presented as a range of the potential net social benefits of the rule, in order to help account for the uncertainty regarding the future operational status of planned units not yet in operation. 33 33 The IGCC unit located at the El Dorado, Kansas Refinery was used as part of this analysis. However, as of 2006, this unit is no longer in operation. The central conclusion of our analysis states that approximately 324,300 tons of oil-bearing hazardous secondary materials generated by 152 refineries would qualify for the exclusion each year. Of this quantity, petroleum refineries currently send approximately 205,500 tons offsite for disposal or recycling; the remaining 118,800 tons are processed onsite. Of the 324,300 tons of oil-bearing hazardous secondary materials qualifying for the exclusion, between 123,300 and 177,000 tons are likely to be excluded by petroleum refineries each year. This represents approximately 38 percent to 55 percent of the material eligible for the exclusion. We estimate that the rule will yield between $46.4 million and $48.7 million in net social benefits per year. Avoided waste management costs make up the most significant share of the benefits of the rule, followed by feedstock savings for gasification systems. Commercial waste management facilities that manage oil-bearing hazardous secondary materials in the baseline may experience annual revenue losses of $10.8 million to $15.1 million under the final rule. Based on the limited data available on the revenues of these facilities, this loss represents a small fraction of their revenues. The impact of the final rule depends significantly on the cost of incineration. The impacts reflect the average cost of incinerating bulk sludge, as reported by the Environmental Technology Council (ETC). If we use the low end of ETC's cost range, the net social benefits of the rule decline to $5.2 million to $25.5 million per year. 34 34 ETC, Incinerator and Landfill Cost Data, *http://www.etc.org/costsurvey8.cfm,* accessed September 8, 2006. IX. Statutory and Executive Order Reviews A. *Executive Order 12866:* Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” It has been determined that this rule is a “significant regulatory action” because it raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this rule to the Office of Management and Budget
(OMB)for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. In addition, EPA prepared an analysis of the potential costs and benefits associated with this action. As indicated above, the annual cost savings of the rule are estimated to be $46.4 million to $48.7 million. This analysis is contained in the document “Assessment of the Potential Costs, Benefits, and Other Impacts of the Exclusion for Gasification of Petroleum Oil-Bearing Secondary Materials—Final Rule.” A copy of the analysis is available in the docket for this regulation. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* EPA is amending an existing exclusion from the definition of solid waste that applies to hazardous secondary materials generated at a petroleum refinery when these materials are inserted back into the petroleum refining process (see current exclusion found at 40 CFR 261.4(a)(12)(i)). With today's final rule, the conditional exclusion will be revised to add “gasification” to the list of identified petroleum refinery processes into which hazardous secondary materials can be legitimately recycled. Materials excluded under 40 CFR 261.4(a)(12)(i) are not solid wastes for purposes of Subtitle C regulation, and therefore are not (by definition) hazardous wastes from the point of generation. Therefore, requirements that normally apply to the management of hazardous wastes, such as notification or the use of a hazardous waste manifest, do not apply to these materials, provided the conditions of the exclusion are satisfied. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 *et seq,* generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act, or any other statute. This analysis must be completed unless the agency is able to certify that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entities are defined as:
(1)A small business as defined by the Small Business Administration's
(SBA)regulations at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. The final rule is projected to result in benefits/cost savings for those petroleum refineries that use the exclusion. In addition, those petroleum refineries that choose not to take advantage of the subject exclusion would experience no direct impact from this final rule. Consequently, the rule is not expected to adversely affect small entities that generate oil-bearing hazardous secondary materials eligible for the exclusion. Nevertheless, we developed facility-specific impact estimates for petroleum refineries that may be classified as small entities to show how they would likely benefit from the final rule. The SBA considers a petroleum refinery to be a small business if it has “no more than 1,500 employees or more than 125,000 barrels per calendar day total Operable Atmospheric Crude Oil Distillation capacity.” Based on the available data, it is not feasible to measure the distillation capacities of each refinery affected by the rule; therefore, we relied on facility employment data to determine which petroleum refineries are small entities. Our analysis of employment data suggests that 37 of the 152 refineries affected by the rule are small entities. The benefits (cost savings) of the final rule on each small business are expected to range from $0 to $2.0 million per year. It is further estimated that the aggregate small entity impacts total $2.1 million to $2.5 million per year in cost savings, which represents 4.3 to 5.4 percent of the annual impact of the final rule. Similarly, the quantity of material eligible for the exclusion that is generated by small businesses, 16,895 tons, accounts for 5.2 percent of the total oil-bearing hazardous secondary materials tonnage eligible for the exclusion. We have therefore concluded that today's final rule will relieve regulatory burden for affected small entities. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Based on these criteria set forth by the UMRA, the final rule does not contain a significant unfunded mandate. As reported in the analytic results presented above, the rule is not likely to result in annualized costs of $100 million or more, either for the private sector or for state, local, and tribal governments. Today's rule contains no federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local, or tribal governments or the private sector, as the rule imposes no enforceable duty on any State, local or tribal governments or the private sector. Furthermore, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus today's rule is not subject to the requirements of sections 202 and 205 of UMRA. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have Federalism implications.” “Policies that have Federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have Federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it will not impose any requirements on states or any other level of government. Thus, the requirements of Section 6 of the Executive Order do not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. No Tribal governments are known to own or operate petroleum refineries that generate oil-bearing hazardous secondary materials subject to the final rule. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045, “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. On the contrary, this rule is expected to result in energy savings, as described below. EPA estimates that of the 324,300 tons of oil-bearing hazardous secondary material qualifying for the exclusion, approximately 36,735 tons are currently managed through energy recovery in the baseline. Based on the results of our analysis, we estimate that between 3,700 to 18,700 tons of the 36,735 tons currently being reported as being recovered (e.g., managed) for energy recovery will be diverted to gasification at petroleum refineries as a result of the final rule. This represents an energy loss of 19,800 to 101,300 MMBtu for facilities that manage this material for energy recovery in the baseline. This is the equivalent of 3,400 to 17,500 barrels of crude oil per year. 35 The petroleum refineries that gasify this oil-bearing hazardous secondary material under the final rule, however, would use the resulting synthesis gas as a fuel for the production of power or other petroleum products, which would (at least partially) offset the 19,800 to 101,300 MMBtu energy loss mentioned above. Moreover, gasification of the 119,600 to 158,300 tons of excluded material not burned for energy recovery in the baseline would yield additional energy savings. Assuming that all of the energy content of this material is retained in the resulting synthesis gas, the gasification of this material represents energy savings of 648,300 to 858,000 MMBtu per year. Therefore, accounting for the estimated energy loss of 19,800 to 101,300 MMBtu associated with oil-bearing hazardous secondary materials burned for energy recovery in the baseline, this rule could yield a net energy savings ranging from 628,500 to 756,700 MMBtu per year. 35 According to the U.S. Energy Information Administration
(EIA)Annual Energy Outlook 2006, Table A2, one barrel of crude oil produced has a heat content of 5.8 million Btu. I. National Technology Transfer and Advancement Act of 1995 Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. The final rule does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. Under the final rule, EPA estimates that 123,000 to 177,000 tons of oil-bearing hazardous secondary materials will be diverted to gasification processes from their baseline disposition at hazardous waste treatment, storage, and disposal facilities (TSDFs). As such, the final rule will concentrate the processing of excluded material at the limited number of petroleum refineries that could potentially use this material as a feedstock under the final rule. However, EPA does not believe that gasification of this material represents a greater risk to the public than baseline management practices. Rather than managing the excluded material as hazardous waste and transporting it to more widely dispersed TSDFs, as is currently the case (e.g., under the baseline), the final rule would help limit distribution of these materials such that they are instead managed at their source of generation (e.g., petroleum refineries). EPA also assessed the demographic characteristics of populations living within a one-mile radius of petroleum refineries with gasification systems using geo-coded data from the U.S. Census Bureau. This analysis shows that the areas surrounding gasification systems affected by the rule have disproportionately high minority and low-income populations when compared to the national average. However, based on a number of published studies, areas in close proximity to TSDFs and combustion facilities also have disproportionately high minority and low-income populations that are similar to or greater than those of petroleum refineries with gasification systems. For instance, among the individuals living within one mile of the existing and planned gasification systems included in our analysis, 15.8 percent are low-income individuals, compared to 15.7 percent and 22.3 percent near TSDFs and hazardous waste combustion facilities, respectively. Similarly, 28.1 percent of the individuals living near existing and planned gasification systems are minorities, compared to 27.2 percent living near TSDFs and 38.3 percent living near hazardous waste combustion facilities. These findings show that the percentages of low-income and minority populations near TSDFs are similar to or greater than those of populations living near petroleum refineries with gasification systems. The implication of our analyses is that low-income and minority populations will not bear a disproportionate share of any human health or environmental effects associated with shifting the processing of excluded oil-bearing hazardous secondary materials to gasification systems. Furthermore, as less oil-bearing hazardous secondary materials will be received by TSDFs and hazardous waste combustion facilities, low-income and minority populations living near these facilities would likely experience a potential reduction in risk under the final rule. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as amended 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). This rule will be effective February 1, 2008. List of Subjects 40 CFR Part 260 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Reporting and recordkeeping requirements. 40 CFR Part 261 Excluded hazardous waste, Hazardous waste, Recycling, Reporting and recordkeeping requirements. Dated: December 20, 2007. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, 40 CFR chapter I is amended as follows: PART 260—HAZARDOUS WASTE MANAGEMENT SYSTEM; GENERAL 1. The authority citation for part 260 continues to read as follows: Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 6937, 6938, 6939, and 6974. Subpart B—Definitions 2. Section 260.10 is amended by adding in alphabetical order the definition of “Gasification” to read as follows: § 260.10 Definitions. *Gasification.* For the purpose of complying with 40 CFR 261.4(a)(12)(i), gasification is a process, conducted in an enclosed device or system, designed and operated to process petroleum feedstock, including oil-bearing hazardous secondary materials through a series of highly controlled steps utilizing thermal decomposition, limited oxidation, and gas cleaning to yield a synthesis gas composed primarily of hydrogen and carbon monoxide gas. PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE 3. The authority citation for part 261 continues to read as follows: Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6938. 4. Section 261.4 is amended by revising paragraph (a)(12)(i) to read as follows: § 261.4 Exclusions.
(a)* * * (12)(i) Oil-bearing hazardous secondary materials ( *i.e.* , sludges, byproducts, or spent materials) that are generated at a petroleum refinery (SIC code 2911) and are inserted into the petroleum refining process (SIC code 2911—including, but not limited to, distillation, catalytic cracking, fractionation, gasification (as defined in 40 CFR 260.10) or thermal cracking units (i.e., cokers)) unless the material is placed on the land, or speculatively accumulated before being so recycled. Materials inserted into thermal cracking units are excluded under this paragraph, provided that the coke product also does not exhibit a characteristic of hazardous waste. Oil-bearing hazardous secondary materials may be inserted into the same petroleum refinery where they are generated, or sent directly to another petroleum refinery and still be excluded under this provision. Except as provided in paragraph (a)(12)(ii) of this section, oil-bearing hazardous secondary materials generated elsewhere in the petroleum industry (i.e., from sources other than petroleum refineries) are not excluded under this section. Residuals generated from processing or recycling materials excluded under this paragraph (a)(12)(i), where such materials as generated would have otherwise met a listing under subpart D of this part, are designated as F037 listed wastes when disposed of or intended for disposal. [FR Doc. E7-25240 Filed 12-31-07; 8:45 am] BILLING CODE 6560-50-P 73 1 Wednesday, January 2, 2008 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28348; Directorate Identifier 2007-NM-060-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 737-600, -700, -700C, -800 and -900 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of comment period. SUMMARY: The FAA is revising an earlier proposed airworthiness directive
(AD)for certain Boeing Model 737-600, -700, -700C, -800 and -900 series airplanes. The original NPRM would have required sealing the fasteners on the front and rear spars inside the main fuel tank and on the lower panel of the center fuel tank, inspecting the wire bundle support installation in the equipment cooling system bays to identify the type of clamp installed and determine whether the Teflon sleeve is installed, and doing related corrective actions if necessary. The original NPRM resulted from a design review of the fuel tank systems. This action revises the compliance time for the corrective actions specified in the original NPRM. We are proposing this supplemental NPRM to prevent arcing at certain fuel tank fasteners in the event of a lightning strike or fault current event, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane. DATES: We must receive comments on this supplemental NPRM by January 28, 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: Kathrine Rask, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6505; 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-2007-28348; Directorate Identifier 2007-NM-060-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 proposed to amend 14 CFR part 39 with a notice of proposed rulemaking
(NPRM)for an AD (the “original NPRM”) for certain Boeing Model 737-600, -700, -700C, -800 and -900 series airplanes. The original NPRM was published in the **Federal Register** on June 5, 2007 (72 FR 30996). The original NPRM proposed to require sealing the fasteners on the front and rear spars inside the main fuel tank and on the lower panel of the center fuel tank, inspecting the wire bundle support installation in the equipment cooling system bays to identify the type of clamp installed and determine whether the Teflon sleeve is installed, and doing related corrective actions if necessary. Actions Since Original NPRM Was Issued Since we issued the original NPRM, we have become aware that the compliance time for the corrective actions in the referenced service bulletin, Boeing Alert Service Bulletin 737-57A1279, dated January 24, 2007, is specified incorrectly. Paragraph 1.E. of the service bulletin specifies replacing incorrect clamps within 5 years of the release date on the service bulletin. Paragraph
(g)of this supplemental NPRM would require this action before further flight after discovery of the incorrect clamps. Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comments received. Support for the NPRM Boeing concurs with the contents of the NPRM. Request To Revise Compliance Time Air Transport Association (ATA), on behalf of its member American Airlines (AAL), requests that we revise the proposed compliance time for the sealant application and inspection from 60 months to 72 months. AAL states that its current maintenance schedule might not allow for accomplishment of the proposed actions on all of its affected airplanes within 60 months. AAL would therefore incur significant costs associated with special maintenance visits to meet the compliance time. We disagree with the request. In developing an appropriate compliance time for this action, we considered the safety implications, the manufacturer's recommendations, and normal maintenance schedules for most affected operators for the timely accomplishment of the required actions. We have determined that the compliance time, as proposed, represents the maximum interval of time allowable for the affected airplanes to continue to safely operate before the required actions are done. We have not changed the original NPRM regarding this issue. However, according to the provisions of paragraph
(h)of this supplemental NPRM, we may approve requests to adjust the compliance time if the request includes data that prove that a different compliance time would provide an acceptable level of safety. Request To Approve Alternative Part Numbers and Other Specifications ATA and AAL request that we revise the original NPRM to allow alternatives to parts and other specifications identified in Alert Service Bulletin 737-57A1279. AAL states that including an option to choose among multiple vendors or specifications should reduce any part availability issues for the operator. We disagree with the request. We understand that, when developing service information, Boeing tries to identify alternative parts and other specifications to give operators as many options as possible. We review those options when we approve the service information. AAL did not make any specific proposals for alternative specifications. We need to approve the use of all such substitutions to ensure that the unsafe condition is adequately addressed. We have not changed this supplemental NPRM regarding this issue. However, paragraph
(h)of this supplemental NPRM provides operators the opportunity to request alternative methods of compliance if data are presented that prove that the proposed options will provide an acceptable level of safety. Request To Revise Cost Estimate ATA and AAL request that we revise the proposed cost estimate to reflect additional work that might be necessary to comply with the proposed AD. First, AAL states that the original NPRM provides no costs for open/close actions, although the proposed actions might not always be accomplished at the same time as other maintenance work that involves similar open/close actions (removing A/C packs, opening wing fuel tanks, and deploying Krueger Flaps). To ensure timely compliance, AAL suggests that an additional 42.5 hours per airplane might be necessary for open/close actions. Second, AAL states that the NPRM provides no costs for clamp/sleeve replacement, although an additional 58 hours per airplane might be necessary for this action (depending on the inspection results). We disagree with the request to revise the cost estimate. 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 not changed the supplemental NPRM regarding this issue. FAA's Determination and Proposed Requirements of the Supplemental NPRM The compliance time for one of the corrective actions discussed above expands the scope of the original NPRM; therefore, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment on this supplemental NPRM. Differences Between the Supplemental NPRM and the Service Bulletin As stated previously, where the service bulletin specifies a compliance time for replacing incorrect clamps within 5 years after the date on the service bulletin, this supplemental NPRM would require this action before further flight after discovery of the incorrect clamps. Costs of Compliance There are about 1,754 airplanes of the affected design in the worldwide fleet; of these, 645 airplanes are U.S. registered. The following table provides the estimated costs for U.S. operators to comply with this supplemental NPRM, at an average hourly labor rate of $80. Estimated Costs Action Group Work hours Average hourly labor rate Cost per airplane Number of U.S.-registered airplanes Fleet cost Sealant application 1 62 $80 $4,960 586 $2,906,560 2 28 80 2,240 44 98,560 3 28 80 2,240 15 33,600 Inspection 1 3 80 240 586 140,640 2 3 80 240 44 10,560 3 2 80 160 15 2,400 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this 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 supplemental NPRM 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-2007-28348; Directorate Identifier 2007-NM-060-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by January 28, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Model 737-600, -700, -700C, -800 and -900 series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 737-57A1279, dated January 24, 2007. Unsafe Condition
(d)This AD results from a design review of the fuel tank systems. We are issuing this AD to prevent arcing at certain fuel tank fasteners in the event of a lightning strike or fault current event, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss 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. Fastener Sealant
(f)Within 60 months after the effective date of this AD: Seal the fasteners on the front and rear spars inside the main fuel tank and on the lower panel of the center fuel tank, as applicable, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-57A1279, dated January 24, 2007. Inspection
(g)Within 60 months after the effective date of this AD: Perform a general visual inspection of the wire bundle support installation in the equipment cooling system bays to identify the type of clamp installed, and determine whether the Teflon sleeve is installed. Do these actions in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-57A1279, dated January 24, 2007. Do all applicable corrective actions before further flight in accordance with the service bulletin. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Issued in Renton, Washington, on December 20, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-25477 Filed 12-31-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0037; Directorate Identifier 2007-NE-41-AD] RIN 2120-AA64 Airworthiness Directives; Rolls-Royce Deutschland Ltd. & Co. KG.
(RRD)TAY 650-15 Turbofan Engines 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)issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI states the following: Strip results from some of the engines listed in the applicability section of this directive revealed excessively corroded low pressure turbine discs stage 2 and stage 3. The corrosion is considered to be caused by the environment in which these engines are operated. Following a life assessment based on the strip findings it is concluded that inspections for corrosion attack are required. The action specified by this AD is intended to avoid a failure of a low pressure turbine disk stage 2 or stage 3 due to potential corrosion problems which could result in uncontained engine failure and damage to the airplane. We are proposing this AD to detect corrosion that could cause stage 2 or stage 3 disk of the low pressure turbine to fail and result in an uncontained failure of the engine. DATES: We must receive comments on this proposed AD by February 1, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. • *Hand Delivery:* Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Fax:*
(202)493-2251. 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 the same as the Mail address provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Jason Yang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *jason.yang@faa.gov;* telephone
(781)238-7747; fax
(781)238-7199. 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-2007-0037; Directorate Identifier 2007-NE-41-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 The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2006-0288, dated September 15, 2006, to correct an unsafe condition for the specified products. The EASA AD states: Strip results from some of the engines listed in the applicability section of this directive revealed excessively corroded low pressure turbine discs stage 2 and stage 3. The corrosion is considered to be caused by the environment in which these engines are operated. Following a life assessment based on the strip findings it is concluded that inspections for corrosion attack are required. The action specified by this AD is intended to avoid a failure of a low pressure turbine disk stage 2 or stage 3 due to potential corrosion problems which could result in uncontained engine failure and damage to the airplane. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information RRD has issued Alert Service Bulletin No. TAY-72-A1524, Revision 1, dated September 1, 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 Germany, and is approved for operation in the United States. Under this bilateral airworthiness agreement, the EASA has kept the FAA informed of the situation described above. We have examined the findings of the EASA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about two engines installed on airplanes of U.S. registry. We also estimate that it would take about 1.0 work-hours per product to inspect the disk, and that the average labor rate is $80 per work-hour. If corrosion is found, we estimate that it would take about 2.0 work-hours to replace the disk. Required parts would cost about $40,000 per product. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $80,480. Our cost estimate is exclusive of possible warranty coverage. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We 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: **Rolls-Royce Deutschland Ltd & Co KG
(RRD)(formerly Rolls-Royce plc, Derby, England):** Docket No. FAA-2007-0037; Directorate Identifier 2007-NE-41-AD. Comments Due Date
(a)We must receive comments by February 1, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to RRD TAY 650-15 turbofan engines that have a serial number listed in Table 1 of this AD, and low pressure turbine module M05300AA installed. These engines are installed on, but not limited to, Fokker F28 Mark 0100 airplanes. Table 1.—Affected TAY 650-15 Engines by Serial Number Engine serial number 17251 17255 17256 17273 17275 17280 17281 17282 17300 17301 17327 17332 17365 17393 17437 17443 17470 17520 17521 17523 17539 17542 17556 17561 17562 17563 17580 17581 17612 17618 17635 17637 17645 17661 17686 17699 17701 17702 17736 17737 17738 17739 17741 17742 17808 Reason
(d)Strip results from some of the engines listed in the applicability section of this directive revealed excessively corroded low pressure turbine discs stage 2 and stage 3. The corrosion is considered to be caused by the environment in which these engines are operated. Following a life assessment based on the strip findings it is concluded that inspections for corrosion attack are required. The action specified by this AD is intended to avoid a failure of a low pressure turbine disk stage 2 or stage 3 due to potential corrosion problems which could result in uncontained engine failure and damage to the airplane. We are proposing this AD to detect corrosion that could cause stage 2 or stage 3 disk of the low pressure turbine to fail and result in an uncontained failure of the engine. Actions and Compliance
(e)Unless already done, do the following actions.
(1)Prior to accumulating 11,700 flight cycles
(FC)since new, and thereafter at intervals not exceeding 11,700 FC of the engine, inspect the low pressure turbine discs stage 2 and stage 3 for corrosion in accordance with Rolls-Royce Deutschland Non-Modification Alert Service Bulletin TAY-72-A1524, Revision 1.
(2)For engines that already exceed 11,700 FC on the effective date of this AD, perform the inspection within 90 days after the effective date of this AD.
(3)When, during any of the inspections as required by paragraph (e)(1) of this directive, corrosion is found, replace the affected parts using the rejection criteria described in the Rolls-Royce TAY 650 Engine Manual—E-TAY-3RR. Other FAA AD Provisions
(f)*Alternative Methods of Compliance (AMOCs):* The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Related Information
(g)Refer to EASA Airworthiness Directive 2006-0288, dated September 15, 2006, and RRD Alert Service Bulletin TAY-72-A1524, Revision 1, dated September 1, 2006, for related information.
(h)Contact Jason Yang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *jason.yang@faa.gov;* telephone
(781)238-7747; fax
(781)238-7199, for more information about this AD. Issued in Burlington, Massachusetts, on December 26, 2007. Peter A. White, Assistant Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-25457 Filed 12-31-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-24145; Directorate Identifier 2006-NE-06-AD] RIN 2120-AA64 Airworthiness Directives; General Electric Company CF6-45 and CF6-50 Series Turbofan Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of comment period. SUMMARY: This supplemental NPRM revises an earlier proposed airworthiness directive (AD), applicable to certain General Electric Company
(GE)CF6-45 and CF6-50 series turbofan engines. That proposed AD would have required inspecting and reworking certain forward and aft centerbodies of the long fixed core exhaust nozzle (LFCEN) assembly. That proposed AD resulted from reports of separation of the forward and aft centerbodies of the LFCEN assembly due to high-imbalance engine conditions. This supplemental NPRM revises the proposed AD to add one engine model, and by replacing the LFCEN instead of repairing the centerbodies. This proposed AD results from the engine manufacturer issuing new service information. We are proposing this AD to prevent the forward and aft centerbody of the LFCEN assembly from separating, leading to additional damage to the airplane. DATES: We must receive any comments on this proposed AD by February 19, 2008. ADDRESSES: Use one of the following addresses to comment on this proposed AD. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. • *Hand Delivery:* Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Fax:*
(202)493-2251. You can get the service information identified in this proposed AD from General Electric Company via GE-Aviation, Attn: Distributions, 111 Merchant St., Room 230, Cincinnati, Ohio 45246, telephone
(513)552-3272; fax
(513)552-3329. FOR FURTHER INFORMATION CONTACT: Robert Green, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *robert.green@faa.gov* ; telephone
(781)238-7754; fax
(781)238-7199. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send us any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2006-24145; Directorate Identifier 2006-NE-06-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the Web site, anyone can find and read the comments in any of our dockets, including, if provided, the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78). 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 the same as the Mail address provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. Discussion On March 27, 2006, we issued a proposal to amend part 39 of the Code of Federal Regulations (14 CFR part 39) to add an AD, applicable to GE CF6-45 and -50 series turbofan engines. The proposed AD published as an NPRM in the **Federal Register** on March 31, 2006 (71 FR 16246). That NPRM proposed to require reworking the forward and aft centerbodies to add doublers, larger nuts and bolts, and higher strength corrosion resistant nut plates. That rework would be required the next time the forward centerbody and aft centerbody are removed from the engine after the effective date of this proposed AD. Since we issued that NPRM, we determined that the referenced GE rework instructions in GE service bulletin
(SB)No. CF6-50 S/B 78-0242 were incompatible with the existing repair in the Engine Manual. GE subsequently superseded SB No. CF6-50 S/B 78-0242 with SB No. GE CF6-50 S/B 78-0244, which corrected the error. We also found that we didn't specify the CF6-50A model engine in the Applicability of the proposed AD. We added the CF6-50A engine model to the Applicability of the proposed AD. Because we expanded the population of affected engines by adding the CF6-50A model, this supplemental NPRM reopens the comment period to include the CF6-50A engine model and references the new rework instructions. This condition, if not corrected, could result in the forward and aft centerbody of the LFCEN assembly separating, leading to additional damage to the airplane. Comments We provided the public the opportunity to participate in the development of this proposed AD. We have considered the comments received. Request for Continued Operational Serviceability Limits One commenter asks us to provide continued-operation serviceability limits in terms of flight cycles or flight hours and a maximum allowable crack length to allow operators to schedule removing and installing the LFCEN if a crack is found during an in-service, line station inspection. The commenter states that specifying continued-operation serviceability limits will preclude unscheduled maintenance and costly downtime. We don't agree that we should provide continued-operation serviceability limits in this proposed AD. An operator's approved maintenance plan should define the continued-operation serviceability criteria. We didn't change the proposed NPRM. Request To Remove Requirement To Modify LFCEN to SB CF6-50 S/B 78-0242 Atlas Air asks us to remove the requirement to use GE SB No. CF6-50 S/B 78-0242 to modify the LFCEN. Atlas Air believes that they can maintain an equivalent level of safety by modifying the forward and aft centerbody as specified in GE SB No. CF6-50 S/B 78-0216, Revision 1, dated October 23, 1987, and adhering to the torque requirements for the aft centerbody bolts as specified in GE SB No. CF6-50 S/B 78-0241, dated January 7, 2003. Atlas Air notes that after the OEM introduced SB No. CF6-50 S/B 78-0216 Revision 1, which instituted the Sixteen-bolt Forward and Aft Centerbody Configuration, 22 events were recorded. But, the OEM has not provided data as to how many of the 22 events occurred on centerbodies modified using only SB No. CF6-50 S/B 78-0216, Revision 1. Atlas Air also notes that no events of separations of the forward and aft centerbody have occurred since the OEM introduced the increased torque requirements for the forward-to-aft centerbody joint bolts. We don't agree. Analysis and component tests following release of GE SB No. CF6-50 S/B 78-0216 and SB No. CF6-50 S/B 78-0241 identified several other design shortcomings at fan blade-out imbalance loads. Improvements released through GE SB No. CF6-50 S/B 78-0242 (and subsequently GE SB No. CF6-50 S/B 78-0244) addressed those design concerns. GE SB No. CF6-50 S/B 78-0216 and SB No. CF6-50 S/B 78-0241 don't address fully the identified LFCEN forward-to-aft centerbody separation issues. Incorporating the modifications defined in GE SB No. CF6-50 S/B 78-0244 would preclude the need to require repetitive on-wing inspections. We didn't change the proposed NPRM. Request To Change the Compliance Time Atlas Air proposes that we change the compliance time for modifying the forward and aft centerbody as specified in GE SB No. CF6-50 S/B 78-0242 from “the next time the forward and aft centerbody is removed from the engine” to “each time the forward or aft centerbody is removed and routed for repair.” Atlas Air states that the requirement to modify the forward and aft centerbody each time they remove an engine will increase the number of spare centerbodies needed. Atlas Air calculates the need for an additional five forward and aft centerbodies at an additional cost of $696,960. We don't agree. Incorporating the GE SB No. CF6-50 S/B 78-0244 modifications when the centerbodies are repaired for unserviceable conditions would extend the compliance period unreasonably. The intent of the original compliance recommendation was to align and execute the modifications with engine refurbishments. The intent of the hard-time compliance period recommendation in this superseding NPRM is to complete the modifications within the same time period as the original engine removal recommendations. We didn't change the proposed NPRM. Request To Change the Costs of Compliance Atlas Air also believes that we underestimated the cost impact of the proposed rule. Atlas Air uses third party labor and does not agree that the $80 per hour rate is the true industry average. Atlas Air also observes that we do include the cost of spare centerbodies that would be required to support the compliance requirements of this rule. Atlas Air used a figure of $100 per hour in their subsequent cost calculation and included required spare parts in their projected compliance costs. We don't agree. We use the average labor rate established by the Office of Aviation Policy, Plans, and Management Analysis
(APO)for estimating the projected cost impact of ADs. We don't project additional costs associated with spare parts, because ADs address an unsafe condition in a product (in this case an engine) and the unsafe condition doesn't exist until the spare parts are on the engine and the engine is in service. However, GE made corrections to SB No. CF6-50 S/B 78-0244, dated July 30, 2007, that included a revision of the projected labor work-hours to complete the modification. GE SB No. CF6-50 S/B 78-0242, dated September 26, 2005, cited 22 work-hours to complete the modification. That was for one centerbody half. The total labor work-hours to modify both centerbodies are 44 work-hours, which is cited in GE SB No. CF6-50 S/B 78-0244, dated July 30, 2007. We changed the Costs of Compliance section in the AD to reflect 44 work-hours per product. Request To Change the Compliance Times One commenter, FedEx, suggests a hard-time limit of 30 months after the effective date of the proposed AD to modify all LFCEN assemblies in accordance with GE SB No. CF6-50 S/B 78-0242 (subsequently superseded by GE SB No. CF6-50 S/B 78-0244) instead of when the centerbodies are removed when an engine is taken off wing. FedEx believes that the requirement to perform the modification at the next engine change will create an undue burden on line maintenance operations and prolong completing the modifications. Spare engines ship without the LFCEN assembly which is typically transferred to the new engine from the old engine at engine replacement. FedEx states that, under the requirements in the current NPRM, operators will have to pre-position spare LFCEN assemblies with spare engines to remote outstations. This requirement and additional logistics will unduly increase operator spare cost and cost of out of service aircraft. FedEx contends that a hard-time compliance limit will relieve operations from the increased logistics and spare costs and accelerate completion of the modification. With the current requirement to complete the modification when the LFCEN is removed from the engine, accomplishment could take more than 4 years. A fixed time of 30 months, versus at next engine removal, would allow operators to control the modifications at heavy maintenance checks and expedite completion of the modifications directed by this proposed AD. We partially agree. We agree that a hard-time completion recommendation works better than an engine removal basis for the centerbody rework. We don't agree that 30 months is the appropriated compliance period. We revised the proposed NPRM accordingly, citing a 42 month compliance period. The 42 month limit is based on the CF6-50 average time-on-wing performance and annual utilization. Request for a Grace Period Two commenters, the Air Transport Association and Northwest Airlines, request a grace period of 12 months after the effective date of the proposed AD to acquire and modify spare forward and aft centerbodies. The commenters state that the available number of modified spare centerbody assemblies is extremely low and the grace period for provisioning would avoid extended aircraft-on-ground situations. We don't agree that a grace period is necessary, given our response to the previous comment. We didn't change the proposed NPRM. Differences Between the Service Bulletin and the Component Maintenance Manual Repair Procedure Two commenters identified issues with incorporating GE SB No. CF6-50 S/B 78-0242, dated September 26, 2005. One commenter, Air Nippon Airways, requests that the GE SB recommend the CMM 78-11-02 repair modification for the forward centerbodies and that they be reflected in the FAA AD. Air Nippon Airways notes that the fastener locations on the forward centerbody aft doubler and aft doubler splices defined by GE SB No. CF6-50 S/B 78-0242 and GE Repair Document
(RD)250-206-S1 are different than those defined by the corresponding Component Maintenance Manual
(CMM)repair. The aft doubler and aft doubler splices could not be installed on forward centerbodies that had been repaired in accordance with the CMM 78-11-02 Repair 001. In addition, the band doubler specified by the GE SB was already required with the CMM repair. We agree. ANA is correct in their statement that the GE SB No. CF6-50 S/B 78-0242, dated September 26, 2005, and CMM instructions were incompatible. GE subsequently superseded SB No. CF6-50 S/B 78-0242, dated September 26, 2005, with GE SB No. CF6-50 S/B 78-0244, dated July 30, 2007, which corrects the error by referencing the pre-existing repair for modifying the forward centerbody. We changed the proposed NPRM references to reflect the corrected service bulletin instructions. One commenter, Airbus, reports that since release of the NPRM, docket No. FAA-2007-24145 (Directorate identifier 2006-NE-06-AD), operators report having difficulties implementing GE SB No. CF6-50 S/B 78-0242, dated September 26, 2005, due to a parallel spot-weld repair in Engine Manual Repair 78-11-02-300-001. That repair incorporates an aft joint doubler that interferes with the repair required by GE SB No. CF6-50 S/B 78-0242, dated September 26, 2005. Airbus notes that GE was revising SB No. CF6-50 S/B 78-0242, dated September 26, 2005, to define the proper doublers, update the repair, and contact the service bulletin. Airbus asks if we were informed of this situation and whether it is planned to postpone or review the current proposed rulemaking. We were aware of the identified issues with the original service bulletin recommendations and that GE was revising SB No. CF6-50 S/B 78-0242, dated September 26, 2005. This proposed AD references the revised modifications released by GE SB No. CF6-50 S/B 78-0244, dated July 30, 2007. This proposed AD addresses those accomplishment instruction changes, and address the compliance recommendations proposed by FedEx, the ATA, and Northwest Airlines. We didn't change the proposed NPRM. Relevant Service Information We have reviewed and approved the technical contents of GE SB No. CF6-50 S/B 78-0244, dated July 30, 2007, that identifies disassembly, inspection, rework, and reassembly procedures for the forward and aft centerbodies. Differences Between the Proposed AD and the Service Information GE SB No. CF6-50 S/B 78-0244, dated July 30, 2007 requires reworking the forward and aft centerbodies when the centerbodies are removed from the engine. This proposed NPRM requires replacing the centerbodies with centerbodies that were modified using the Accomplishment Instructions, Section 3, of GE SB No. CF6-50 S/B 78-0244, dated July 30, 2007, within 42 months of the effective date of the proposed AD. FAA's Determination and Requirements of the Proposed AD We evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. We are proposing this AD, which will require replacing certain forward and aft centerbodies with new or modified forward and aft centerbodies. These replacements are required within 42 months after the effective date of this proposed AD. The proposed AD would require you to use the service information described previously to modify the forward and aft centerbodies before assembling them to the engine. Costs of Compliance We estimate that this proposed AD would affect 379 GE CF6-45 and CF6-50 series turbofan engines installed on airplanes of U.S. registry. We also estimate that it would take about 44 work hours per engine to perform the proposed actions, and that the average labor rate is $80 per work hour. Required parts would cost about $11,000 per engine. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $2,802,360. 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. Would 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. 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 Under the authority delegated to me by the Administrator, the Federal Aviation Administration 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 airworthiness directive: **General Electric Company:** Docket No. FAA-2006-24145; Directorate Identifier 2006-NE-06-AD. Comments Due Date
(a)The Federal Aviation Administration
(FAA)must receive comments on this airworthiness directive
(AD)action by February 19, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to General Electric Company
(GE)CF6-45A, CF6-45A2, CF6-50A, CF6-50C, CF6-50CA, CF6-50C1, CF6-50C2, CF6-50C2B, CF6-50C2D, CF6-50E, CF6-50E1, CF6-50E2, and CF6-50E2B series turbofan engines with long fixed core exhaust nozzle (LFCEN) assembly forward centerbody, part number (P/N) 1313M55G01 or G02, P/N 9076M28G09 or G10, and aft centerbody P/N 1313M56G01 or 9076M46G05, installed. These engines are installed on, but not limited to, Airbus A300 series, Boeing 747 series, McDonnell Douglas DC-10 series, and DC-10-30F (KC-10A, KDC-10) airplanes. Unsafe Condition
(d)This AD results from reports of separation of LFCEN assembly forward and aft centerbodies, due to high imbalance engine conditions. We are issuing this AD to prevent the forward and aft centerbody of the LFCEN assembly from separating, leading to additional damage to the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within 42 months after the effective date of this AD, unless the actions have already been done.
(f)Replace the forward centerbody, P/N 1313M55G01 or G02, P/N 9076M28G09 or G10, and aft centerbody, P/N 1313M56G01 or 9076M46G05 with a forward and aft centerbody that have been modified using with the Accomplishment Instructions, Section 3, of GE service bulletin No. CF6-50 S/B 78-0244, dated July 30, 2007. Alternative Methods of Compliance
(g)The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Related Information
(h)Contact Robert Green, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *robert.green@faa.gov* ; telephone
(781)238-7754; fax
(781)238-7199, for more information about this AD. Issued in Burlington, Massachusetts, on December 17, 2007. Peter A. White, Assistant Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-25458 Filed 12-31-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0372; Directorate Identifier 2007-NM-164-AD] RIN 2120-AA64 Airworthiness Directives; Construcciones Aeronauticas, S.A.,
(CASA)Model C-212 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 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: On 23 November 2006, Emergency Airworthiness Directive
(EAD)Nr. (number) 2006-0351-E was published requiring an inspection to be performed on C-212 aeroplanes having been used for Maritime Patrol or other similar low altitude operations, due to the fact that, after initial examination of the evidences of a recent C-212 Maritime Patrol aircraft accident, cracks had been found in the centre wing lower skin at STA Y=1030. At the time of the accident, the aircraft had accumulated 17,000 flight hours and 7,300 flight cycles. The cracks were suspected to be caused by fatigue. A more detailed examination in the laboratory, led to think that the initiation of the fatigue cracks was produced by fretting, and EAD 2006-0365-E, superseding EAD 2006-0351-E, was published on 4 December 2006 to address the new situation. Further examination in the laboratory has allowed to establish that crack initiation was due to fatigue and the fretting was posterior. The above mentioned cracks, if not timely detected, could lead to reduced structural integrity of the aircraft. 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 February 1, 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, FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone
(425)227-1112; 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-2007-0372; Directorate Identifier 2007-NM-164-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 On February 16, 2007, we issued AD 2007-05-01, Amendment 39-14962 (72 FR 8610, February 27, 2007). That AD required actions intended to address an unsafe condition on the products listed above. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Emergency Airworthiness Directive
(EAD)2007-0108-E, dated April 18, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: On 23 November 2006, Emergency Airworthiness Directive Nr. (number) 2006-0351-E was published, requiring an inspection to be performed on C-212 aeroplanes having been used for Maritime Patrol or other similar low altitude operations, due to the fact that, after initial examination of the evidences of a recent C-212 Maritime Patrol aircraft accident, cracks had been found in the centre wing lower skin at STA Y=1030. At the time of the accident, the aircraft had accumulated 17,000 flight hours and 7,300 flight cycles. The cracks were suspected to be caused by fatigue. A more detailed examination in the laboratory, led to think that the initiation of the fatigue cracks was produced by fretting, and EAD 2006-0365-E, superseding EAD 2006-0351-E, was published on 4 December 2006 to address the new situation. Further examination in the laboratory has allowed to establish that crack initiation was due to fatigue and the fretting was posterior. Additionally, given that some operators were reporting difficulties in performing the required inspections, a new procedure has been defined using High Frequency Eddy Currents. Finally, an inspection interval has been established to make the required inspections repetitive in the interim until a definitive solution is available. The subject element is identified in Ref. 1 (CASA C-212 Supplemental Inspection Document
(SID)C-212-PV-02-SID) as a Principal Structural Element
(PSE)with No. 57.212.06 and requested to be inspected at a threshold of 20,000 landings (subject to some operational constraints defined in Ref. 1) in accordance with the inspection method and sequence described in Ref. 2 (CASA C-212 Supplemental Inspection Procedures
(SIP)C-212-PV-02-SIP), Section 57-10-03. Ref. 1 document was made mandatory by DGAC-Spain Airworthiness directive Nr. 02/88 (current status of that AD is revision 3, dated 4 February 2004). Inspection threshold as per AD 02/88 Rev. 3 remains valid and relevant inspections have to be performed in addition to the requirements of this Emergency Airworthiness Directive (EAD). The above mentioned cracks, if not timely detected, could lead to reduced structural integrity of the aircraft. This EAD [which supersedes EASA EAD 2006-0365-E], is intended to ensure that no other C-212 aircraft could be affected by this problem, by mandating a one time inspection of the subject area and a repetitive inspection thereafter, until the moment a definitive design solution will be available, in accordance with the requirements under the paragraph “Compliance” of this EAD. An additional inspection procedure, by using High Frequency Eddy Currents, has been introduced, which should be able to detect cracks with higher reliability. The corrective action includes repetitive inspections for cracks, and repair if necessary. We clarified the compliance times specified in paragraphs (f)(1)(i) and (f)(2)(i) of the existing AD to specify those times in terms of a threshold (e.g., 5,600 total flight hours, 2,400 total landings) and a grace period (e.g., within 6 months), whichever is latest. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information EADS-CASA has issued All Operator Letter 212-018, Revision 2, dated March 20, 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 33 products of U.S. registry. We also estimate that it would take about 8 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 $21,120, or $640 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 39-14962 (72 FR 8610, February 27, 2007) and adding the following new AD: **Construcciones Aeronauticas, S.A. (CASA):** Docket No. FAA-2007-0372; Directorate Identifier 2007-NM-164-AD. Comments Due Date
(a)We must receive comments by February 1, 2008. Affected ADs
(b)The proposed AD supersedes AD 2007-05-01, Amendment 39-14962. Applicability
(c)This AD applies to Construcciones Aeronauticas, S.A.,
(CASA)Model C-212 airplanes; all series, all serial numbers; certificated in any category. Subject
(d)Air Transport Association
(ATA)of America Code 57: Wings. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: On 23 November 2006, Emergency Airworthiness Directive Nr. (number) 2006-0351-E was published, requiring an inspection to be performed on C-212 aeroplanes having been used for Maritime Patrol or other similar low altitude operations, due to the fact that, after initial examination of the evidences of a recent C-212 Maritime Patrol aircraft accident, cracks had been found in the centre wing lower skin at STA Y=1030. At the time of the accident, the aircraft had accumulated 17,000 flight hours and 7,300 flight cycles. The cracks were suspected to be caused by fatigue. A more detailed examination in the laboratory, led to think that the initiation of the fatigue cracks was produced by fretting, and EAD 2006-0365-E, superseding EAD 2006-0351-E, was published on 4 December 2006 to address the new situation. Further examination in the laboratory has allowed to establish that crack initiation was due to fatigue and the fretting was posterior. Additionally, given that some operators were reporting difficulties in performing the required inspections, a new procedure has been defined using High Frequency Eddy Currents. Finally, an inspection interval has been established to make the required inspections repetitive in the interim until a definitive solution is available. The subject element is identified in Ref. 1 (CASA C-212 Supplemental Inspection Document
(SID)C-212-PV-02-SID) as a Principal Structural Element
(PSE)with No. 57.212.06 and requested to be inspected at a threshold of 20,000 landings (subject to some operational constraints defined in Ref. 1) in accordance with the inspection method and sequence described in Ref. 2 (CASA C-212 Supplemental Inspection Procedures
(SIP)C-212-PV-02-SIP), Section 57-10-03. Ref. 1 document was made mandatory by DGAC-Spain Airworthiness directive Nr. 02/88 (current status of that AD is revision 3, dated 4 February 2004). Inspection threshold as per AD 02/88 Rev. 3 remains valid and relevant inspections have to be performed in addition to the requirements of this Emergency Airworthiness Directive (EAD). The above mentioned cracks, if not timely detected, could lead to reduced structural integrity of the aircraft. This EAD [which supersedes EASA EAD 2006-0365-E], is intended to ensure that no other C-212 aircraft could be affected by this problem, by mandating a one time inspection of the subject area and a repetitive inspection thereafter, until the moment a definitive design solution will be available, in accordance with the requirements under the paragraph “Compliance” of this EAD. An additional inspection procedure, by using High Frequency Eddy Currents, has been introduced, which should be able to detect cracks with higher reliability. The corrective action includes repetitive inspections for cracks, and repair if necessary. Restatement of Requirements of AD 2007-05-01:
(f)Unless already done, do the following actions.
(1)For airplanes used for maritime operations and all other airplanes on which the operator cannot positively determine that the airplanes have not been flown more than ten percent of flights at altitudes below 3,000 feet as of March 14, 2007 (the effective date of AD 2007-05-01): Perform a Non-Destructive Inspection
(NDI)and a complementary NDI for cracks at the applicable time specified in paragraph (f)(1)(i), (f)(1)(ii), or (f)(1)(iii) of this AD. Do the inspections as defined in EADS-CASA All Operator Letter 212-018, Revision 1, dated December 1, 2006; or Revision 2, dated March 20, 2007. As of the effective date of this AD, only Revision 2 may be used. - Note 1: For the purposes of this AD, the term “maritime operations” is defined as airplanes which are used for monitoring certain areas of water.
(i)For airplanes having accumulated 5,600 flight hours or less, and 2,400 landings or less as of March 14, 2007: Perform the inspections before the accumulation of 5,600 total flight hours, or before the accumulation of 2,400 total landings, or within 6 months after March 14, 2007, whichever occurs latest.
(ii)For airplanes having accumulated more than 5,600 flight hours but less than or equal to 8,000 flight hours, or more than 2,400 landings but less than or equal to 3,600 landings, as of March 14, 2007: Perform the inspections before the accumulation of 200 flight hours or 100 landings after March 14, 2007, whichever occurs first.
(iii)For airplanes having accumulated more than 8,000 flight hours or more than 3,600 landings as of March 14, 2007: Perform the inspections within 14 days after March 14, 2007.
(2)For airplanes other than those identified in paragraph (f)(1) of this AD: Perform the NDIs at the applicable time specified in paragraph (f)(2)(i), (f)(2)(ii), or (f)(2)(iii) of this AD. Do the inspections as defined in EADS-CASA All Operator Letter 212-018, Revision 1, dated December 1, 2006; or Revision 2, dated March 20, 2007. As of the effective date of this AD, only Revision 2 may be used.
(i)For airplanes having accumulated 10,000 total flight hours or less, and 10,000 total landings or less as of March 14, 2007: Perform the inspections before the accumulation of 10,000 total flight hours, or before the accumulation of 10,000 total landings, or within 6 months after March 14, 2007, whichever occurs latest.
(ii)For airplanes having accumulated more than 10,000 flight hours but less than or equal to 15,000 flight hours, or more than 10,000 landings but less than or equal to 15,000 landings, as of March 14, 2007: Perform the inspections before the accumulation of 200 flight hours or 100 landings after March 14, 2007, whichever occurs first.
(iii)For airplanes having accumulated more than 15,000 flight hours or more than 15,000 landings as of March 14, 2007: Perform the inspections within 14 days after March 14, 2007. New Requirements of This AD: Actions and Compliance
(g)Unless already done, do the following actions.
(1)For airplanes identified in paragraph (f)(1) of this AD that have accumulated 5,600 flight hours or less, and 2,400 landings or less as of the effective date of this AD: Perform the inspections at the times specified in paragraphs (g)(1)(i) and (g)(1)(ii) of this AD. Do the inspections as defined in EADS-CASA All Operator Letter 212-018, Revision 2, dated March 20, 2007.
(i)At the later of the times specified in paragraphs (g)(1)(i)(A) and (g)(1)(i)(B) of this AD: Perform a high frequency eddy current
(HFEC)NDI for cracks.
(A)Within 200 flight hours or 100 landings after the effective date of this AD, whichever occurs first.
(B)Before the accumulation of 5,600 total flight hours or 2,400 total landings, whichever occurs first.
(ii)Repeat the inspections required by paragraphs (f)(1) and (g)(1)(i) of this AD before the accumulation of 8,000 total flight hours or 3,600 total landings, whichever occurs first, and thereafter at intervals not to exceed 600 flight hours or 250 landings, whichever occurs first.
(2)For airplanes identified in paragraph (f)(1) of this AD that have accumulated more than 5,600 flight hours but less than or equal to 8,000 flight hours, or more than 2,400 landings but less than or equal to 3,600 landings, as of the effective date of this AD: Perform the inspections at the times specified in paragraphs (g)(2)(i) and (g)(2)(ii) of this AD. Do the inspections as defined in EADS-CASA All Operator Letter 212-018, Revision 2, dated March 20, 2007.
(i)Within 200 flight hours or 100 landings after the effective date of this AD, whichever occurs first: Perform a HFEC NDI for cracks.
(ii)Within 600 flight hours or 250 landings, whichever occurs first, after doing the inspection required by paragraph (g)(2)(i) of this AD: Perform the inspections required by paragraphs (f)(1) and (g)(2)(i) of this AD and repeat the inspections thereafter at intervals not to exceed 600 flight hours or 250 landings, whichever occurs first.
(3)For airplanes identified in paragraph (f)(1) of this AD that are not subject to paragraph (g)(1) or (g)(2) of this AD: Perform the inspections at the times specified in paragraphs (g)(3)(i) and (g)(3)(ii) of this AD. Do the inspections as defined in EADS-CASA All Operator Letter 212-018, Revision 2, dated March 20, 2007.
(i)Within 14 days after the effective date of this AD: Perform a HFEC NDI for cracks.
(ii)Within 600 flight hours or 250 landings, whichever occurs first, after doing the inspection required by paragraph (g)(3)(i) of this AD: Perform the inspections required by paragraphs (f)(1) and (g)(3)(i) of this AD and repeat the inspections thereafter at intervals not to exceed 600 flight hours or 250 landings, whichever occurs first.
(4)For airplanes identified in paragraph (f)(2) of this AD that have accumulated 10,000 flight hours or less, and 10,000 landings or less, as of the effective date of this AD: Perform the inspections at the times specified in paragraphs (g)(4)(i) and (g)(4)(ii) of this AD. Do the inspections as defined in EADS-CASA All Operator Letter 212-018, Revision 2, dated March 20, 2007.
(i)Within 200 flight hours or 100 landings after the effective date of this AD, whichever occurs first: Perform a HFEC NDI for cracks.
(ii)Repeat the inspections required by paragraphs (f)(2) and (g)(4)(i) of this AD before the accumulation of 15,000 total flight hours or 15,000 total landings, whichever occurs first, and thereafter at intervals not to exceed 4,500 flight hours or 4,500 landings, whichever occurs first.
(5)For airplanes identified in paragraph (f)(2) of this AD that have accumulated more than 10,000 flight hours but less than or equal to 15,000 flight hours, or more than 10,000 landings but less than or equal to 15,000 landings, as of the effective date of this AD: Perform the inspections at the time specified in paragraphs (g)(5)(i) and (g)(5)(ii) of this AD. Do the inspections as defined in EADS-CASA All Operator Letter 212-018, Revision 2, dated March 20, 2007.
(i)Within 200 flight hours or 100 landings after the effective date of this AD, whichever occurs first: Perform a HFEC NDI for cracks.
(ii)Within 4,500 flight hours or 4,500 landings, whichever occurs first, after doing the inspection required by paragraph (g)(5)(i) of this AD: Perform the inspections required by paragraphs (f)(2) and (g)(5)(i) of this AD. Repeat the inspections thereafter at intervals not to exceed 4,500 flight hours or 4,500 landings, whichever occurs first.
(6)For airplanes identified in paragraph (f)(2) of this AD that are not subject to paragraph (g)(4) or (g)(5) of this AD: Perform the inspections at the time specified in paragraphs (g)(6)(i) and (g)(6)(ii) of this AD. Do the inspections as defined in EADS-CASA All Operator Letter 212-018, Revision 2, dated March 20, 2007.
(i)Within 14 days after the effective date of this AD: Perform a HFEC NDI for cracks.
(ii)Within 4,500 flight hours or 4,500 landings, whichever occurs first, after doing the inspection required by paragraph (g)(6)(i) of this AD: Perform the inspections required by paragraphs (f)(2) and (g)(6)(i) of this AD, and repeat the inspection thereafter at intervals not to exceed 4,500 flight hours or 4,500 landings, whichever occurs first.
(7)If any crack or loose rivet is detected during any inspection required by this AD, before further flight, repair using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency
(EASA)(or its delegated agent). Within 30 days after cracks are detected, or within 30 days after the effective date of this AD, whichever occurs later, send a detailed report of the first inspection findings (both positive and negative) of the inspections required by paragraph
(f)of this AD to EADS-CASA for evaluation at the following address: EADS-CASA, Military Transport Aircraft Division, Integrated Customer Services, Technical Services, Avenida de Aragon 404, 28022-Madrid, Spain; telephone 34-91-624-6306; fax 34-91-585-5505; E-mail: MTA, *TechnicalService@casa.eads.net.* In any case, a confirmation of the accomplishment of this inspection is required to be sent to EADS-CASA. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows:
(1)*Compliance Time:* For certain airplanes, the compliance time required by the MCAI or service information for performing the HFEC inspections is before further flight; however, to avoid inadvertently grounding airplanes, this AD requires performing those inspections within 14 days after the effective date of this AD.
(2)*Repair:* Although the MCAI or service information does not include a repair procedure for cracking, this AD requires the repair of any cracking per the FAA or EASA (or its delegated agent). Other FAA AD Provisions
(h)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, 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
(i)Refer to MCAI EASA Emergency Airworthiness Directive 2007-0108-E, dated April 18, 2007, and EADS-CASA All Operator Letter 212-018, Revision 2, dated March 20, 2007, for related information. Issued in Renton, Washington, on December 19, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-25481 Filed 12-31-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0389; Directorate Identifier 2007-NM-222-AD] RIN 2120-AA64 Airworthiness Directives; Various Transport Category Airplanes Equipped With Auxiliary Fuel Tanks Installed in Accordance With Certain Supplemental Type Certificates 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 various transport category airplanes. This proposed AD would require deactivation of Southeast Aero-Tek, Inc., auxiliary fuel tanks. This proposed AD results from fuel system reviews conducted by the manufacturer, which identified potential unsafe conditions for which the manufacturer has not provided corrective actions. We are proposing this AD to prevent 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. DATES: We must receive comments on this proposed AD by February 19, 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 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: Robert Bosak, Aerospace Engineer, Propulsion and Services Branch, ACE-118A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, Suite 460, Atlanta, Georgia 30349; telephone
(770)703-6094; fax
(770)703-6097. 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-2007-0389; Directorate Identifier 2007-NM-222-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 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)design approval) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to design approval 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 another 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 proposed 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. Supplemental Type Certificates
(STCs)for Southeast Aero-Tek, Inc., Auxiliary Fuel Tanks The auxiliary fuel tank STCs on affected airplanes are a double-walled cylindrical type design. The double-walled cylindrical tanks use pneumatic air pressure to empty into the airplane's center wing tank. All auxiliary tanks use some type of electrical fuel quantity indication system (FQIS), flight deck control and annunciation panels, float level switches, valves and venting systems, electrical wiring connections in the dry bay area, and electrical bonding methods. FAA's Findings During the SFAR 88 safety assessment, it was determined that the Southeast Aero-Tek, Inc., FQIS and float level switch did not meet intrinsically safe electrical energy levels as described in the guidelines of Advisory Circular
(AC)25.981-1B, “Fuel Tank Ignition Source Prevention Guidelines.” Southeast Aero-Tek, Inc., identified potential ignition sources resulting from a combination of single and latent failures for the Southeast Aero-Tek, Inc., fuel tank subsystems. To prevent high electrical energy levels from the FQIS and float level switch from entering the auxiliary fuel tank, we have determined that the appropriate solution for continued use is a combination of actions. First, installing a transient suppression device
(TSD)on FQIS and float level switches would be needed. In order to maximize wire separation, the TSD must be installed as close as possible to the points where the FQIS and float level switch wires exit the TSD and enter the auxiliary tank. Other actions might include replacing high-energy FQISs, and float level switches that are impractical for TSD application with intrinsically safe FQISs providing wire separation, conducting a one-time inspection and/or replacing aging float level switch conduit assemblies, periodically inspecting the external dry bay system components and wires, and testing the integrity of bonding resistances. Southeast Aero-Tek, Inc., has not fully provided the service information required under SFAR 88 that would correct these conditions; therefore, we must mandate the deactivation of all Southeast Aero-Tek, Inc., auxiliary fuel tanks. If operators do not wish to deactivate their auxiliary fuel tanks, we will consider requests for alternative methods of compliance (AMOCs). The most likely requests would be to allow continued use of the tanks by showing compliance with SFAR 88. This would involve obtaining STCs to modify the auxiliary fuel tank systems and developing maintenance procedures to address the safety issues identified above. Once an operator has deactivated a tank as proposed by this NPRM, the operator might wish to remove the tank. This would require a separate design approval, if an approved tank removal procedure does not exist. 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 products of this same type design. For this reason, we are proposing this AD, which would require deactivation to prevent usage of auxiliary fuel tanks. Explanation of Compliance Time In most ADs, we adopt a compliance time allowing a specified amount of time after the AD's effective date. In this case, however, the FAA has already issued regulations that require operators to revise their maintenance/inspection programs to address fuel tank safety issues. The compliance date for these regulations is December 16, 2008. To provide for coordinated implementation of these regulations and this proposed AD, we are using this same compliance date in this proposed AD. Costs of Compliance The following table provides the estimated costs for the 37 U.S.-registered airplanes to comply with this proposed AD. Based on these figures, the estimated costs for U.S. operators could be as high as $239,760 to prepare and report the deactivation procedures, and $133,200 to deactivate tanks. Estimated Costs Action Work hours Average labor rate per hour Parts Individual cost Report 1 $80 None $80, per STC. Preparation of tank deactivation procedure 80 80 None 6,400, per STC. Physical tank deactivation 30 80 1,200 3,600, 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): **Various Transport Category Airplanes:** Docket No. FAA-2007-0389; Directorate Identifier 2007-NM-222-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by February 19, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to airplanes, certificated in any category, and equipped with auxiliary fuel tanks installed in accordance with specified supplemental type certificates (STCs), as identified in Table 1 of this AD. Table 1.—Affected Airplanes Airplanes Auxiliary tank STC(s) Boeing Model 727-100 series airplanes ST01587AT. Boeing Model 727-200 and -200F series airplanes SA2033NM, SA1474SO McDonnell Douglas Model DC-9-14 airplanes SA1334NM McDonnell Douglas Model DC-9-32, DC-9-32 (VC-9C), DC-9-32F, DC-9-33F, and DC-9-32F (C-9A, C-9B) airplanes SA1710SO and SA1358NM Unsafe Condition
(d)This AD results from fuel system reviews conducted by the manufacturer, which identified potential unsafe conditions for which the manufacturer has not provided corrective actions. We are issuing this AD to prevent 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. 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. Report
(f)Within 45 days after the effective date of this AD, submit a report to the Manager, Atlanta Aircraft Certification Office (ACO), FAA. The report must include the information listed in paragraphs (f)(1) and (f)(2) of 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 contained in this AD, and assigned OMB Control Number 2120-0056.
(1)The airplane registration and auxiliary tank STC number installed.
(2)The usage frequency in terms of total number of flights per year and total number of flights per year for which the auxiliary tank is used. Prevent Usage of Auxiliary Fuel Tanks
(g)On or before December 16, 2008, deactivate the auxiliary fuel tanks, in accordance with a deactivation procedure approved by the Manager of the Atlanta ACO. Any auxiliary tank component that remains on the airplane must be secured and must have no effect on the continued operational safety and airworthiness of the airplane. Deactivation may not result in the need for additional instructions for continued airworthiness. Note 1: Appendix A of this AD provides criteria that should be included in the deactivation procedure. The proposed deactivation procedures should be submitted to the Manager, Atlanta ACO as soon as possible to ensure timely review and approval. Note 2: For technical information, contact Randy Smith, President, Southeast Aero-Tek, Inc., 675 Oleander Drive, Merritt Island, Florida 32952; telephone
(321)453-7876; fax
(321)453-7872. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Atlanta 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. Appendix A—Deactivation Criteria The auxiliary fuel tank deactivation procedure required by paragraph
(g)of this AD should address the following actions.
(1)Permanently drain auxiliary fuel tanks, and clear them of fuel vapors to eliminate the possibility of out-gassing of fuel vapors from the emptied auxiliary tank.
(2)Disconnect all electrical connections from the fuel quantity indication system (FQIS), fuel pumps if applicable, float switches, and all other electrical connections required for auxiliary tank operation, and stow them at the auxiliary tank interface.
(3)Disconnect all pneumatic connections if applicable, cap them at the pneumatic source, and secure them.
(4)Disconnect all fuel feed and fuel vent plumbing interfaces with airplane original equipment manufacturer
(OEM)tanks, cap them at the airplane tank side, and secure them in accordance with a method approved by the FAA; one approved method is specified in AC 25-8 Fuel Tank Flammability Minimization. In order to eliminate the possibility of structural deformation during cabin decompression, leave open and secure the disconnected auxiliary fuel tank vent lines.
(5)Pull and collar all circuit breakers used to operate the auxiliary tank.
(6)Revise the weight and balance document, if required, and obtain FAA approval.
(7)Amend the applicable sections of the applicable airplane flight manual
(AFM)to indicate that the auxiliary fuel tank is deactivated. Remove auxiliary fuel tank operating procedures to ensure that only the OEM fuel system operational procedures are contained in the AFM. Amend the Limitations Section of the AFM to indicate that the AFM Supplement for the STC is not in effect. Place a placard in the flight deck indicating that the auxiliary tank is deactivated. The AFM revisions specified in this paragraph may be accomplished by inserting a copy of this AD into the AFM.
(8)Amend the applicable sections of the applicable airplane maintenance manual to remove auxiliary tank maintenance procedures.
(9)After the auxiliary fuel tank is deactivated, accomplish procedures such as leak checks and pressure checks deemed necessary before returning the airplane to service. These procedures must include verification that the airplane FQIS and fuel distribution systems have not been adversely affected.
(10)Include with the operator's proposed procedures any relevant information or additional steps that are deemed necessary by the operator to comply with the deactivation and return the airplane to service. Issued in Renton, Washington, on December 19, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-25482 Filed 12-31-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0218; Directorate Identifier 92-ANE-56-AD] RIN 2120-AA64 Airworthiness Directives; Lycoming Engines, Fuel Injected Reciprocating Engines 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)for certain fuel injected reciprocating engines manufactured by Lycoming Engines. That AD currently requires inspection, and replacement if necessary, of externally mounted fuel injector fuel lines. This proposed AD would require the same actions but would add additional engine models, would clarify certain compliance time wording, and would exempt engines that have a Maintenance and Overhaul Manual with an Airworthiness Limitations Section that requires inspection, and replacement if necessary, of externally mounted fuel injector lines. This proposed AD results from Lycoming Engines revising their Mandatory Service Bulletin
(MSB)to add new engine models requiring inspection, and from the need to clarify a repetitive inspection compliance time. We are proposing this AD to prevent failure of the fuel injector fuel lines that would allow fuel to spray into the engine compartment, resulting in an engine fire. DATES: We must receive any comments on this proposed AD by March 3, 2008. ADDRESSES: Use one of the following addresses to comment on this proposed AD. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. • *Hand Delivery:* Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Fax:*
(202)493-2251. Contact Lycoming Engines, 652 Oliver Street, Williamsport, PA 17701, or go to *http://www.lycoming.textron.com* , for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Norm Perenson, Aerospace Engineer, New York Aircraft Certification Office, FAA, Engine & Propeller Directorate, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; e-mail: *Norman.perenson@faa.gov* ; telephone
(516)228-7337; fax
(516)794-5531. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2007-0218; Directorate Identifier 92-ANE-56-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the Web site, anyone can find and read the comments in any of our dockets, including, if provided, the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78). 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 the same as the Mail address provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. Discussion The FAA proposes to amend 14 CFR part 39 by superseding AD 2002-26-01, Amendment 39-12986 (67 FR 78965, December 27, 2002). That AD requires inspection, and replacement if necessary, of externally mounted fuel injector fuel lines. That AD was the result of the need to ensure that the additional Textron Lycoming fuel injected engine series listed in that final rule, receive the same inspections as series covered by the two previous ADs that were superseded by AD 2002-26-01. That condition, if not corrected, could result in failure of the fuel injector fuel lines allowing fuel to spray into the engine compartment, resulting in an engine fire. Actions Since AD 2002-26-01 Was Issued Since AD 2002-26-01 was issued, Lycoming Engines has added new engine models to the list of engines requiring inspection, and replacement if necessary, of externally mounted fuel injector fuel lines. They have also added other new engines that are exempt from this AD, because they have a Maintenance and Overhaul Manual with an Airworthiness Limitations Section that requires inspection, and replacement if necessary, of externally mounted fuel injector lines. These engines are not listed in the revised Lycoming Engines MSB. Also, since AD 2002-26-01 was issued, we found that we need to clarify the repetitive inspection compliance time from “at each 100-hour inspection” to “at intervals of 100 hours time-in-service (not to exceed 110 hours)”, to include engines that are not subject to 100-hour inspections. Relevant Service Information We have reviewed and approved the technical contents of Lycoming Engines MSB No. 342E, dated May 18, 2004, which describes procedures for inspecting, and if necessary replacing the fuel injector fuel lines. That MSB supersedes Textron Lycoming MSB No. 342D, MSB No. 342C, MSB No. 342B, Supplement No. 1 to MSB 342B, MSB 342A, and MSB 342. 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 products of this same type design. For that reason, we are proposing this AD, which would supersede AD 2002-26-01 to add additional Lycoming Engines engine models to the applicability of the AD, and to clarify the repetitive inspect compliance time. The proposed AD would require that you do the inspections using the service information described previously. Costs of Compliance We estimate that 17,740 engines installed on aircraft of U.S. registry would be affected by this proposed AD, that it would take about 1 work-hour to inspect and replace all lines on a four-cylinder engine, 1.5 work-hours to inspect and replace all lines on a six-cylinder engine, and 2 work-hours to inspect and replace all lines on an eight-cylinder engine, and that the average labor rate is $80 per work hour. Required parts would cost about $484 for a four-cylinder engine, $726 for a six-cylinder engine, and $968 for an eight-cylinder engine. Based on these figures, the total cost per airplane of the proposed AD on U.S. operators is estimated as follows: • $564 for a four-cylinder engine. • $846 for a six-cylinder engine. • $1,128 for an eight-cylinder engine. 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. Docket Number Change We are transferring the docket for this AD to the Federal Docket Management System as part of our on-going docket management consolidation efforts. The new Docket No. is FAA-2007-0218. The old Docket No. became the Directorate Identifier, which is 92-ANE-56-AD. 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 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. Would 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. 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 Under the authority delegated to me by the Administrator, the Federal Aviation Administration 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 39-12986 (67 FR 78965, December 27, 2002) and by adding a new airworthiness directive to read as follows: **Lycoming Engines (formerly Textron Lycoming Division, AVCO Corporation):** Docket No. FAA-2007-0218; Directorate Identifier 92-ANE-56-AD. Comments Due Date
(a)The Federal Aviation Administration
(FAA)must receive comments on this airworthiness directive
(AD)action by March 3, 2008. Affected ADs
(b)This AD supersedes AD 2002-26-01, Amendment 39-12986. Applicability
(c)This AD applies to fuel injected reciprocating engines manufactured by Lycoming Engines, that incorporate externally mounted fuel injection lines (engines with an “I” in the prefix of the engine model designation) as listed in the following Table 1: Table 1.—Engine Models Affected Engine Model AEIO-320 -D1B, -D2B, -E1B, -E2B AIO-320 -A1B, -BIB, -C1B IO-320 -B1A, -B1C, -C1A, -D1A, -D1B, -E1A, -E1B, -E2A, -E2B LIO-320 -B1A, -C1A AEIO-360 -A1A, -A1B, -A1B6, -A1D, -A1E, -A1E6, -B1F, -B2F, -B1G6, -B1H, -B4A, -H1A, -H1B AIO-360 -A1A, -A1B, -B1B HIO-360 -A1A, -A1B, -B1A, -C1A, -C1B, -D1A, -E1AD, -E1BD, -F1AD, -G1A IO-360 -A1A, -A1B, -A1B6, -A1B6D, -A1C, -A1D, -A1D6, -A2A, -A2B, -A3B6, -A3B6D, -B1B, -B1D, -B1E, -B1F, -B1G6, -B2F, -B2F6, -B4A, -C1A, -C1B, -C1C, -C1C6, -C1D6, -C1E6, -C1F, -C1G6, -C2G6, -F1A, -J1A6D, -M1B, -L2A, -M1A IVO-360 -A1A LIO-360 -C1E6 TIO-360 -A1B, -C1A6D IGO-480 -A1B6 AEIO-540 -D4A5, -D4B5, -D4D5, -L1B5, -L1B5D, -L1D5 IGO-540 -B1A, -B1C IO-540 -A1A5, -AA1A5, -AA1B5, -AB1A5, -AC1A5, -AE1A5, -B1A5, -B1C5, -C1B5, -C4B5, -C4D5D, -D4A5, -E1A5, -E1B5, -G1A5, -G1B5, -G1C5, -G1D5, -G1E5, -G1F5, -J4A5, -V4A5D, -K1A5, -K1A5D, -K1B5, -K1C5, -K1D5, -K1E5, -K1E5D, -K1F5, K1H5, -K1J5, -K1F5D, -K1G5, -K1G5D, -K1H5, -K1J5D, -K1K5, -K1E5, -K1E5D, -K1F5, -K1J5, -L1C5, -M1A5, -M1B5D, -M1C5, -N1A5, -P1A5, -R1A5, -S1A5, -T4A5D, -T4B5, -T4B5D, -T4C5D, -V4A5, -V4A5D, -W1A5, -W1A5D, -W3A5D IVO-540 -A1A LTIO-540 -F2BD, -J2B, -J2BD, -N2BD, -R2AD, -U2A, -V2AD, -W2A TIO-540 -A1A, -A1B, -A2A, -A2B, -A2C, AE1A5, -AE2A, -AH1A, -AA1AD, -AF1A, -AF1B, -AG1A, -AB1AD, -AB1BD, -AH1A, -AJ1A, -AK1A, -C1A, -E1A, -G1A, -F2BD, -J2B, -J2BD, -N2BD, -R2AD, -S1AD, -U2A, -V2AD, -W2A TIVO-540 -A2A IO-720 -A1A, -A1B, -D1B, -D1BD, -D1C, -D1CD, -B1B, -B1BD, -C1B Engine models in Table 1 are installed on, but not limited to Piper PA-24 Comanche, PA-30 and PA-39 Twin Comanche, PA-28 Arrow, and PA-23 Aztec; Beech 23 Musketeer; Mooney 20, and Cessna 177 Cardinal airplanes.
(d)This AD is not applicable to engines having internally mounted fuel injection lines, which are not accessible.
(e)This AD is not applicable to engines that have a Maintenance and Overhaul Manual with an Airworthiness Limitations Section that requires inspection, and replacement if necessary, of externally mounted fuel injector lines. Unsafe Condition
(f)This AD results from Lycoming Engines revising their Mandatory Service Bulletin
(MSB)to add new engine models requiring inspection, and from the need to clarify a repetitive inspection compliance time. We are issuing this AD to prevent failure of the fuel injector fuel lines that would allow fuel to spray into the engine compartment, resulting in an engine fire. Compliance
(g)You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done. Engines That Have Had Initial Inspections
(h)For engines that have had initial inspections in accordance with Textron Lycoming Mandatory Service Bulletin
(MSB)No. 342, dated March 24, 1972; Textron Lycoming MSB No. 342A, dated May 26, 1992 Textron Lycoming MSB No. 342B, dated October 22, 1993; Supplement No. 1 to MSB No. 342B, dated April 27, 1999; Textron Lycoming MSB No. 342C, dated April 28, 2000; Textron Lycoming MSB No. 342D, dated July 10, 2001, and Lycoming Engines MSB No. 342E, dated May 18, 2004, inspect in accordance with paragraph
(j)of this AD. Engines That Have Not Had Initial Inspections
(i)For engines that have not had initial inspections previously done in accordance with Textron Lycoming MSB No. 342, dated March 24, 1972; Textron Lycoming MSB No. 342A, dated May 26, 1992; Textron Lycoming MSB No. 342B, dated October 22, 1993; Supplement No. 1 to MSB No. 342B, dated April 27, 1999; Textron Lycoming MSB No. 342C, dated April 28, 2000; Textron Lycoming MSB No. 342D, dated July 10, 2001; or Lycoming Engines MSD No. 342E, dated May 18, 2004, inspect as follows:
(1)For engines that have not yet had any fuel line maintenance done, or have not had any fuel line maintenance done since new or since the last overhaul, inspect in accordance with paragraph
(k)of this AD within 50 hours time-in-service
(TIS)after the effective date of this AD.
(2)For all other engines, inspect in accordance with paragraph
(k)of this AD within 10 hours TIS after the effective date of this AD. Repetitive Inspections
(j)Thereafter, inspect at intervals of 100 hours TIS (not to exceed 110 hours), at each engine overhaul, and after any maintenance has been done on the engine where any clamp (or clamps) on a fuel injector line (or lines) has been disconnected, moved, or loosened, inspect in accordance with paragraph
(k)of this AD. Inspection Criteria
(k)Inspect the fuel injector fuel lines and clamps between the fuel manifold and the fuel injector nozzles and replace as necessary any fuel injector fuel line and clamp that does not meet all conditions specified in Lycoming Engines MSB No. 342E, dated May 18, 2004. Alternative Methods of Compliance
(l)The Manager, New York Aircraft Certification Office, FAA, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Related Information
(m)FAA Special Airworthiness Information Bulletin No. NE-07-49, dated September 20, 2007, is not mandatory, but has additional information on this subject.
(n)Contact Norm Perenson, Aerospace Engineer, New York Aircraft Certification Office, FAA, Engine & Propeller Directorate, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; *e-mail: Norman.perenson@faa.gov;* telephone
(516)228-7337; fax
(516)794-5531, for more information about this AD. Issued in Burlington, Massachusetts, on December 21, 2007. Peter A. White, Assistant Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-25456 Filed 12-31-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Bureau of Customs and Border Protection 19 CFR Parts 4, 12, 18, 101, 103, 113, 122, 123, 141, 143, 149 and 192 [USCBP-2007-0077] RIN 1651-AA70 Importer Security Filing and Additional Carrier Requirements AGENCY: Customs and Border Protection, Department of Homeland Security. ACTION: Notice of proposed rulemaking. SUMMARY: To help prevent terrorist weapons from being transported to the United States, vessel carriers bringing cargo to the United States are currently required to transmit certain information to Customs and Border Protection
(CBP)about the cargo they are transporting prior to lading that cargo at foreign ports of entry. This document proposes to require both importers and carriers to submit additional information pertaining to cargo before the cargo is brought into the United States by vessel. CBP must receive this information by way of a CBP-approved electronic data interchange system. The information required is reasonably necessary to further improve the ability of CBP to identify high-risk shipments so as to prevent smuggling and ensure cargo safety and security. The proposed regulations are specifically intended to fulfill the requirements of section 203 of the Security and Accountability for Every
(SAFE)Port Act of 2006 and section 343(a) of the Trade Act of 2002, as amended by the Maritime Transportation Security Act of 2002. DATES: Written comments must be submitted on or before March 3, 2008. ADDRESSES: You may submit comments, identified by *docket number* , by *one* of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments via docket number Dept: [INSERT DOCKET NUMBER]. • *Mail* : Border Security Regulations Branch, Office of Trade, U.S Customs and Border Protection, 1300 Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229. *Instructions* : All submissions received must include the agency name and document number for this rulemaking. All comments received will be posted without change to *http://www.regulations.gov* , including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.regulations.gov* . Submitted comments may also be inspected on regular business days between the hours of 9 a.m. and 4:30 p.m. at the Office of International Trade, Customs and Border Protection, 799 9th Street, NW., 5th Floor, Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at
(202)572-8768. FOR FURTHER INFORMATION CONTACT: Richard Di Nucci, Office of Field Operations,
(202)344-2513. SUPPLEMENTARY INFORMATION: Table of Contents I. Public Participation II. Background A. Current Requirements and CBP Authority for Issuance of Proposed Rule
(1)24 Hour Rule
(2)Trade Act Regulations
(3)SAFE Port Act B. Statutory Factors Governing Development of Regulations C. Carrier and Importer Requirements Presented Separately III. Proposed Carrier Requirements Relating to Vessel Cargo Destined to the United States A. Overview; Vessel Stow Plan B. Overview; Container Status Messages 1. Events Requiring a CSM, Effective Upon Implementation of the Final Rule 2. Additional Events Requiring a CSM, Effective 90 Days After CBP Publishes a Notice in the **Federal Register** IV. Proposed Importer Requirement for Vessel Cargo Destined to the United States A. Overview; Required Elements 1. Shipments Other Than FROB, IE Shipments, and T&E Shipments 2. FROB, IE shipments, and T&E shipments B. Public Comments; Required Elements C. Overview; Master Bills/House Bills D. Public Comments; Master Bills/House Bills E. Overview; CBP-approved Electronic Interchange System F. Public Comments; CBP-approved Electronic Interchange System G. Overview; Authorized Agents H. Public Comments; Authorized Agents I. Public Comments; Requested Exemptions/Exclusions From Importer Security Filing Requirements 1. Bulk and Break Bulk Cargo 2. Foreign Cargo Remaining on Board, In-bond Shipments, and Instruments of International Traffic J. Overview; Updating an Importer Security Filing K. Public Comments; Withdrawing an Importer Security Filing L. Overview; Importer Security Filing, Entry, and Application for FTZ Admission 1. Importer Security Filing and Entry 2. Importer Security Filing and Application for FTZ Admission M. Public Comments; Importer Security Filing, Entry, and Application for FTZ Admission V. General Public Comments A. Economic Analysis; Cost, Benefit, and Feasibility Study B. Protection of Confidential Information Presented to CBP C. Test of Concept and Phase-in Enforcement D. Other General Comments VI. Amendments to Bond Conditions A. Bond Conditions Related to the Proposed Importer Security Filing, Vessel Stow Plan, and Container Status Message Requirements B. Bond Conditions Related to the Trade Act Regulations VIII. Regulatory Analyses A. Executive Order 12866 B. Regulatory Flexibility Act C. Unfunded Mandated Reform Act D. Paperwork Reduction Act IX. Signing Authority X. Proposed Regulatory Amendments Abbreviations and Terms Used in This Document AAEI—American Association of Exporters and Importers AAPA—American Association of Port Authorities ABI—Automated Broker Interface ACE—Automated Commercial Environment AMS—Automated Manifest System ANSI—American National Standards Institute ATDI—Advance Trade Data Initiative ATS—Automated Targeting System CBP—Customs and Border Protection COAC—Departmental Advisory Committee on Commercial Operations of Customs and Border Protection and Related Homeland Security Functions CFR—Code of Federal Regulations CSI—Container Security Initiative CSM—Container status message C-TPAT—Customs-Trade Partnership Against Terrorism DDP—Delivered duty paid DDU—Delivered duty unpaid DHS—U.S. Department of Homeland Security EIN—Employer identification number FAQ—Frequently asked questions FROB—Foreign cargo remaining on board FTZ—Foreign trade zone HTSUS—Harmonized Tariff Schedule of the United States ICPA—International Compliance Professionals Association IE—Immediate exportation IIT—Instruments of international traffic IMO—International Maritime Organization IRS—Internal Revenue Service ITDS—International Trade Data System JIG—Joint Industry Group MID—Manufacturer identification MTSA—Maritime Transportation Security Act of 2002 NAM—National Association of Manufacturers NCBFAA—National Customs Brokers and Forwarders Association of America NVOCC—Non-vessel operating common carrier OMB—Office of Management and Budget Pub. L.—Public Law RFA—Regulatory Flexibility Act of 1980 RILA—Retail Industry Leaders Association SAFE Port Act—Security and Accountability for Every Port Act of 2006 SBREFA—Small Business Regulatory Enforcement Fairness Act of 1996 SSN—Social security number T&E—Transportation and exportation TSN—Trade Support Network UMRA—Unfunded Mandates Reform Act of 1995 UN EDIFACT—United Nations rules for Electronic Data Interchange For Administration, Commerce and Transport U.S.C.—United States Code WCO—World Customs Organization WSC—World Shipping Council I. Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the notice of proposed rulemaking. The Department of Homeland Security
(DHS)also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposal. Comments that will provide the most assistance to the Department in developing these procedures will reference a specific portion of the proposal, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. II. Background A. Current Requirements and CBP Authority for Issuance of Proposed Rule 1. 24 Hour Rule Section 1431 of title 19, United States Code (19 U.S.C. 1431) requires that every vessel bound for the United States and required to make entry under 19 U.S.C. 1434 have a manifest that meets the requirements that are prescribed by regulation. Pursuant to 19 U.S.C. 1431, Customs and Border Protection
(CBP)published a final rule in the **Federal Register** (67 FR 66318) on October 31, 2002, which amended the regulations in title 19, Code of Federal Regulations (CFR), to require, among other things, the advance and accurate presentation of certain manifest information 24 hours prior to lading of containerized and non-exempt break bulk cargo at a foreign port and to encourage the presentation of this information electronically, commonly known as the 24 Hour Rule. The advance information required pursuant to the October 31, 2002, final rule is required in order to enable CBP to evaluate the potential risk of smuggling weapons of mass destruction through the use of oceangoing cargo containers before goods are loaded on vessels destined to the United States. This advance information ensures compliance with U.S. law and enables CBP to facilitate the prompt release of legitimate cargo following its arrival in the United States. The information assists CBP in increasing the security of the global trading system and, thereby, reducing potential threats to the United States and world economy. 2. Trade Act Regulations Pursuant to section 343(a) of the Trade Act of 2002 (19 U.S.C. 2071 note), as amended by section 108 of the Maritime Transportation Security Act of 2002 (Pub. L. 107-295, 116 Stat. 2064), CBP published a final rule in the **Federal Register** (68 FR 68140) on December 5, 2003, which, among other things, amended the 24 Hour Rule regulations to require the transmission of this information by way of the CBP Vessel Automated Manifest System (AMS). *See* 19 CFR 4.7 and 4.7a. The advance electronic transmission of cargo information required was determined to be reasonably necessary for CBP to identify high-risk shipments to prevent smuggling and ensure cargo safety and security. 3. SAFE Port Act On October 13, 2006, the President signed into law the Security and Accountability for Every Port Act of 2006 (Pub. L. 109-347, 120 Stat 1884) (SAFE Port Act). Pursuant to Section 203 of the SAFE Port Act (6 U.S.C. 943), the Secretary of Homeland Security, acting through the Commissioner of CBP must promulgate regulations to require the electronic transmission of additional data elements for improved high-risk targeting, including appropriate security elements of entry data for cargo destined to the United States by vessel prior to loading of such cargo on vessels at foreign seaports. This NPRM proposes to require the electronic transmission of additional data for improved high-risk targeting. 1 Some of these data elements would be required from carriers and others would be required from “importers,” as that term is defined for purposes of these regulations. 1 Information on cargo feeds into CBP's Automated Targeting System
(ATS)and is run against the system's protocols to evaluate all cargo shipments headed to the United States. ATS uses algorithms and anomaly analysis to identify high-risk targets. The system screens 100 percent of all cargo shipments. Using risk management principles and strategic intelligence, analysts use the system to identify shipments that pose a potential terrorist threat. One hundred percent of all high-risk shipments are inspected on arrival at ports of entry in the United States or in Container Security Initiative affiliated ports overseas. Prior to enactment of the SAFE Port Act, CBP had already undertaken an internal review of its targeting and inspection processes. Consequently, CBP had implemented a comprehensive strategy designed to enhance national security while protecting the economic vitality of the United States. The Container Security Initiative (CSI), the 24 Hour Rule, and the Customs-Trade Partnership Against Terrorism (C-TPAT) are cornerstone approaches implemented to further this goal. Additionally, CBP has developed cargo risk assessment capabilities in its Automated Targeting System
(ATS)to screen all maritime containers before they are loaded aboard vessels in foreign ports. Each of these initiatives is dependent upon data supplied by trade entities, including carriers, non-vessel operating common carriers (NVOCCs), brokers, importers or their agents. The information that CBP currently analyzes to generate its risk assessment prior to vessel loading contains the same data elements that were originally established by the 24 Hour Rule. For the most part, this is the ocean carrier's or NVOCC's cargo declaration. While this was a sound initial approach to take after the tragic events of September 11th, internal and external government reviews have concluded that more complete advance shipment data would produce even more effective and more vigorous cargo risk assessments. In late 2004, the Departmental Advisory Committee on Commercial Operations of Customs and Border Protection and Related Homeland Security Functions
(COAC)forwarded to the Department of Homeland Security and CBP one of its subcommittees' recommendations, which provided that: “For ATS to provide enhanced security screening, the system should acquire additional shipment data to be used in the pre-vessel loading security screening process.” COAC recommended that CBP undertake a thorough review of the data element recommendations with the Trade Support Network
(TSN)to determine what data elements the government required to improve the agency's risk assessment and targeting capabilities. Accordingly, CBP undertook further internal review and analysis of its targeting and inspection processes and worked with the TSN on this issue. Based upon its analysis, as well as the requirements under the SAFE Port Act, CBP is proposing to require the electronic transmission of additional data for improved high-risk targeting. B. Statutory Factors Governing Development of Regulations Pursuant to section 203(d) of the SAFE Port Act, DHS is required to adhere to the parameters applicable to the development of regulations under section 343(a) of the Trade Act of 2002, including provisions relating to consultation, technology, analysis, use of information, confidentiality, and timing requirements. Under section 343(a) of the Trade Act of 2002, as amended, the requirement to provide information to CBP is generally to be imposed upon the party likely to have direct knowledge of the required information. However, where doing so is not practicable, CBP in the proposed regulations must take into account how the party on whom the requirement is imposed acquires the necessary information under ordinary commercial practices, and whether and how this party is able to verify the information it has acquired. Where the party is not reasonably able to verify the information, the proposed regulations must allow the party to submit the information on the basis of what it reasonably believes to be true. Furthermore, in developing the regulations, CBP, as required, has taken into consideration the remaining parameters set forth in the statute, where applicable, including: —The existence of competitive relationships among parties upon which the information collection requirements are imposed; —Different commercial practices and operational characteristics, and the technological capacity to collect and transmit information electronically; —The need for interim requirements to reflect the technology that is available at the time of promulgation of the regulations for purposes of the parties transmitting, and CBP receiving and analyzing, electronic information in a timely fashion; —That the use of the additional information collected pursuant to these regulations is to be only for ensuring cargo safety and security and preventing smuggling and not for determining merchandise entry or for any other commercial enforcement purposes; —The protection of the privacy of business proprietary and any other confidential cargo information that CBP receives under these regulations, with the exception that a limited portion of certain manifest information may be required to be made available for public disclosure pursuant to 19 U.S.C. 1431(c); —Balancing the impact on the flow of commerce with the impact on cargo safety and security in determining the timing for transmittal of required information; —Where practicable, avoiding requirements in the regulations that are redundant with one another or with requirements under other provisions of law; and —The need, where appropriate, for different transition periods for different classes of affected parties to comply with the electronic filing requirements in the regulations. Additionally, the statute requires that a broad range of parties, including importers, exporters, carriers, customs brokers, and freight forwarders, among other interested parties likely to be affected by the regulations, be consulted and their comments obtained and evaluated as a prelude to the development and promulgation of the regulations. In furtherance of this requirement, CBP met with COAC and other industry groups, including the American Association of Exporters and Importers (AAEI), the American Association of Port Authorities (AAPA), the Joint Industry Group (JIG), the National Association of Manufacturers (NAM), the National Customs Brokers and Forwarders Association of America (NCBFAA), the International Compliance Professionals Association (ICPA), the Retail Industry Leaders Association (RILA), the TSN, the U.S. Chamber of Commerce, and the World Shipping Council (WSC). In meetings and during conference calls, members of the importing and exporting community made many significant observations, insights, and suggestions as to what CBP should consider and how CBP should proceed in composing the proposed regulations. CBP presented to these groups a document entitled “CBP Proposal for Advance Trade Data Elements” (the “10+2 Strawman”). CBP also posted the 10+2 Strawman on the CBP Web site along with a request for comments from the public. The Strawman was known as 10+2 because ten of the elements are to come from importers, as defined in these regulations, describing the cargo, and two of the elements are to come from carriers including information regarding the containers and conveyances in which the cargo is loaded. Numerous commenters responded to the 10+2 Strawman. At CBP's request, the COAC Advance Data Subcommittee also prepared and presented recommendations to CBP. Indeed, input and recommendations from those members of the trade who participated in the meetings discussed above, the various workgroups of the COAC subcommittee, as well as the views expressed in the many e-mail submissions on this matter, were considered in the development of these proposed regulations. In this document, CBP responds to comments that were received in response to the 10+2 Strawman and the recommendation of the COAC Advance Data Subcommittee. General comments and responses are presented in Section III of this document. Comments relating to specific aspects of the proposal are presented in the section of this document that discusses CBP's proposal relating to that particular aspect. C. Carrier and Importer Requirements Presented Separately Under the proposed regulations, carriers would be generally required to submit a vessel stow plan and container status messages regarding certain events relating to containers loaded on vessels destined to the United States (the “2” of “10+2”). Importers, as defined in these regulations, would be required to submit an Importer Security Filing containing certain data elements (the “10” of “10+2”). For purposes of the proposed regulations, importer means the party causing goods to arrive within the limits of a port in the United States. For foreign cargo remaining on board (FROB), the importer is construed as the carrier. For immediate exportation
(IE)and transportation and exportation (T&E) in-bond shipments, and goods to be delivered to a foreign trade zone (FTZ), the importer is construed as the party filing the IE, T&E, or FTZ documentation with CBP. Because the proposed requirements for carriers and importers are different in scope and timing, they are presented separately below. III. Proposed Carrier Requirements Relating to Vessel Cargo Destined to the United States A. Overview; Vessel Stow Plan Pursuant to the authority granted in section 343(a) of the Trade Act of 2002, as amended by the Maritime Transportation Security Act of 2002 (MTSA), CBP is proposing to require carriers to submit a vessel stow plan for vessels destined to the United States. The vessel stow plan is used to transmit information about the physical location of cargo loaded aboard a vessel, which enhances the security of the maritime environment. Under the proposed regulations, CBP must receive the stow plan for vessels transporting containers and/or break bulk cargo no later than 48 hours after departure from the last foreign port. For voyages less than 48 hours in duration, CBP must receive the stow plan prior to the vessel's arrival at the first port in the United States. Bulk carriers would be exempt from this requirement for vessels exclusively carrying bulk cargo. The vessel stow plan must be submitted via the CBP-approved electronic data interchange system. The current approved electronic data interchange system for the vessel stow plan is vessel AMS. If CBP approves of different or additional electronic data interchange systems, CBP will publish a notice in the **Federal Register** . Under the proposed regulations, the vessel stow plan must include standard information relating to the vessel and each container and unit of break bulk cargo laden on the vessel. The vessel stow plan must include the following standard information: With regard to the vessel,
(1)Vessel name (including international maritime organization
(IMO)number);
(2)Vessel operator; and
(3)Voyage number. With regard to each container or unit of break bulk cargo,
(1)Container operator, if containerized;
(2)Equipment number, if containerized;
(3)Equipment size and type, if containerized;
(4)Stow position;
(5)Hazmat-UN code;
(6)Port of lading; and
(7)Port of discharge. B. Overview; Container Status Messages Pursuant to section 343(a) of the Trade Act of 2002, CBP is proposing to require carriers to submit container status messages
(CSMs)daily for certain events relating to all containers laden with cargo destined to arrive within the limits of a port in the United States by vessel. Container status messages serve to facilitate the intermodal handling of containers by streamlining the information exchange between trading partners involved in administration, commerce, and transport of containerized shipments. Container status messages will provide CBP with additional transparency into the custodial environment through which inter-modal containers are handled and transported before arrival in the United States. This enhanced view (in corroboration with other advance data messages) into the international supply chain will contribute to the security of the United States and in the international supply chain through which containers and import cargos reach ports in the United States. The messages are used to report terminal container movements ( *e.g.* , loading and discharging the vessel) and to report the change in status of containers ( *e.g.* , empty or full). There are two basic standards governing the formation of CSMs. These are the American National Standards Institute
(ANSI)X.12 standard and the United Nations rules for Electronic Data Interchange For Administration, Commerce and Transport (UN EDIFACT) standard. Under the proposed regulations, CSMs created under either standard will be acceptable. Under the proposed regulations, carriers must submit a CSM when any of the required events occurs if the carrier creates or collects a CSM in its equipment tracking system reporting that event. The proposed regulations would not require a carrier create or collect any CSM data other than that which the carrier already creates or collects on its own and maintains in its electronic equipment tracking system. CSMs must be submitted no later than 24 hours after the message is entered into the carrier's equipment tracking system. The events for which CSMs would be required are:
(1)When the booking relating to a container which is destined to arrive within the limits of a port in the United States by vessel is confirmed;
(2)When a container which is destined to arrive within the limits of a port in the United States by vessel undergoes a terminal gate inspection;
(3)When a container, which is destined to arrive within the limits of a port in the United States by vessel, arrives or departs a facility (These events take place when a container enters or exits a port, container yard, or other facility. Generally, these CSMs are referred to as “gate-in” and “gate-out” messages.);
(4)When a container, which is destined to arrive within the limits of a port in the United States by vessel, is loaded on or unloaded from a conveyance (This includes vessel, feeder vessel, barge, rail and truck movements. Generally, these CSMs are referred to as “loaded on” and “unloaded from” messages);
(5)When a vessel transporting a container, which is destined to arrive within the limits of a port in the United States by vessel, departs from or arrives at a port (These events are commonly referred to as “vessel departure” and “vessel arrival” notices);
(6)When a container which is destined to arrive within the limits of a port in the United States by vessel undergoes an intra-terminal movement;
(7)When a container which is destined to arrive within the limits of a port in the United States by vessel is ordered stuffed or stripped;
(8)When a container which is destined to arrive within the limits of a port in the United States by vessel is confirmed stuffed or stripped; and
(9)When a container which is destined to arrive within the limits of a port in the United States by vessel is shopped for heavy repair. CBP is aware that it may be cost beneficial for some carriers to transmit all CSMs, rather than filter out CSMs relating to containers destined to the United States or relating only to the required events. Accordingly, CBP is proposing to allow carriers to transmit their “global” CSM messages, including CSMs relating to containers that do not contain cargo destined for importation into the United States and CSMs relating to events other than the required events. By transmitting CSMs in addition to those required by the proposed regulations, a carrier authorizes CBP to access and use that data. For each CSM submitted, the following information must be included:
(1)Event code being reported, as defined in the ANSI X.12 or UN EDIFACT standards;
(2)Container number;
(3)Date and time of the event being reported;
(4)Status of the container (empty or full);
(5)Location where the event took place; and
(6)Vessel identification associated with the message. Carriers would be exempt from the CSM requirement for bulk and break bulk cargo. Under the proposed regulations, CSMs must be submitted via the CBP-approved electronic data interchange system. The current approved electronic data interchange system for CSMs is vessel AMS. CBP is continuing to consider additional electronic interchange systems. If CBP approves of a different or additional electronic data interchange system, CBP will publish notice in the **Federal Register** . IV. Proposed Importer Requirements for Vessel Cargo Destined to the United States A. Overview; Required Elements Pursuant to the authority of section 343(a) of the Trade Act of 2002 and section 203 of the SAFE Port Act, in order to enhance the security of the maritime environment, CBP is proposing to require importers, as defined in these regulations, or their agents, to transmit an Importer Security Filing to CBP, for cargo other than foreign cargo remaining on board (FROB), no later than 24 hours before cargo is laden aboard a vessel destined to the United States. Because FROB is frequently laden based on a last-minute decision by the carrier, the Importer Security Filing for FROB would not be required 24 hours prior to lading. Rather, the Importer Security Filing for FROB would be required any time prior to lading. 2 2 CBP is not proposing to amend the timing requirements in 19 CFR part 4 requiring submission of advance manifest information 24 hours prior to lading. Under the proposed regulations, 10 elements are required for shipments consisting of goods intended to be entered into the United States and goods intended to be delivered to a foreign trade zone (FTZ). For goods to be delivered to an FTZ, the importer is construed as the party filing the FTZ documentation with CBP. These 10 elements must be transmitted by the importer, as defined in these regulations, or its agent. Five elements are required for shipments consisting entirely of FROB and shipments consisting entirely of goods intended to be “transported” as immediate exportation
(IE)or transportation and exportation (T&E) in-bond shipments. For FROB, the importer is construed as the international carrier of the vessel arriving in the United States. For IE and T&E in-bond shipments, the importer is construed as the party filing the IE or T&E documentation with CBP. 1. Shipments Other Than FROB, IE Shipments, and T&E Shipments Under the proposed regulations, for the Importer Security Filing for shipments other than those consisting entirely of FROB and goods intended to be “transported” in-bond as an IE or T&E, 10 elements must be provided, unless specifically exempted. The manufacturer (or supplier) name and address, country of origin, and commodity HTSUS number must be linked to one another at the line item level. The ten required elements are:
(1)*Manufacturer (or supplier) name and address.* Name and address of the entity that last manufactures, assembles, produces, or grows the commodity or name and address of the supplier of the finished goods in the country from which the goods are leaving. In the alternative, the name and address of the manufacturer (or supplier) that is currently required by the import laws, rules and regulations of the United States ( *i.e.* , entry procedures) may be provided (this is the information that is used to create the existing manufacturer identification
(MID)number for entry purposes).
(2)*Seller name and address.* Name and address of the last known entity *by whom* the goods are sold or agreed to be sold. If the goods are to be imported otherwise than in pursuance of a purchase, the name and address of the owner of the goods must be provided. 3 3 The party required for this element is consistent with the information required on the invoice of imported merchandise. *See* 19 CFR 141.86(a)(2).
(3)*Buyer name and address.* Name and address of the last known entity *to whom* the goods are sold or agreed to be sold. If the goods are to be imported otherwise than in pursuance of a purchase, the name and address of the owner of the goods must be provided. 4 4 The party required for this element is consistent with the information required on the invoice of imported merchandise. *See* 19 CFR 141.86(a)(2).
(4)*Ship to name and address.* Name and address of the first deliver-to party scheduled to physically receive the goods after the goods have been released from customs custody.
(5)*Container stuffing location.* Name and address(es) of the physical location(s) where the goods were stuffed into the container. For break bulk shipments, the name and address(es) of the physical location(s) where the goods were made “ship ready” must be provided.
(6)*Consolidator (stuffer) name and address.* Name and address of the party who stuffed the container or arranged for the stuffing of the container. For break bulk shipments, the name and address of the party who made the goods “ship ready” or the party who arranged for the goods to be made “ship ready” must be provided.
(7)*Importer of record number / FTZ applicant identification number.* Internal Revenue Service
(IRS)number, Employer Identification Number (EIN), Social Security Number (SSN), or CBP assigned number of the entity liable for payment of all duties and responsible for meeting all statutory and regulatory requirements incurred as a result of importation. For goods intended to be delivered to an FTZ, the IRS number, EIN, SSN, or CBP assigned number of the party filing the FTZ documentation with CBP must be provided. The importer of record number for Importer Security Filing purposes is the same as “importer number” on CBP Form 3461.
(8)*Consignee number(s).* Internal Revenue Service
(IRS)number, Employer Identification Number (EIN), Social Security Number (SSN), or CBP assigned number of the individual(s) or firm(s) in the United States on whose account the merchandise is shipped. This element is the same as the “consignee number” on CBP Form 3461.
(9)*Country of origin.* Country of manufacture, production, or growth of the article, based upon the import laws, rules and regulations of the United States. This element is the same as the “country of origin” on CBP Form 3461.
(10)*Commodity HTSUS number.* Duty/statistical reporting number under which the article is classified in the Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS number is required to be provided to the 6 digit level. The HTSUS number may be provided up to the 10 digit level. This element is the same as the “H.S. number” on CBP Form 3461 and can only be used for entry purposes, if it is provided at the 10 digit level or greater. 2. FROB, IE Shipments, and T&E Shipments Under the proposed regulations, for the Importer Security Filing for shipments consisting entirely of FROB and shipments consisting entirely of goods intended to be “transported” in-bond as an IE or T&E, five elements must be provided in order to enhance the security of the maritime environment. The five required elements are:
(1)*Booking party name and address.* Name and address of the party who is paying for the transportation of the goods.
(2)*Foreign port of unlading.* Port code for the foreign port of unlading at the intended final destination.
(3)*Place of delivery.* City code for the place of delivery.
(4)*Ship to name and address.* Name and address of the first deliver-to party scheduled to physically receive the goods after the goods have been released from customs custody.
(5)*Commodity HTSUS number.* Duty/statistical reporting number under which the article is classified in the Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS number must be provided to the 6 digit level. The HTSUS number is required to be provided up to the 10 digit level. B. Public Comments; Required Elements Comment The Importer Security Filing should be based on the best information available at the time of filing. CBP, in consultation with the trade, should develop a process to amend a filing prior to arrival. An entry (CBP Form 3461, 7501 or 214) filed prior to arrival should be accepted as the amendment, except to change the name and address of the consolidator and/or place of container stuffing. CBP should issue frequently asked questions
(FAQs)clarifying when an amendment is required or recommended. CBP Response Pursuant to existing 19 CFR 4.7(b)(3)(iii) and proposed 19 CFR 149.2(c), CBP will take into consideration how, in accordance with ordinary commercial practices, the presenting party acquired Importer Security Filing information and whether and how the presenting party is able to verify this information. Where the presenting party is not reasonably able to verify such information, CBP will permit the party to electronically present the information on the basis of what the party reasonably believes to be true. Under the proposed regulations the party who filed the Importer Security Filing is required to update the Importer Security Filing if, after the filing and before the goods enter the limits of a port in the United States, there are changes to the information filed. Permission to divert T&E and IE shipments would be required. Such permission would only be granted upon receipt by CBP of a complete Importer Security Filing. Finally, in order to maintain the integrity of the differences between the Importer Security Filing and commercial documents and to facilitate compliance with the Trade Act requirement not to use security information for trade compliance purposes, CBP will not accept CBP Forms 3461, 7501, or 214 in lieu of an amendment to an Importer Security Filing. Comment CBP needs to provide instruction to the trade as to how to handle those situations where despite due diligence, all of the necessary data elements are simply not available 24 hours prior to loading. For example, importers may not know the container stuffing location, consolidator name and address, country of origin, and 6 digit HTSUS number 24 hours prior to lading. CBP Response CBP understands that, in some cases, business practices may have to be altered to obtain the required information in a timely fashion. CBP, however, will provide guidance in the form of FAQs, postings on the CBP website, and other outreach to the trade. If an importer, as defined in these regulations, does not know an element that is required pursuant to the proposed regulations, the importer must take steps necessary to obtain the information. For example, the 6 digit HTSUS number is sometimes provided by members of the trade community on T&E and IE in-bond movements. Under the proposed rulemaking, CBP would allow importers to submit the HTSUS number at the 6 digit level. CBP recognizes that, for most importers, this information is known well before the placement of the order for their goods because of the need to determine duty cost and admissibility status prior to finalizing the purchase contract or shipment contract. Comment Tier 3 C-TPAT members should be exempt from the Importer Security Filing requirement or, in the alternative, should be required to submit fewer than all of the required Importer Security Filing elements. Tier 3 C-TPAT supply chains have already been vetted by CBP. Why does CBP intend to repeat its risk assessment on each individual shipment? CBP Response CBP will use the Importer Security Filing to assess the risk of individual shipments. For purposes of this rulemaking, all cargo arriving to the United States by vessel, regardless of the parties involved, would be subject to the Importer Security Filing requirements. CBP is not proposing to allow exemption from, or alteration of, the requirement that C-TPAT partners submit Importer Security Filing information in advance of arrival. CBP believes that compliance with these regulations complements supply chain security and efficiency procedures being implemented by C-TPAT partners. Furthermore, it is emphasized that C-TPAT membership will continue to be viewed in a positive light for targeting purposes. It is more likely that shipments made by C-TPAT members will be readily and expeditiously cleared, and not be delayed for greater CBP scrutiny. Other related perquisites of C-TPAT partnership may include essential security benefits for suppliers, employees, and customers, such as a reduction in the number and extent of border inspections and eligibility for account-based processes. Comment The Importer Security Filing should be done by a single party; however that party should be permitted to rely on information from more than one source for the purpose of preparing the filing. CBP and the trade should remain open to proposals for any viable means by which a single Importer Security Filing could be done by more than one party. CBP Response Under the proposed regulations, the importer, as defined in these regulations, is ultimately responsible for the timely, accurate, and complete submission of the Importer Security Filing. CBP is proposing to require that one party aggregate and submit all required elements. In response to requests from the trade, CBP is proposing to allow importers to designate an agent to submit the filing on behalf of the importer. While CBP understands that some business practices may need to be altered to obtain the required information at an earlier point, CBP does not anticipate that these changes will be unduly burdensome. Comment CBP's current layered targeting approach, along with the additional Importer Security Filing data elements, such as container stuffing and consolidator data, provide CBP with the needed information with which to determine the last country of manufacture, production, assembly or shipping. Therefore, the current regulatory definition of country of origin as articulated by existing CBP regulations and free trade agreements should remain an option for satisfying the Importer Security Filing definition of country of origin. CBP Response CBP agrees. Under the proposed regulations, the country of origin is required to be provided for all goods that have been listed at least at the 6 digit HTSUS level. The proposed definition for this element is consistent with the country of origin as required on CBP Form 3461. Comment The security filing should require an HTSUS number at only the 6 digit level; however the system used for filing should be capable of accepting up to a 10 digit HTSUS number. CBP Response CBP agrees. Under the proposed regulations, the importer, as defined in these regulations, is required to provide the HTSUS number 24 hours prior to lading at the HTSUS number at the 6 digit level. However, importers may submit the HTSUS number up to the 10 digit level (they must use the 10 digit level if they plan to use the Importer Security Filing as part of an entry filing). Comment There should be no mandatory linking of the HTSUS number to the country of origin and manufacturer (or supplier) name and address data elements. If this linking is proposed by CBP in its NPRM, the agency must first ensure this specific topic is addressed in a separate cost/benefit analysis, with the participation of the trade, and the results separately reported, because the linking would potentially impose a significant cost burden on the trade both from a programming perspective and a service provider fee perspective. The data in question is also generally not provided at the line item level to foreign entities such as freight forwarders. CBP Response CBP disagrees. Under the proposed regulations, the manufacturer (or supplier) name and address, country of origin, and commodity HTSUS number elements must be linked to one another at the line item level. CBP has considered the economic impacts of this proposed rule in its cost, benefit, and feasibility study. A summary of this analysis is presented below, and the complete analysis can be found on the CBP website and the public docket for this rulemaking ( *see www.regulations.gov* ). Regarding the potential burden, the data is already provided to CBP at the line item level for entry and entry summary purposes. If an importer, as defined in these regulations, chooses to use a foreign freight forwarder as an agent for Importer Security Filing purposes, the importer will need to provide this data to that party at the line item level. Comment The CBP proposal and data elements must include a bill of lading number. CBP Response The bill of lading number is necessary to link the carrier's submissions with the Importer Security Filing submission. Under the 24 Hour Rule, the carrier is required to provide the bill of lading number 24 hours prior to lading. Therefore, the importer, as defined in these regulations, or its authorized agent would be required to submit the bill of lading number when the importer elements are submitted. Comment The Importer Security Filing data elements and definitions should align with those of the World Customs Organization
(WCO)SAFE Framework. CBP Response CBP agrees. CBP is working with the WCO to develop an amendment process that will enable the WCO Framework of Standards to adapt to changes in the international security environment. In addition, CBP will seek to make data elements consistent with (or have data elements included in) the WCO Data Model. CBP is concerned with ensuring that, to the maximum extent possible, the data elements and definitions required under the proposed Importer Security Filing regulations are consistent with the data elements and their meaning as currently required of importers under the commercial entry procedures. Comment The Importer Security Filing data elements and definitions should align with the ISO UNTEDE 2005 7372:2005 definitions and the Automated Commercial Environment (ACE)/International Trade Data System
(ITDS)definitions. CBP Response CBP has considered, and will continue to consider, ISO definitions and the ITDS requirements during the development of the Security Filing initiative. As discussed in response to a comment above, CBP is preliminarily concerned with ensuring that, to the maximum extent possible, the data elements and definitions required under the proposed Importer Security Filing regulations are consistent with the data elements and their meaning as currently required of importers under the commercial entry procedures. Comment Where possible the name and address of the actual manufacturer should be required. Where this is not known or the shipment consists of commingled articles, filers should indicate the name and address of the supplier in their security filing. CBP Response CBP agrees. Based on input from the trade, CBP is proposing to require the importer, as defined in these regulations, or his authorized agent, to provide the name and address of either the manufacturer or supplier of the finished goods in the country from which the goods are leaving. Comment The manufacturer identification
(MID)number, as defined in CBP directives, should be accepted in lieu of the manufacturer (or supplier) name and address. CBP Response CBP disagrees. In general, the MID does not include the complete address of the manufacturer. CBP believes that the complete manufacturer's name and address (sometimes supplier in the country from which the goods are leaving in lieu of manufacturer) is a critical piece of information to effectively target high risk cargo. CBP believes that this information is readily available to importers because this is the underlying information necessary for creating the MID which is required for filing entry. The trade already has access to software that electronically converts the manufacturer's full name and address into the MID. Comment CBP should more clearly define the term “shipper” as used in the data definitions. CBP Response “Shipper” is not one of the data elements required under the proposed regulations, nor is it used in the definitions for the required elements. C. Overview; Master Bills/House Bills Under the proposed regulations, an Importer Security Filing is required for each shipment, at the lowest bill of lading level (i.e., at the house bill of lading level, if applicable). Generally speaking, a master bill of lading refers to the bill of lading that is generated by the incoming carrier covering a consolidated shipment. A consolidated shipment would consist of a number of separate shipments that have been received and consolidated into one shipment by a party, such as a freight forwarder or a NVOCC for delivery as a single shipment to the incoming carrier. The consolidated shipment would be covered under the incoming carrier's master bill. However, each of the shipments thus consolidated would be covered by what is referred to as a house bill. It is information from the relevant house bill that CBP is seeking for targeting purposes. D. Public Comments; Master Bills/House Bills Comment When one shipment to one importer of record includes multiple bills of lading, only one security filing should be required. The multiple bills of lading should not be required to be identified at the line item level. CBP Response CBP agrees. Under the proposed rule, one Importer Security Filing can satisfy multiple bills of lading. However, the manufacturer (or supplier) name and address, country of origin, and commodity HTSUS number elements must be linked to one another at the line item level. Comment There should be capability for the Importer Security Filing to be done at the house bill of lading level with no reference to the master bill of lading. CBP Response CBP disagrees with this comment. It is necessary for the filer to reference the master bill of lading number in the Importer Security Filing in order for the house bill and master bill to be linked at a later date. Comment In the case of transshipped goods, the system programming should allow reporting at the house bill of lading level based upon the feeder vessel at time of loading, which can then be married to the arriving/mother vessel through AMS filing by that arriving/mother vessel. CBP Response CBP disagrees. Under the proposed rule, CBP is requiring that the Importer Security Filing be submitted at the lowest bill level, down to the house bill, and is requiring that the bill be the one under which the cargo is brought to the United States. Comment CBP should establish account profiles for importers of repetitive shipments. These accounts could be based on the ACE account example or the BRASS (line release) example at the U.S.-Canada and U.S.-Mexico borders. A repetitive low-security risk importer would then give its account information, together with anything unique/different about the specific shipment, in lieu of the full security filing. CBP Response CBP disagrees. CBP will use the Importer Security Filing to assess the risk of individual shipments. For purposes of this rulemaking, each and every shipment arriving to the United States by vessel would be subject to the Importer Security Filing requirements. As CBP continues to develop ACE, the agency will continue to make enhanced flexibility for the trade a top priority. E. Overview; CBP-approved Electronic Interchange System Under the proposed regulations, importers, as defined in these regulations, or their agents, would be required to transmit the Importer Security Filing via a CBP-approved electronic data interchange system. The current approved electronic data interchange systems for the Importer Security Filing are the Automated Broker Interface
(ABI)and the Vessel Automated Manifest System (AMS). If CBP approves a different or additional electronic data interchange system, CBP will publish notice in the **Federal Register** . F. Public Comments; CBP-approved Electronic Interchange System Comment CBP should delay the implementation of the regulations until they can be implemented through ACE. CBP Response CBP disagrees. Pursuant to Section 203 of the SAFE Port Act, the Secretary of Homeland Security is required to promulgate regulations requiring additional data elements for improved high-risk targeting. After careful consideration, DHS has determined that immediate action is necessary to increase the security of containers entering the United States by vessel by improving CBP's risk assessment capabilities. CBP will take into account systems changes made by the trade to comply with this proposed rulemaking as ACE is developed. Comment Current access requirements to CBP systems need to be changed. CBP must eliminate the requirement that ABI filers have custom house broker licenses or be self-filers. CBP Response Pursuant to 19 CFR 143.1, importers, brokers, and ABI service bureaus are permitted to participate in ABI. In addition, other parties currently access ABI to transmit protests, forms relating to in-bond movements (CBP Form 7512), and applications for FTZ admission (CBP Form 214). CBP is proposing to amend 19 CFR 143.1 to clarify that importers, brokers, and, if they do not participate in “customs business,” ABI service bureaus are permitted to participate in ABI for entry purposes. In addition, upon approval by CBP, any party may gain access to ABI for other purposes, including transmission of protests, forms relating to in-bond movements (CBP Form 7512), and applications for FTZ admission (CBP Form 214). In addition, CBP is proposing to amend 19 CFR 143.1 to permit any Importer Security Filing filer to gain access to ABI for the purpose of transmitting the Importer Security Filing if that party obtains a bond. Comment Flexibility of who may send the Importer Security Filing should be enhanced by allowing other formats and interfaces in addition to ABI and AMS. CBP Response CBP disagrees. As stated above, filing of the data elements through ABI and AMS is not limited to licensed customs brokers or importers filing their own submissions
(ABI)or bonded carriers (AMS). CBP will continue to make enhanced flexibility for the trade a top priority as ACE is developed and is continuing to look at additional electronic interchange systems for transmission of CSMs. Comment CBP should transmit a confirmation or acceptance message confirming that the Importer Security Filing has been successfully filed. The acceptance message is not expected to validate the data transmitted, simply to confirm that it has been received in the required format. In addition, query functionality should be designed into the system to provide the importer of record or its authorized agent visibility as to whether an Importer Security Filing has been made for a specific shipment. At the same time, the system should be designed so that importers have full visibility, meaning they are able to read the actual data elements as filed and also who made the filing. CBP Response CBP agrees in part. CBP will provide, to the filer, electronic acknowledgement that the filer's submission has been received according to ABI and AMS standards. However, ABI and AMS filers will not have the ability to query whether an Importer Security Filing is complete, the actual data elements, or the identity of the party who filed the elements. CBP believes that communication between importers, as defined in these regulations, and their designated agents will be sufficient to inform the importer regarding the completeness and contents of a filing. G. Overview; Authorized Agents CBP is proposing to allow an importer, as defined in these regulations, as a business decision, to designate an authorized agent to file the Importer Security Filing on the importer's behalf. Under the proposed regulations, a party can act as an authorized agent for purposes of filing the Importer Security Filing if that party obtains access to ABI or AMS and obtains a bond. H. Public Comments; Authorized Agents Comment It is unfair to hold the importer liable for data filed by a foreign party, such as a foreign freight forwarder. The foreign filing party may make typographic errors for which the importer may be liable. The importer may not have any method of even checking the advance trade data that has been filed. CBP Response In response to requests from the trade, CBP is proposing to allow an importer, as defined in these regulations, to use an agent of the importer's choosing to submit the Importer Security Filing. CBP is not requiring the use of an agent. The importer is ultimately responsible for the timely, accurate, and complete submission of the Importer Security Filing. Comment Foreign freight forwarders need to be allowed to file the Importer Security Filing. The final rule needs to state that filing the Importer Security Filing does not constitute “customs business.” CBP Response The Importer Security Filing would be a filing for security purposes, not for any of the purposes identified under 19 U.S.C. 1641 or 19 CFR part 111. As such, the transmission of the Importer Security Filing alone would not constitute “customs business.” As discussed below, if an importer chooses to have applicable elements of the Importer Security Filing used for entry purposes, the Importer Security Filing must be self-filed by the importer or filed by a licensed customs broker. I. Public Comments; Requested Exemptions/Exclusions From Importer Security Filing Requirements Comment The security filing process should be created in such a way as to allow the capability to designate that the security filing for a specific type of shipment involves a transaction for which all the required information cannot be provided at time of filing. Examples include, but are not limited to: carnets, direct duty paid (DDP)/direct duty unpaid
(DDU)shipments, consigned goods, returned goods, and samples. CBP Response CBP generally agrees. However, the examples provided by the commenter will not be automatically exempt from submitting the required importer elements. The proposed regulations require the importer, as defined in these regulations, or its authorized agent, to submit the importer elements of the Importer Security Filing. If an importer does not know an element that is required pursuant to the proposed regulations and CBP guidance, the importer must take steps necessary to obtain the information. If an importer believes that a required Importer Security Filing data element does not exist for a non-exempt transaction type, the importer should request a ruling from CBP prior to the time required for the Importer Security Filing. If the filing is for a shipment type that CBP has specifically designated exempt from an element or elements, CBP will allow the filer to designate the filing as one of several “exemption” types, including FROB and IE and T&E in-bond shipments. These “exemptions” are discussed more in-depth below. CBP will publish technical requirements regarding the input of data in ABI and AMS on the CBP Web site. 1. Bulk and Break Bulk Cargo Comment How should bulk and break bulk shipments be handled? CBP Response Under the proposed regulations, importers of bulk cargo are exempt from the proposed importer and carrier requirements for bulk goods when the goods are exempt from the requirement that the carrier file the cargo declaration 24 hours prior to loading. For Importer Security Filing purposes, CBP is proposing to model the treatment of approved break bulk cargo as per the Trade Act regulations in 19 CFR 4.7(b)(4). CBP is proposing to require an Importer Security Filing for break bulk shipments, when the goods are exempt from the requirement that the carrier file the cargo declaration 24 hours prior to loading, 24 hours prior to arrival in the United States. For break bulk shipments, the name and address(es) of the physical location(s) where the goods were made “ship ready” must be provided for the container stuffing location element and the name and address of the party who arranged for the goods to be made “ship ready” must be provided for the consolidator (stuffer) name and address element. 2. Foreign Cargo Remaining on Board, IE and T&E In-bond Shipments, and Instruments of International Traffic Comment Foreign cargo remaining on board (FROB), Immediate Exportation
(IE)and Transportation and Exportation (T&E) in-bond shipments, and instruments of international traffic
(IIT)(e.g., containers, racks, pallets) should be exempt from the Importer Security Filing requirement in the near term. The final regulations should define additional transactions exempt from the Importer Security Filing including types of transactions identified by CBP in consultation with the trade. CBP Response CBP is not proposing to require an Importer Security Filing for IIT. However, CBP is proposing to require an Importer Security Filing for all other shipments arriving in the United States by vessel, including FROB and in-bond shipments, unless specifically exempted under the regulations. Under the proposed regulations, an Importer Security Filing is required for FROB, but because FROB is not destined to be received in the United States, the carrier would be required to submit the following data elements: booking party name and address, foreign port of unlading, place of delivery, ship to name and address, and commodity 6 digit HTSUS number. Under the proposed regulations, an Importer Security Filing is required for IE and T&E in-bond shipments. Because IE and T&E shipments are not destined to remain in the United States, CBP is proposing to require the party taking delivery in the United States to submit the following data elements: booking party name and address, foreign port of unlading, place of delivery, ship to name and address, and commodity 6 digit HTSUS number. CBP is proposing to amend the regulations to require that, if at the time of submission of the Importer Security Filing, the goods are intended to be moved in-bond as an IE or T&E shipment, but later a decision is made to divert the goods, permission to divert the in-bond movement to a port other than the listed port of destination or export or to change the in-bond entry into a consumption entry must be obtained from the port director of the port in which the original in-bond documents were filed. Such permission would only be granted upon receipt by CBP of a complete Importer Security Filing. J. Overview; Updating an Importer Security Filing As discussed above, under the proposed regulations, the party who filed the Importer Security Filing is required to update the Importer Security Filing if, after the filing and before the goods arrive within the limits of a port in the United States, there are changes to the information filed or more accurate information becomes available. K. Public Comments; Withdrawing an Importer Security Filing Comment CBP should establish a procedure for cancellation of an Importer Security Filing for goods not shipped, changes in itineraries, etc. CBP Response CBP agrees. The proposed regulations allow for the withdrawal of an Importer Security Filing when a shipment is no longer intended to arrive within the limits of a port in the United States. L. Overview; Importer Security Filing, Entry, and Application for FTZ Admission 1. Importer Security Filing and Entry Four of the Importer Security Filing elements are identical to elements submitted for entry (CBP Form 3461) and entry summary (CBP Form 7501) purposes. These elements are the importer of record number, consignee number, country of origin, and commodity HTSUS number when provided at the 10 digit level. In an effort to minimize the redundancy of data transmitted to CBP, after further consideration and in response to public comments, CBP is proposing to allow an importer to submit these elements once to be used for both Importer Security Filing and entry/entry summary purposes. If an importer chooses to have these elements used for entry/entry summary purposes, the Importer Security Filing and entry/entry summary must be self-filed by the importer or filed by a licensed customs broker in a single transmission to CBP. In addition, the HTSUS number must be provided at the 10 digit level. Choosing this option does not relieve the requirement to submit all remaining Importer Security Filing elements (including the manufacturer (supplier) name and address) and entry and/or entry summary elements (including the manufacturer identification
(MID)number). Under the proposed rule, an importer can choose to do the following:
(1)Submit the Importer Security Filing and entry and/or entry summary data with no connection between them; or
(2)Submit the entry and/or entry summary data via the same electronic transmission as the Importer Security Filing. If the importer chooses this option, the importer would only be required to submit the 4 elements listed above once to be applied to the Importer Security Filing as well as the entry and/or entry summary. CBP will publish technical information regarding the transmission of entry and Importer Security Filing data in the appropriate guidance documents and on the CBP Web site. 2. Importer Security Filing and Application for FTZ Admission Two of the Importer Security Filing elements are identical to elements submitted for application to admit goods to an FTZ (CBP Form 214). These elements are the country of origin and commodity HTSUS number when provided at the 10 digit level. In an effort to minimize the redundancy of data transmitted to CBP, the proposed regulations allow a filer to submit the Importer Security Filing and CBP Form 214 in the same electronic transmission to CBP and to submit the country of origin and commodity HTSUS number once to be used for both Importer Security Filing and FTZ admission purposes. If the party submitting the Importer Security Filing chooses to have this element used for FTZ admission purposes, the HTSUS number must be provided at the 10 digit level. M. Public Comments; Importer Security Filing, Entry, and Application for FTZ Admission Comment CBP should allow for entry to be made when the Importer Security Filing is submitted. CBP Response CBP agrees. Under the proposed rule, an importer would be able to submit the entry and/or entry summary data via the same electronic transmission as the Importer Security Filing. If an importer chooses to do so, the consolidated submission of both the Importer Security Filing and entry must be filed by the party entitled to make entry pursuant to 19 U.S.C. 1484 on its own behalf or a licensed customs broker. Comment The regulations should allow an importer to submit, in lieu of an Importer Security Filing, CBP Forms 3461, 7501, or 214. In the alternative, the regulations should allow an importer to submit, in lieu of an Importer Security Filing, CBP Forms 3461, 7501, or 214 along with the consolidator (stuffer) name and address and container stuffing location. CBP Response CBP appreciates the suggestions in this comment but disagrees. Importers, as defined in these regulations, or their authorized agents, are responsible for providing the complete Importer Security Filing 24 hours prior to lading. The other options suggested do not satisfy the proposed Importer Security Filing requirements. CBP Forms 3461, 7501, and 214, alone or in combination with the consolidator (stuffer) name and address and container stuffing location, do not contain the required elements. However, as discussed above, CBP is proposing to allow an importer to submit the entry and/or entry summary data via the same electronic transmission as the Importer Security Filing. In addition, CBP is proposing to allow applicants for FTZ admission to submit the country of origin and HTSUS number (when provided at the 10 digit level) once for both Importer Security Filing and FTZ admission purposes. Comment The advance trade data required represents a redundancy of information. CBP Response As discussed above, in an effort to reduce the redundancy of information presented to CBP, CBP is proposing to allow an importer to submit certain elements once to be used for both Importer Security Filing and entry purposes and to allow applicants for FTZ admission to submit the country of origin and HTSUS number once to be used for both Importer Security Filing and FTZ admission purposes. To the extent feasible, CBP will continue to explore ways and methods to harmonize and synchronize information collection requirements. Comment CBP should extend the five-day minimum entry and selectivity time frame for entry release and FTZ admission purposes to after confirmed departure of the vessel from its last foreign port to the United States. CBP Response CBP disagrees. CBP does not propose to amend, at this time, the regulations generally governing entry release and FTZ admission of imported goods. V. General Public Comments A. Economic Analysis; Cost, Benefit, and Feasibility Study Comment Regulations compelling the advance submission of Importer Security Filing elements would impose substantial reprogramming and process redesign costs on importers. Furthermore, the compliance costs for an importer importing multiple products per container would be substantial. CBP should complete a cost/benefit and feasibility study and report, as recommended by the SAFE Port Act, before the final rule is published. CBP Response CBP has conducted a cost, benefit, and feasibility analysis as required under the SAFE Port Act. This analysis meets the requirements of Executive Order 12866 and Office of Management and Budget
(OMB)Circular A-4 and has been reviewed by OMB. A summary of this analysis is presented below, and the complete analysis can be found on the CBP Web site and the public docket for this rulemaking ( *see www.regulations.gov* ). CBP is seeking comments on this analysis. Comment CBP has not had sufficient discussions with the trade community, particularly in view of the enormous impact that the proposal will have on the United States economy. CBP Response CBP disagrees. CBP has engaged and will continue to engage the trade through the rulemaking process and through consultation as required by Section 203 of the SAFE Port Act (incorporating the requirements of Section 343(a) of the Trade Act of 2002). CBP has met with groups representing the trade while developing the proposal, including: the COAC, the American Association of Exporters and Importers (AAEI), the American Association of Port Authorities (AAPA), the Joint Industry Group (JIG), the National Association of Manufacturers (NAM), the National Customs Brokers and Forwarders Association of America (NCBFAA), the International Compliance Professionals Association (ICPA), the Retail Industry Leaders Association (RILA), the TSN, the U.S. Chamber of Commerce, and the World Shipping Council (WSC). CBP also posted a “strawman” proposal on the CBP Web site along with a request for comments from the trade. Comment CBP has not provided any indication that it is in compliance with the requirements of section 343 of the Trade Act of 2002, including the requirement that the agency: “[account] for the extent to which the technology necessary for parties to transmit, and for CBP to receive and analyze, data in a timely fashion, is available.” CBP Response CBP is modifying existing systems to accommodate the proposed requirements. CBP has included the impacts to the trade to modify its processes as part of the cost, benefit, and feasibility study. B. Protection of Confidential Information Presented to CBP Comment CBP should keep all the security filing data confidential from disclosure. The data should be held as not eligible for disclosure under 5 U.S.C. 552 *et seq.* or any other statute or regulation. For example, many U.S. firms do not want their federal tax identification number made available to others. The importer may not want the seller to know who the ultimate “deliver to” party is. The importer may fear back solicitation by the seller/exporter. In addition, the seller may not want the buyer to know the name and address of the actual manufacturer. In lieu of the importer of record and/or consignee number, the filer should be able to indicate the name and address of the importer of record and ultimate consignee. American companies remain concerned about the misuse of the importer of record number by parties to whom such information is generally not provided for business confidential and other similar reasons. CBP Response CBP agrees that we should keep Importer Security Filing, vessel stow plan, and container status message information confidential, except to the extent required by law. Pursuant to the authority under both section 343(a) of the Trade Act (19 U.S.C. 2071 note) and section 203(d) of the SAFE Port Act (6 U.S.C. 943(d)), CBP is proposing to amend 19 CFR 103.31a to include the Importer Security Filing elements (including the importer of record number), vessel stow plan information, and container status message information to the list of information that is per se exempt from disclosure under 19 CFR 103.12(d), unless CBP receives a specific request for such records pursuant to 19 CFR 103.5, and the owner of the information expressly agrees in writing to its release. While the importer, as defined in these regulations, is proposed to be responsible for providing the Importer Security Filing 24 hours prior to lading, CBP is proposing to allow the importer to use a licensed customs broker, in addition to other parties, to submit the Importer Security Filing. CBP recognizes the concerns of parties in these instances about sharing their confidential business information. If an importer with confidential business interests chooses to use an agent to file, the importer may choose to execute confidentiality agreements to protect those interests. Pursuant to 19 CFR 111.24, customs brokers are required to keep information pertaining to the business of clients serviced by the broker confidential. C. Test of Concept and Phase-in Enforcement Comment There should be a test of the concept and the mechanics of the advance data elements filing with a volunteer group before the concept moves to the phase-in period. The test should involve the proposed data set and should include the approved interfaces (such as ABI and AMS) for initial programming. In order for the test results to have the greatest validity, CBP should seek participation from parties in the supply chain who ship from varying parts of the world and include small, medium and large companies as well as those who ship using forwarders and those who do not. An invitation to participate in the testing should be published in the **Federal Register** and on the CBP Web site. CBP Response As part of CBP's pre-existing Advance Trade Data Initiative (ATDI), CBP is working with a wide variety of volunteers from the world trade community to test the trade's ability to provide data, including some elements of the Importer Security Filing, to CBP. The ATDI test results will assist CBP in understanding the various formats that are being used in the international trade community to share supply chain information. Under the foregoing circumstances, we do not believe that a new or separate test is needed to evaluate the practical requirements of this rule. Comment Once the final regulations are effective, CBP should adopt a phase-in period, during which CBP should publish FAQs addressing issues associated with the regulations and specific guidelines on how the phase-in will work and what rules will apply. CBP should include outreach to other countries. CBP Response CBP agrees. Regardless of when the regulations on this subject go into effect, CBP will adopt a phase-in enforcement process similar to that which was utilized when the 24-Hour Rule and Trade Act regulations were implemented. Depending on the circumstances, CBP may take an “informed compliance” approach following the effective date of this rule. Through the phase-in enforcement process, CBP will work with the trade to ensure informed compliance. CBP will continue to update the trade on issues associated with the proposed regulations in the form of FAQs, postings on the CBP website, other outreach to the trade, and consultation with foreign countries. Comment During any test period or phase-in period, CBP should consider requiring fewer than all of the Importer Security Filing elements and carrier elements. CBP Response CBP disagrees. Through discussions with the trade and through the development of ATDI, CBP has found that the elements required under the proposed regulations are generally available. Moreover, CBP does not agree that a phase-in period requiring fewer than all of the required Importer Security Filing elements and carrier elements would fulfill the goal of enhancing the government's risk assessment capabilities. D. Other General Comments Comment Some importers may not be aware of the Importer Security Filing requirement, especially those traveling overseas who happen to buy something to ship. CBP Response Under the proposed regulations, the importer, as defined in these regulations, is ultimately responsible for the timely, accurate, and complete submission of the Importer Security Filing. CBP will conduct outreach to the public and the trade, including postings to the CBP website to promote widespread knowledge of this requirement during the phase-in enforcement period following the final rule. Comment Shipments may be diverted to Canada or Mexico to avoid the proposed requirements. CBP Response CBP disagrees. This proposal is focused on ocean cargo primarily pursuant to the requirements under the SAFE Port Act. As such, this proposal is an incremental step toward meeting the goal of securing shipments to the United States. CBP does not expect shipments to be diverted to Canada or Mexico to avoid the proposed requirements. CBP will continue to evaluate the effectiveness of this rule and will consider additional steps, including expanding the advance data requirements for other transportation modes. Comment If containers cannot be laden aboard the vessel, based on existing service contracts, companies quite possibly will face delays while they await another vessel for the specified contract service. These types of delays would create additional security risks. CBP Response With regard to the concern that the proposed rule may adversely affect the efficiency of international shipping operations, CBP recognizes this legitimate concern and has taken steps to address it in the development of this rulemaking. First, it is important to note that under the proposed regulations, it is the information about the contents of a shipping container, not the container itself, that must be presented to CBP 24 hours prior to lading at a foreign seaport. Under this proposed rule, so long as the Importer Security Filing is provided to CBP 24 hours in advance of lading, the container itself may be brought to the seaport at a later time. Second, the development of this proposal has been designed to take advantage of the existing shipping cycle. In most foreign seaports, containers destined to the United States are often stored at terminals for several hours or several days before lading. This provides ample opportunity for CBP and its foreign CSI partners to identify and screen potentially high-risk containers within the normal shipping cycle and without causing any unnecessary delays. Third, by screening potentially high-risk containers at foreign seaports during the normal shipping cycle, CBP will use the additional advance information to further expedite low risk shipments. This should not only reduce delays associated with targeting and screening containers for security purposes upon arrival in the United States; it should also add greater predictability to the movement of containers through domestic seaports. CBP recognizes that some changes to business practices may be required in order to transmit the data required under this proposed rule. For example, although much, if not all, of the data required by CBP is available prior to lading, CBP recognizes that businesses currently may not be configured to collect and transmit such information in compliance with the rule. This is one of the reasons that CBP is proposing to phase in enforcement of the rule—to strike an appropriate balance between the needs of business and the need of the government to address the immediate threat that international terrorist organizations pose to the United States and the global economy. Comment CBP should ensure that the information collected pursuant to the proposed regulations will be used exclusively for ensuring transportation safety and security, and not for any other commercial enforcement purposes. CBP Response CBP agrees. If the proposed regulations are adopted as final, pursuant to section 343(a)(3)(F) of the Trade Act of 2002, as amended by the MTSA, CBP will use the data required by this rule “exclusively for ensuring cargo safety and security and preventing smuggling” and will not use the data for “determining merchandise entry or for any other commercial enforcement purposes.” VI. Amendments to Bond Conditions In order to provide a clear enforcement mechanism for the proposed requirements, CBP is proposing to amend regulations covering certain bond conditions to include agreements to pay liquidated damages for violations of the new proposed regulations. CBP is also proposing to amend the bond conditions for violations of the advance cargo information requirements under the Trade Act regulations in order to make the liquidated damages amounts for those violations consistent with the liquidated damages amounts for violations of the proposed requirements. As discussed above, upon implementation of the final rule, CBP will adopt a phase-in enforcement process for the new requirements similar to that which was utilized when the 24-Hour Rule and Trade Act regulations were implemented. A. Bond Conditions Related to the Proposed Importer Security Filing, Vessel Stow Plan, and Container Status Message Requirements The proposed regulations would add a new condition to those provisions in 19 CFR 113.62 required to be included in a basic importation and entry bond. Specifically, CBP is proposing to amend 19 CFR 113.62 to include a condition whereby the principal agrees to comply with the proposed Importer Security Filing requirements. If the principal fails to comply with the proposed Importer Security Filing requirements, the principal and surety (jointly and severally) would pay liquidated damages equal to the value of the merchandise involved in the default. The proposed regulations would also amend those provisions in 19 CFR 113.64 required to be included in an international carrier bond. Specifically, CBP is proposing to amend 19 CFR 113.64 to include three new conditions. First, a new condition would be added whereby the principal agrees to comply with the proposed Importer Security Filing requirements if the principal elects to provide the Importer Security Filing on behalf of an importer, as defined in these regulations. If the principal fails to comply with the proposed Importer Security Filing requirements, the principal and surety (jointly and severally) would agree to pay liquidated damages equal to the value of the merchandise involved in the default. Second, a new condition would be added whereby the principal agrees to comply with the proposed vessel stow plan requirements. If the principal fails to comply with the proposed vessel stow plan requirements, the principal and surety (jointly and severally) would agree to pay liquidated damages of $50,000 for each vessel arrival. Third, a new condition would be added whereby the principal agrees to comply with the proposed container status message requirements. If the principal fails to timely provide CSMs for all events that occur relating to a container, for which the carrier creates or collects CSMs in its equipment tracking system, the principal and surety (jointly and severally) would pay liquidated damages of $5,000 for each violation, to a maximum of $100,000 per vessel arrival. Lastly, the proposed regulations would amend those provisions in 19 CFR 113.73 required to be included in a foreign trade zone operator bond. Specifically, CBP is proposing to amend 19 CFR 113.73 to include a condition whereby the principal agrees to comply with the Importer Security Filing requirements. If the principal fails to comply with the proposed Importer Security Filing requirements, the principal and surety (jointly and severally) would pay liquidated damages equal to the value of the merchandise involved in the default. B. Bond Conditions Related to the Trade Act Regulations The proposed regulations would also amend the liquidated damages amounts for violations of the advance cargo information requirements under 19 CFR 4.7 and 4.7a in order to make those amounts consistent with the liquidated damages amounts for violations of the proposed container status message requirements ($5,000 for each violation) and more in line with the liquidated damages for violations of the proposed Importer Security Filing requirements. Accordingly, CBP is proposing to amend 19 CFR 4.7, 4.7a, and 113.64 to include liquidated damages amounts of $5,000 for each violation of the advance cargo information requirements, to a maximum of $100,000 per conveyance arrival. VIII. Regulatory Analyses A. Executive Order 12866 This rule is considered to be an economically significant regulatory action under Executive Order 12866 because it may result in the expenditure of over $100 million in any one year. Accordingly, this proposed rule has been reviewed by the Office of Management and Budget (OMB). The following summary presents the costs and benefits of the proposed rule plus a range of alternatives considered. (The “Regulatory Assessment” can be found in the docket for this rulemaking: *http://www.regulations.gov;* see also *http://www.cbp.gov* ). In this analysis, we first estimate current and future baseline conditions in the absence of the proposed rule using 2005 shipping data. In this baseline analysis, we characterize and estimate the number of unique shipments, carriers, and vessel-trips potentially affected by the proposed rule. We then identify the incremental measures that importers and carriers will take to meet the requirements of the proposed rule and estimate the costs of these activities, as well as the cost to CBP of implementing the rule. Next, relying on published literature, we identify hypothetical scenarios describing representative terrorist attacks potentially prevented by this regulation and estimate the economic costs (i.e., the consequences) of these events. We compare these consequences to the costs of the proposed regulation and estimate the reduction in the probability of a successful terrorist attack resulting from the proposed regulation that would be required for the benefits of the regulation to equal the costs of the regulation. Finally, we consider the distribution of costs to sensitive subgroups such as small entities and the energy sector. As of the projected effective date of the regulation, we estimate that approximately 11 million import shipments conveyed by 1,200 different carrier companies operating 50,000 unique voyages or vessel-trips to the United States will be subject to the proposed rule. Table 1 summarizes the results of the regulatory analysis. We consider and evaluate the following four alternatives: Alternative 1 (the chosen alternative): Importer Security Filings and Additional Carrier Requirements are required. Bulk cargo is exempt from the Importer Security Filing requirements; Alternative 2: Importer Security Filings and Additional Carrier Requirements are required. Bulk cargo is not exempt from the Importer Security Filing requirements; Alternative 3: Only Importer Security Filings are required. Bulk cargo is exempt from the Importer Security Filing requirements; and, Alternative 4: Only the Additional Carrier Requirements are required. Table 1.—Summary of Findings Discount rate Annualized costs (2008-2017, $2007) Terrorist attack scenario Percent reduction in baseline risk that must be achieved for benefits to equal costs Number of these events that must be avoided for benefits to equal costs Comment Alternative 1 (chosen alternative): Importer Security Filings and Additional Carrier Requirements, bulk cargo exempt 3% $390 million to $620 million Actual West Coast Port Shutdown (12-days) 25.6 to 41.0 One event in 2 to 4 years Preferred Alternative: Most favorable combination of cost and stringency. Hypothetical Nuclear Attack 0.1 to 0.2 One event in 700 to 1,100 years Hypothetical Biological Attack 0.9 to 1.4 One event in 70 to 100 years 7% $390 million to $630 million Actual West Coast Port Shutdown (12-days) 26.1 to 42.0 One event in 2 to 4 years Hypothetical Nuclear Attack 0.1 to 0.2 One event in 600 to 1,000 years Hypothetical Biological Attack 0.9 to 1.4 One event in 70 to 100 years Alternative 2: Importer Security Filings and Additional Carrier Requirements, bulk cargo not exempt 3% $390 million to $620 million Actual West Coast Port Shutdown (12-days) 25.7 to 41.3 One event in 2 to 4 years More stringent than Alternative 1, but limited expected additional benefit for increased cost. Hypothetical Nuclear Attack 0.1 to 0.2 One event in 700 to 1,100 years Hypothetical Biological Attack 0.9 to 1.4 One event in 70 to 100 years 7% $400 million to $640 million Actual West Coast Port Shutdown (12-days) 26.3 to 42.3 One event in 2 to 4 years Hypothetical Nuclear Attack 0.1 to 0.2 One event in 600 to 1,000 years Hypothetical Biological Attack 0.9 to 1.5 One event in 70 to 100 years Alternative 3: Importer Security Filings only, bulk cargo exempt 3% $380 million to $610 million Actual West Coast Port Shutdown (12-days) 25.5 to 40.3 One event in 3 to 4 years Similar cost to Alternative 1 with decreased effectiveness. Importer Security Filings and Additional Carrier Requirements are not working in tandem. Hypothetical Nuclear Attack 0.1 One event in 700 to 1,100 years Hypothetical Biological Attack 0.9 to 1.4 One event in 70 to 100 years 7% $390 million to $620 million Actual West Coast Port Shutdown (12-days) 26.1 to 41.2 One event in 2 to 4 years Hypothetical Nuclear Attack 0.1 to 0.2 One event in 700 to 1,000 years Hypothetical Biological Attack 0.9 to 1.4 One event in 70 to 100 years Alternative 4: Additional Carrier Requirements only 3% $3 million to $12 million Actual West Coast Port Shutdown (12-days) 0.2 to 0.8 One event in 100 to 600 years Least cost, but also least effective alternative. Does not meet the statutory requirements of Section 203 of the SAFE Port Act nor provide data on shipment history. Importer Security Filings and Additional Carrier Requirements are not working in tandem. Hypothetical Nuclear Attack <0.1 One event in 33,000 to 160,000 years Hypothetical Biological Attack <0.1 One event in 4,000 to 18,000 years 7% $3 million to $13 million Actual West Coast Port Shutdown (12-days) 0.2 to 0.9 One event in 100 to 600 years Hypothetical Nuclear Attack <0.1 One event in 31,000 to 150,000 years Hypothetical Biological Attack <0.1 One event in 3,000 to 16,000 years The annualized cost range presented in each cell results from varying assumptions about the estimated security filing transaction costs or fees charged to the importers by the filing parties, the potential for supply chain delays, and the estimated costs to transmit Vessel Stow Plans and CSMs to CBP. We estimate costs separately for the Importer Security Filing requirements (up to 10 importer data elements) and the additional carrier requirements (Vessel Stow Plans and CSMs). The estimated costs for the Importer Security Filing requirements are developed on a per-shipment basis and applied to the estimated number of shipments annually for a period of 10 years (2008 through 2017). The 10-year calculation likely reflects the maximum time frame that we could reasonably project trends in international shipping. In addition, we estimate costs associated with potential delays in the supply chain that may result from having to meet the proposed filing deadline of 24 hours prior to lading at the foreign port. The estimated costs for the additional carrier requirements are developed on per-carrier and per vessel-trip bases and applied to the estimated number of carriers and vessel-trips in each year of the 10-year analysis period. To estimate the full range of the total estimated costs for complying with the proposed rule, for the four alternatives we develop a high cost scenario and a low cost scenario by assuming certain values for the key cost factors. Annualized costs for Alternatives 1 through 3 range from $380 million to $640 million, depending on the discount rate applied, the cost scenario, whether or not bulk shipments are exempt, and whether or not the Additional Carrier Requirements are required. The annualized costs for Alternative 4 are substantially lower, ranging from $3 million to $13 million. However, this alternative is the least stringent and effective option, because it only collects data on the conveyance of the shipment. Further, it does not meet the statutory requirements of Section 203 of the SAFE Port Act. Because costs are likely to exceed $100 million annually, the proposed regulation represents an economically significant regulatory action as defined by E.O. 12866. Ideally, the quantification and monetization of the benefits of this regulation would involve estimating the current level of risk of a successful terrorist attack, absent this regulation, and the incremental reduction in risk resulting from implementation of the proposed regulation. We would then multiply the change by an estimate of the value individuals place on such a risk reduction to produce a monetary estimate of direct benefits. However, existing data limitations and a lack of complete understanding of the true risks posed by terrorists prevent us from establishing the incremental risk reduction attributable to this rule. As a result, we undertake a “break-even” analysis to inform decision-makers of the necessary incremental change in the probability of such an event occurring that would result in direct benefits equal to the costs of the proposed rule. In the break-even analysis, we identify three types of terrorist attack scenarios that may be prevented by the regulation and obtain cost estimates of the consequences of these events from published literature. The analysis compares the annualized costs of the regulation to the avoided costs of each event to estimate the reduction in the probability of such events (also presented in terms of “odds,” e.g., a 0.25 reduction in the probability of an event occurring in a single year implies that one additional event must be avoided in a four-year period) that must be achieved for the benefits of the regulation to equal the costs. The reduction in the odds of terrorist events are rough estimates that do not take into account changes in risk through time or factors that may affect willingness to pay to avoid the consequences of these events, such as changes in income. For each attack scenario, Table 1 indicates what would need to occur for the costs of each alternative to equal its benefits, assuming the alternative only reduces the risk of a single event of that type of attack. As summarized in Table 1, the break-even risk reductions for Alternative 4 are significantly lower than the other three alternatives, reflecting the significantly lower costs associated with requiring only the Additional Carrier Requirements. The break-even results for the remaining three alternatives are similar because the costs of these options are not very different. For the most severe attack scenario (a hypothetical nuclear attack in a major city), the proposed regulation must result in the avoidance of one such event in a time period of 600 to 1,100 years for the benefits of the regulation to equal the costs. For the least severe of the three hypothetical attack scenarios (costs of the actual 12-day West Coast port shutdown), the estimated costs of a single incident are closer in value to the annualized costs of the proposed regulation. As a result, if the rule only reduced the risk of a single attack on a port, a shutdown would need to be avoided once in a period of two to four years for the benefits of the rule to equal costs. The results expressed as percent reductions in baseline risk also show higher reductions needed if port attacks only are mitigated (about 26 to 42 percent) and lesser reductions associated with prevention of the more catastrophic events. We note that this analysis is highly sensitive to the chosen incident scenarios. Total present value costs of the proposed regulation are presented in Table 2, based on the cost projections we estimate for the 10-year analysis period, 2008 through 2017. Applying a social discount rate of three percent, the total costs of Alternatives 1, 2, and 3 are projected to range from $3.3 billion to $5.3 billion over 10 years depending on the cost scenario, whether or not bulk shipments are exempt, and whether or not Additional Carrier Requirements are required. If a social discount rate of seven percent is applied instead, total costs range from $2.7 billion to $4.5 billion. Under Alternative 2, which requires Importer Security Filings for both non-bulk cargo and bulk cargo, costs are not significantly higher because the number of bulk shipments is relatively small compared to the number of non-bulk shipments. Under Alternative 3, costs are not significantly lower because the estimated costs for the Additional Carrier Requirements are relatively small compared to the estimated costs for the Importer Security Filings. The estimated costs for Alternative 4 are significantly lower than the other three alternatives, ranging from $19 million to $104 million. Table 2.—Total Present Value Costs, 2008-2017 [$2007] Discount rate Present value costs Alternative 1 (chosen alternative): Importer Security Filings and Additional Carrier Requirements, bulk cargo exempt 3% $3.3 billion to $5.3 billion 7% $2.8 billion to $4.4 billion Alternative 2: Importer Security Filings and Additional Carrier Requirements, bulk cargo not exempt 3% $3.3 billion to $5.3 billion 7% $2.8 billion to $4.5 billion Alternative 3: Importer Security Filings only, bulk cargo exempt 3% $3.3 billion to $5.2 billion 7% $2.7 billion to $4.4 billion Alternative 4: Additional Carrier Requirements only 3% $0.02 billion to $0.1 billion 7% $0.02 billion to $0.1 billion Again, the range presented in each cell results from varying assumptions about the estimated security filing transaction costs or fees charged to the importers by the filing parties, the potential for supply chain delays, and the estimated costs to transmit Vessel Stow Plans and CSMs to CBP. Annual undiscounted costs of the regulation are presented in Table 3. Table 3.—Annual Undiscounted Costs by Year, 2008-2017 [$2007, in millions] Year Alternative 1 (chosen alternative): Importer security filings and additional carrier requirements, bulk cargo exempt Alternative 2: Importer security filings and additional carrier requirements, bulk cargo not exempt Alternative 3: Importer security filings only, bulk cargo exempt Alternative 4: Additional carrier requirements only 2008 $300 to $520 $300 to $520 $290 to $490 $1 to $30 2009 310 to 500 310 to 500 310 to 490 1 to 7 2010 330 to 520 330 to 530 330 to 520 1 to 7 2011 340 to 550 350 to 550 340 to 540 1 to 7 2012 360 to 580 370 to 580 360 to 570 1 to 8 2013 380 to 610 390 to 610 380 to 600 1 to 8 2014 400 to 640 410 to 650 400 to 630 1 to 8 2015 420 to 680 430 to 680 420 to 670 1 to 8 2016 450 to 710 450 to 710 450 to 700 1 to 8 2017 470 to 750 470 to 750 470 to 740 1 to 8 As shown in Table 3, the annual discounted costs increase from year-to-year over the 10-year analysis period. This increase reflects our projected annual increases in the number of shipments, value of shipments, and vessel-trips into the United States potentially affected by the proposed rule. The results indicate that Alternative 1 provides the most favorable combination of cost and stringency. While Alternative 2 might be considered more stringent because it does not exempt bulk cargo from the Importer Security Filing requirements, the impact of this is expected to be slight, because the number of bulk shipments is relatively small compared to the number of non-bulk shipments. Alternative 3 is expected to have costs similar to Alternative 1, but will be less stringent because it only requires Importer Security Filings and does not include data that verify the information on the cargo manifest and identify and track the movement, location, and status of cargo (and in particular, containerized cargo) from the time its transport is booked until its arrival in the United States. Without the Additional Carrier Requirements, CBP will not be able to assess the specific risks associated with the many individual movements and transfers involved in shipping cargo to the United States. Thus, an important element of CBP's layered, risk-based approach to cargo security would, consequently, be omitted. Alternatives 3 and 4 are not chosen, in part, because it is CBP's judgment that neither of these options will be as effective as the selected option. Specifically, the Importer Security Filing requirements and the Additional Carrier Requirements work in tandem. The Additional Carrier Requirements focus on the conveyance of the goods and are distinct from the Importer Security Filing elements, which are focused on the merchandise and the parties involved in the acquisition process. Specifically, Vessel Stow Plans will assist CBP in validating other advanced cargo information submissions by allowing CBP to, among other things, better detect unmanifested containers without relying on physical verification methods that are manpower intensive and costly. CSMs will provide CBP with additional transparency into the custodial environment through which inter-modal containers are handled and transported before arrival in the United States. Because CSMs are created independently of the manifest, CBP can utilize them to corroborate other advanced data elements, including Importer Security Filings and those elements related to container and conveyance origin. This corroboration with other advanced data messages, including Importer Security Filings, and an enhanced view into the international supply chain will contribute to the security of the United States and the international supply chain through which containers and imported cargo are shipped to U.S. ports. Based on this analysis of alternatives, CBP has determined that Alternative 1 provides the most favorable balance between security outcomes and impacts to maritime transportation. As summarized in Table 4, the incremental costs of this regulation, on a per shipment basis, is a very small fraction of the value of a shipment. The relatively high cost of the rule over 10 years is driven by the large volume of shipments, not high per-transaction costs. Shipment data indicate that the median value of a shipment of goods imported into the United States is approximately $37,000. As shown in Table 4, the increase in costs of imported shipments will range from $20 to $38 per shipment, depending on the discount rate applied, the cost scenario, and whether or not bulk shipments are exempt. The added costs of this regulation are estimated to be only 0.05 percent to 0.10 percent of the median value of $37,000 per shipment. CBP welcomes comments on these conclusions and the regulatory alternatives considered. Table 4.—Costs per Shipment, Median Value of Shipment, Vessel-trip, and Carrier [$2007] 3% discount rate 7% discount rate Importer Security Filing Costs: Alternatives 1 and 3 (bulk cargo exempt) Total Present Value Cost $3.3 billion to $5.2 billion $2.7 billion to $4.4 billion Number of shipments (10-year total) 137 million 137 million Equivalent per shipment cost $24 to $38 $20 to $32 Median value per shipment $36,900 $36,900 Cost per median value 0.06 to 0.10 percent 0.05 to 0.09 percent Importer Security Filing costs: Alternative 2 (bulk cargo not exempt) Total Present Value Cost $3.3 billion to $5.2 billion $2.8 billion to $4.4 billion Number of shipments (10-year total) 138 million 138 million Equivalent per shipment cost $24 to $38 $20 to $32 Median value per shipment $37,200 $37,200 Cost per median value 0.06 to 0.10 percent 0.05 to 0.09 percent Vessel Stow Plan Costs: Alternatives 1, 2, and 4 Total present value cost $6 million to $35 million $5 million to $30 million Number of non-bulk vessel-trips, small and large carriers (10-year total) 414,000 414,000 Equivalent per vessel-trip cost $14 to $84 $12 to $73 Container Status Message Costs: Alternatives 1, 2, and 4 Total present value cost $0.3 million to $54 million $0.3 million to $49 million Number of container carriers, large 74 74 Equivalent per carrier cost $4,000 to $730,000 $4,000 to $660,000 The proposed regulation may increase the time shipments are in transit, particularly for shipments consolidated in containers. For such shipments, the supply chain is generally more complex and the importer has less control of the flow of goods and associated security filing information. Foreign cargo consolidators may be consolidating multiple shipments from one or more shippers in a container destined for one or more buyers or consignees. In order to ensure that the security filing data is provided by the shippers to the importers (or their designated agents) and is then transmitted to and accepted by CBP in advance of the 24-hour deadline, consolidators may advance their cut-off times for receipt of shipments and associated security filing data. These advanced cut-off times would help prevent a consolidator or carrier from having to unpack or unload a container in the event the security filing for one of the shipments contained in the container is inadequate or not accepted by CBP. For example, consolidators may require shippers to submit, transmit, or obtain CBP approval of their security filing data before their shipments are stuffed in the container, before the container is sealed, or before the container is delivered to the port for lading. In such cases, importers would likely have to increase the times they hold their goods as inventory and thus incur additional inventory carrying costs to sufficiently meet these advanced cut-off times imposed by their foreign consolidators. The high end of the cost ranges presented in Table 4 assumes an initial supply chain delay of 1 day (24 hours) for the first year of implementation
(2008)and a delay of 12 hours for years 2 through 10 (2009-2017). B. Regulatory Flexibility Act In response to the requirements of the Regulatory Flexibility Act
(RFA)of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) and Executive Order 13272, entitled “Proper Consideration of Small Entities in Agency Rulemaking,” Federal agencies must consider the potential distributional impact of rules on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. Because the proposed rule affects all importers and carriers bringing goods to the United States, it likely affects a substantial number of small entities in each industry conducting these activities. However, due to data limitations, we cannot determine if these effects will be significant on a per-entity basis. Therefore, at this time, CBP cannot certify that the proposed rule will not have a significant impact on a substantial number of small entities. CBP seeks comments on this conclusion. (The detailed Initial Regulatory Flexibility Act analysis is contained in the “Regulatory Assessment,” which can be found in the docket for this rulemaking: *http://www.regulations.gov;* see also *http://www.cbp.gov* ). A description of the reasons why action by the agency is being considered: the description of the proposed action is contained above. A succinct statement of the objectives of, and legal basis for, the proposed rule: Section 203(b) of the Security and Accountability for Every Port Act (SAFE Port Act) of 2006 states that the Secretary of Homeland Security “shall require the electronic transmission to the Department of additional data elements for improved high-risk targeting, including appropriate elements of entry data * * * to be provided as advanced information with respect to cargo destined for importation into the United States prior to loading of such cargo on vessels at foreign ports.” The information required is that which is reasonably necessary to enable high-risk shipments to be identified so as to prevent smuggling and ensure cargo safety and security pursuant to the laws enforced and administered by CBP. In addition, section 343(a) of the Trade Act of 2002 states that the Secretary of Homeland Security “shall promulgate regulations providing for the transmission * * * of information pertaining to cargo destined for importation into the United States * * *.” A description of, and, where feasible, an estimate of the number of small entities to which the proposed rule will apply: The proposed rule applies to all entities importing containerized, break-bulk, or Ro-Ro shipments into the United States. Under the chosen alternative, bulk shipments are exempt from the proposed rule. The proposed regulation also applies to VOCCs transporting shipments via sea to the United States. The majority of the affected entities are likely to be small. A description of the projected reporting, recordkeeping and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record: The requirements of the proposed rule are expected to be submitted electronically by importers or VOCCs (or an agent representing either). An identification, to the extent practicable, of all relevant federal rules which may duplicate, overlap or conflict with the proposed rule: The data elements required to be submitted in this proposed rule are, largely, already required under existing Federal rules ( *e.g.* , the 24-Hour Advance Vessel Manifest Rule, customs entry requirements). The main impact of this proposed rule, in addition to increasing the number of required data elements, is to change the timeframe prior to departure from the foreign port and prior to arrival at the U.S. port in which submittal is required. An establishment of any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and that minimize any significant economic impact of the proposed rule on small entities: CBP does not identify any significant alternatives to the proposed rule that specifically address small entities. Alternative 1, under which bulk cargo is exempt, is the chosen alternative. C. Unfunded Mandates Reform Act Title II of the Unfunded Mandate Reform Act of 1995
(UMRA)requires agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. The proposed regulation is exempt from these requirements under 2 U.S.C. 1503 (Exclusions) which states that UMRA “shall not apply to any provision in a bill, joint resolution, amendment, motion, or conference report before Congress and any provision in a proposed or final Federal regulation that is necessary for the national security or the ratification or implementation of international treaty obligations.” D. Paperwork Reduction Act There are three proposed collections of information in this document. The proposed collections are contained in 19 CFR 4.7c, 4.7d, and 149.2. This information would be used by CBP to further improve the ability of CBP to identify high-risk shipments so as to prevent smuggling and ensure cargo safety and security. The likely respondents and/or recordkeepers are individuals and businesses. Under § 4.7c, a vessel stow plan would be required from a carrier when that carrier causes a vessel to arrive in the United States. Vessel stow plans are used to transmit information about cargo loaded aboard a vessel. Under § 4.7d, container status messages would be required from an incoming carrier for all containers laden with cargo destined to be transported by that carrier and to arrive within the limits of a port in the United States by vessel. Container status messages serve to facilitate the intermodal handling of containers by streamlining the information exchange between trading partners involved in administration, commerce, and transport of containerized shipments. The messages can also be used to report terminal container movements (e.g., loading and discharging the vessel) and to report the change in status of containers (e.g., empty or full). Container status messages would provide CBP with additional transparency into the custodial environment through which inter-modal containers are handled and transported before arrival and after unlading in the U.S. This enhanced view (in corroboration with other advance data messages) into the international supply chain would contribute to the security of the United States and in the international supply chain through which containers and import cargos reach ports in the United States. Under § 149.2, an Importer Security Filing, consisting of security elements of entry data for cargo destined to the United States, would be required from the importer, as defined in these regulations. For foreign cargo remaining on board (FROB), the importer would be construed as the carrier. For immediate exportation
(IE)and transportation and exportation (T&E) in-bond shipments, and goods to be delivered to a foreign trade zone (FTZ), the importer would be construed as the party filing the IE, T&E, or FTZ documentation with CBP. The collection of information encompassed within this proposed rule has been submitted to the Office of Management and Budget
(OMB)for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). An agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB. Estimated Burden for Carrier Requirements Under § 4.7c *Estimated annual reporting and/or recordkeeping burden:* 59,542 hours. *Estimated average annual burden per respondent/recordkeeper:* 1 hour per Vessel Stow Plan per carrier. *Estimated number of respondents and/or recordkeepers:* 958. *Estimated annual frequency of responses:* dependent on number of vessel arrivals in the United States. Estimated Burden for Carrier Requirements Under § 4.7d *Estimated annual reporting and/or recordkeeping burden:* 6,753 hours. *Estimated average annual burden per respondent/recordkeeper:* 15 minutes per day per carrier. *Estimated number of respondents and/or recordkeepers:* 958. *Estimated annual frequency of responses:* dependent on number of vessel arrivals in the United States. Estimated Burden for Importer Requirements Under § 149.2 *Estimated annual reporting and/or recordkeeping burden:* 10,482,907 hours. *Estimated average annual burden per respondent/recordkeeper:* 52.3 hours. *Estimated number of respondents and/or recordkeepers:* 200,438. *Estimated annual frequency of responses:* dependent on number of shipments to the United States. Comments on the collection of information should be sent to the Office of Management and Budget, Attention: Desk Officer of the Department of Homeland Security, Office of Information and Regulatory Affairs, Washington, DC 20503. A copy should also be sent to the Border Security Regulations Branch, Office of International Trade, U.S Customs and Border Protection, 1300 Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229. Comments should be submitted within the time frame that comments are due regarding the substance of the proposal. Comments are invited on:
(a)Whether the collection is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of the burden of the collection of the information;
(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 respondents, including through the use of automated collection techniques or other forms of information technology; and
(e)estimates of capital or startup costs and costs of operations, maintenance, and purchases of services to provide information. The list of approved information collections, contained in 19 CFR Part 178, would be revised to add an appropriate reference to sections 4.7c, 4.7d, and 149.2 upon adoption of the proposal as a final rule. IX. Signing Authority The signing authority for these amendments falls under 19 CFR 0.1(b). Accordingly, this document is signed by the Secretary of Homeland Security (or his delegate). X. Proposed Regulatory Amendments List of Subjects 19 CFR part 4 Customs duties and inspection, Freight, Maritime carriers, Reporting and recordkeeping requirements, Vessels. 19 CFR part 12 Customs duties and inspection, Reporting and recordkeeping requirements. 19 CFR part 18 Common carriers, Customs duties and inspection, Freight, Penalties, Reporting and recordkeeping requirements, Surety bonds. 19 CFR part 101 Customs duties and inspection, Vessels. 19 CFR part 103 Administrative practice and procedure, Confidential business information, Courts, Freedom of information, Law enforcement, Privacy, Reporting and recordkeeping requirements. 19 CFR part 113 Common carriers, Customs duties and inspection, Freight, Reporting and recordkeeping requirements, Surety bonds. 19 CFR part 122 Administrative practice and procedure, Customs duties and inspection, Penalties, Reporting and recordkeeping requirements. 19 CFR part 123 Customs duties and inspection, Freight, Reporting and recordkeeping requirements, Vessels. 19 CFR part 141 Customs duties and inspection, Reporting and recordkeeping requirements. 19 CFR part 143 Customs duties and inspection, Reporting and recordkeeping requirements. 19 CFR part 149 Arrival, Declarations, Customs duties and inspection, Freight, Importers, Imports, Merchandise, Reporting and recordkeeping requirements, Shipping, Vessels. 19 CFR part 192 Penalties, Reporting and recordkeeping requirements, Vessels. Amendments to the Regulations It is proposed to amend parts 4, 12, 18, 101, 103, 113, 122, 123, 141, 143, 149, and 192 of title 19, Code of Federal Regulations (19 CFR parts 4, 12, 18, 101, 103, 113, 122, 123, 141, 143, 149, and 192), as set forth below. PART 4—VESSELS IN FOREIGN AND DOMESTIC TRADES 1. The general authority citation for part 4 is revised, the relevant specific authority citations are revised, and the specific authority citation for sections 4.7c and 4.7d is added to read as follows: Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624, 2071 note; 46 U.S.C. 60105; Section 4.7 also issued under 19 U.S.C. 1581(a); Section 4.7a also issued under 19 U.S.C. 1498, 1584; Sections 4.7c and 4.7d also issued under 6 U.S.C. 943. 2. Amend § 4.7 by: a. Revising paragraph (b)(2); and b. In paragraph (e), removing the phrase “in addition to penalties applicable under other provisions of law” at the end of the first sentence and adding in its place the phrase “in addition to damages under the international carrier bond of $5,000 for each violation discovered”, and removing the phrase “, in addition to any other penalties applicable under other provisions of law” at the end of the paragraph and adding in its place “of $5,000 for each violation discovered”. The revised paragraph (b)(2) reads as follows: § 4.7 Inward foreign manifest; production on demand; contents and form; advance filing of cargo declaration.
(b)* * *
(2)In addition to the vessel stow plan requirements pursuant to § 4.7c of this part and the container status message requirements pursuant to § 4.7d of this part, subject to the effective date provided in paragraph (b)(5) of this section, and with the exception of any bulk or authorized break bulk cargo as prescribed in paragraph (b)(4) of this section, Customs and Border Protection
(CBP)must receive from the incoming carrier, for any vessel covered under paragraph
(a)of this section, the CBP-approved electronic equivalent of the vessel's Cargo Declaration (Customs Form 1302), 24 hours before the cargo is laden aboard the vessel at the foreign port ( *see* § 4.30(n)(1)). The current approved system for presenting electronic cargo declaration information to CBP is the Vessel Automated Manifest System (AMS). § 4.7a [Amended] 3. Amend § 4.7a(f) by removing the phrase “in addition to penalties applicable under other provisions of law” at the end of the first sentence and adding in its place “in addition to damages under the international carrier bond of $5,000 for each violation discovered”, and removing the phrase “, in addition to other penalties applicable under other provisions of law” at the end of the paragraph and adding in its place “of $5,000 for each violation discovered”. 4. Add a new § 4.7c, to read as follows: § 4.7c Vessel stow plan. *Vessel stow plan required.* In addition to the advance filing requirements pursuant to §§ 4.7 and 4.7a of this part and the container status message requirements pursuant to § 4.7d of this part, for all vessels subject to § 4.7(a) of this part, except for any vessel exclusively carrying bulk cargo as prescribed in § 4.7(b)(4) of this part, the incoming carrier must submit a vessel stow plan consisting of vessel, container, and break bulk cargo information as specified in paragraphs (a)(2) and
(3)of this section within the time prescribed in paragraph (a)(1) of this section via the CBP-approved electronic data interchange system.
(a)*Time of transmission.* Customs and Border Protection
(CBP)must receive the stow plan no later than 48 hours after the vessel departs from the last foreign port. For voyages less than 48 hours in duration, CBP must receive the stow plan prior to arrival at the first U.S. port.
(b)*Vessel information required to be reported.* The following information must be reported for each vessel:
(1)Vessel name (including international maritime organization
(IMO)number);
(2)Vessel operator; and
(3)Voyage number.
(c)*Container information required to be reported.* The following information must be reported for each container and unit of break bulk cargo carried on each vessel:
(1)Container operator, if containerized;
(2)Equipment number, if containerized;
(3)Equipment size and type, if containerized;
(4)Stow position;
(5)Hazmat-UN code;
(6)Port of lading; and
(7)Port of discharge. 5. Add a new section 4.7d, to read as follows: § 4.7d Container status messages.
(a)*Container status messages required.* In addition to the advance filing requirements pursuant to §§ 4.7 and 4.7a of this part and the vessel stow plan requirements pursuant to § 4.7c of this part, for all containers laden with cargo destined to arrive within the limits of a port in the United States from foreign by vessel, the incoming carrier must submit messages regarding the status of the events as specified in paragraph
(b)of this section if the carrier creates or collects a container status message
(CSM)in its equipment tracking system reporting that event. CSMs must be transmitted to Customs and Border Protection
(CBP)within the time prescribed in paragraph
(c)of this section via a CBP-approved electronic data interchange system. There is no requirement that a carrier create or collect any CSM data under this paragraph that the carrier does not otherwise create or collect on its own and maintain in its electronic equipment tracking system.
(b)*Events required to be reported.* The following events must be reported if the carrier creates or collects a container status message in its equipment tracking system reporting that event:
(1)When the booking relating to a container which is destined to arrive within the limits of a port in the United States by vessel is confirmed;
(2)When a container which is destined to arrive within the limits of a port in the United States by vessel undergoes a terminal gate inspection;
(3)When a container, which is destined to arrive within the limits of a port in the United States by vessel, arrives or departs a facility (These events take place when a container enters or exits a port, container yard, or other facility. Generally, these CSMs are referred to as “gate-in” and “gate-out” messages.);
(4)When a container, which is destined to arrive within the limits of a port in the United States by vessel, is loaded on or unloaded from a conveyance (This includes vessel, feeder vessel, barge, rail and truck movements. Generally, these CSMs are referred to as “loaded on” and “unloaded from” messages);
(5)When a vessel transporting a container, which is destined to arrive within the limits of a port in the United States by vessel, departs from or arrives at a port (These events are commonly referred to as “vessel departure” and “vessel arrival” notices);
(6)When a container which is destined to arrive within the limits of a port in the United States by vessel undergoes an intra-terminal movement;
(7)When a container which is destined to arrive within the limits of a port in the United States by vessel is ordered stuffed or stripped;
(8)When a container which is destined to arrive within the limits of a port in the United States by vessel is confirmed stuffed or stripped; and
(9)When a container which is destined to arrive within the limits of a port in the United States by vessel is shopped for heavy repair.
(c)*Time of transmission.* For each event specified in paragraph
(b)of this section that has occurred, and for which the carrier creates or collects a container status message
(CSM)in its equipment tracking system reporting that event, the carrier must transmit the CSM to CBP no later than 24 hours after the CSM is entered into the equipment tracking system.
(d)*Contents of report.* The report of each event must include the following:
(1)Event code being reported, as defined in the ANSI X.12 or UN EDIFACT standards;
(2)Container number;
(3)Date and time of the event being reported;
(4)Status of the container (empty or full);
(5)Location where the event took place; and
(6)Vessel identification associated with the message.
(e)*Additional container status messages.* A carrier may transmit other container status messages in addition to those required pursuant to paragraph
(b)of this section. By transmitting additional container status messages, the carrier authorizes Customs and Border Protection
(CBP)to access and use that data. PART 12—SPECIAL CLASSES OF MERCHANDISE 6. The general authority citation for part 12 and specific authority citation for § 12.3 continue to read as follows: Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1624; Section 12.3 also issued under 7 U.S.C. 135h, 21 U.S.C. 381; § 12.3 [Amended] 7. Amend § 12.3(b)(2) and
(c)by removing references to “§ 113.62(l)(1)” and adding in their place “§ 113.62(m)(1)”. PART 18—VESSELS IN FOREIGN AND DOMESTIC TRADES 8. The general authority citation for part 18 continues to read as follows: Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1551, 1552, 1553, 1623, 1624; 9. Amend § 18.5 by: a. In paragraph (a), removing the reference to “paragraphs (c), (d),
(e)and (f)” and adding in its place “paragraphs (c), (d), (e), (f), and (g)”; and b. Adding a new paragraph (g). The new paragraph
(g)reads as follows: § 18.5 Diversion.
(g)For in-bond shipments which, at the time of transmission of the Importer Security Filing as required by § 149.2 of this chapter, are intended to be entered as an immediate exportation
(IE)or transportation and exportation (T&E) shipment, permission to divert the in-bond movement to a port other than the listed port of destination or export or to change the in-bond entry into a consumption entry must be obtained from the port director of the port of origin. Such permission would only be granted upon receipt by Customs and Border Protection
(CBP)of a complete Importer Security Filing as required by part 149 of this chapter. PART 103—AVAILABILITY OF INFORMATION 10. The general authority citation for part 103 continues, and the specific authority citation for § 103.31a is revised to read as follows: Authority: 5 U.S.C. 301, 552, 552a; 19 U.S.C. 66, 1624; 31 U.S.C. 9701. Section 103.31a also issued under 19 U.S.C. 2071 note and 6 U.S.C. 943; 11. Revise § 103.31a to read as follows: § 103.31a Advance electronic information for air, truck, and rail cargo; Importer Security Filing information for vessel cargo. The following types of advance electronic information are per se exempt from disclosure under § 103.12(d), unless CBP receives a specific request for such records pursuant to § 103.5, and the owner of the information expressly agrees in writing to its release:
(a)Advance cargo information that is electronically presented to Customs and Border Protection
(CBP)for inbound or outbound air, rail, or truck cargo in accordance with § 122.48a, 123.91, 123.92, or 192.14 of this chapter;
(b)Importer Security Filing information that is electronically presented to CBP for inbound vessel cargo in accordance with § 149.2 of this chapter;
(c)Vessel stow plan information that is electronically presented to CBP for inbound vessels in accordance with § 4.7c of this chapter; and
(d)Container status message information that is electronically presented for inbound containers in accordance with § 4.7d of this chapter. PART 113—CUSTOMS BONDS 12. The general authority citation for part 113 continues to read as follows: Authority: 19 U.S.C. 66, 1623, 1624. 13. Amend § 113.62 by: a. Redesignating paragraphs
(j)through
(l)as paragraphs
(k)through (m); b. Adding new paragraph (j); c. In redesignated paragraph (k)(2), removing the phrase “$5,000 for each regulation violated” and adding in its place “$5,000 for each violation”. d. In newly designated paragraph (m)(1), removing the reference to “paragraphs (a), (g), (i), (j)(2), or (k)” and adding in its place “paragraphs (a), (g), (i), (j), (k)(2), or (l)”; e. In newly designated paragraph (m)(4), removing the reference to “paragraph (l)(1)” and adding in its place “paragraph (m)(1)”; and f. In newly designated paragraph (m)(5), removing the reference to “paragraph (k)” and adding in its place “paragraph (l)”. The new paragraph
(j)reads as follows: § 113.62 Basic importation and entry bond conditions.
(j)The principal agrees to comply with all Importer Security Filing requirements set forth in part 149 of this chapter including but not limited to providing security filing information to Customs and Border Protection in the manner and in the time period prescribed by regulation. If the principal defaults with regard to any obligation, the principal and surety (jointly and severally) agree to pay liquidated damages equal to the value of the merchandise involved in the default. 14. Amend § 113.64 by: a. Redesignating paragraphs
(d)through
(g)as paragraphs
(h)through (k); b. Redesignating paragraph
(c)as paragraph (d); c. Adding new paragraphs (c), (e), (f), and (g); and d. In redesignated paragraph (d), removing the phrase “$5,000 for each regulation violated” and adding in its place “$5,000 for each violation”. New paragraphs (c), (e), (f), and
(g)read as follows: § 113.64 International carrier bond conditions.
(c)*Agreement to provide advance cargo information.* The incoming carrier agrees to provide advance cargo information to CBP in the manner and in the time period required under §§ 4.7 and 4.7a of this chapter. If the incoming carrier, as principal, defaults with regard to these obligations, the principal and surety (jointly and severally) agree to pay liquidated damages of $5,000 for each violation, to a maximum of $100,000 per conveyance arrival.
(e)*Agreement to comply with Importer Security Filing requirements.* If the principal elects to provide the Importer Security Filing information to Customs and Border Protection (CBP), the principal agrees to comply with all Importer Security Filing requirements set forth in part 149 of this chapter including but not limited to providing security filing information to CBP in the manner and in the time period prescribed by regulation. If the principal defaults with regard to any obligation, the principal and surety (jointly and severally) agree to pay liquidated damages equal to the value of the merchandise involved in the default.
(f)*Agreement to comply with vessel stow plan requirements.* If the principal causes a vessel to arrive within the limits of a port in the United States, the principal agrees to submit a stow plan in the manner and in the time period required pursuant to part 4.7c of this chapter. If the principal defaults with regard to this obligation, the principal and surety (jointly and severally) agree to pay liquidated damages of $50,000 for each vessel arrival.
(g)*Agreement to comply with container status message requirements.* If the principal causes a vessel to arrive within the limits of a port in the United States, the principal agrees to submit container status messages in the manner and in the time period required pursuant to part 4.7d of this chapter. If the principal defaults with regard to these obligations, the principal and surety (jointly and severally) agree to pay liquidated damages of $5,000 for each violation, to a maximum of $100,000 per vessel arrival. 15. Amend § 113.73 by: a. Redesignating existing paragraphs
(c)and
(d)as paragraphs
(d)and (e); and b. Adding a new paragraph (c). The new paragraph
(c)reads as follows: § 113.73 Foreign trade zone operator bond conditions.
(c)*Agreement to comply with Importer Security Filing requirements.* The principal agrees to comply with all Importer Security Filing requirements set forth in part 149 of this chapter including but not limited to providing security filing information to Customs and Border Protection
(CBP)in the manner and in the time period prescribed by regulation. If the principal defaults with regard to any obligation, the principal and surety (jointly and severally) agree to pay liquidated damages equal to the value of the merchandise involved in the default. PART 122—AIR COMMERCE REGULATIONS 16. The general authority citation for part 122 continues to read as follows: Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 1431, 1433, 1436, 1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note. § 122.48a [Amended] 17. Amend § 122.48a(c)(2) by removing the reference to “§ 113.62(j)(2)” and adding in its place “§ 113.62(k)(2)”. PART 123—CUSTOMS RELATIONS WITH CANADA AND MEXICO 18. The general authority citation for part 123 continues to read as follows: Authority: 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1431, 1433, 1436, 1448, 1624, 2071 note. § 123.92 [Amended] 19. Amend § 123.92(c)(2) by removing the reference to “§ 113.62(j)(2)” and adding in its place “§ 113.62(k)(2)”. PART 141—ENTRY OF MERCHANDISE 20. The general authority citation for part 141 and specific authority citation for § 141.113 continue to read as follows: Authority: 19 U.S.C. 66, 1448, 1484, 1624. Section 141.113 also issued under 19 U.S.C. 1499, 1623. § 141.113 [Amended] 21. Amend § 141.113(b) by removing the reference to “§ 113.62(l)(1)” and adding in its place “§ 113.62(m)(1)”. PART 143—SPECIAL ENTRY PROCEDURES 24. The general authority citation for part 143 continues to read as follows: Authority: 19 U.S.C. 66, 1481, 1484, 1498, 1624. 25. Revise § 143.1 to read as follows: § 143.1 Eligibility. The Automated Broker Interface
(ABI)is a module of the Customs Automated Commercial System
(ACS)which allows participants to transmit data electronically to CBP through ABI and to receive transmissions through ACS. Its purposes are to improve administrative efficiency, enhance enforcement of customs and related laws, lower costs and expedite the release of cargo.
(a)*Participants for entry and entry summary purposes.* Participants in ABI for the purposes of transmitting data relating to entry and entry summary may be:
(1)Customs brokers as defined in § 111.1 of this chapter;
(2)Importers as defined in § 101.1 of this chapter; and
(3)ABI service bureaus, that is, an individual, partnership, association or corporation which provides communications facilities and data processing services for brokers and importers, but which does not engage in the conduct of customs business as defined in § 111.1 of this chapter.
(b)*Participants for Importer Security Filing purposes.* Any party may participate in ABI solely for the purposes of filing the Importer Security Filing pursuant to § 149.2 of this chapter if that party fulfills the eligibility requirements contained in § 149.5 of this chapter. If a party other than a customs broker as defined in § 111.1 of this chapter or an importer as defined 19 U.S.C. 1484 submits the Importer Security Filing, no portion of the Importer Security Filing can be used for entry or entry summary purposes pursuant to § 149.5 of this chapter.
(c)*Participants for other purposes.* Upon approval by CBP, any party may participate in ABI for other purposes, including transmission of protests, forms relating to in-bond movements (CBP Form 7512), and applications for FTZ admission (CBP Form 214). PART 146—FOREIGN TRADE ZONES 26. The general authority citation for part 146 continues to read as follows: Authority: 19 U.S.C. 66, 81a-81u, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1623, 1624. 27. Amend § 146.32 by: a. Removing all references to “Customs Form 214” and adding in their place “CBP Form 214”; b. Redesignating paragraph
(a)as paragraph (a)(1); and c. Adding a new paragraph (a)(2). The new paragraph (a)(2) reads as follows: § 146.32 Application and permit for admission of merchandise. (a)(1) * * *
(2)*CBP Form 214 and Importer Security Filing submitted via a single electronic transmission.* If an Importer Security Filing is filed pursuant to part 149 of this chapter via the same electronic transmission as CBP Form 214, the filer is only required to provide the following fields once to be used for Importer Security Filing and CBP Form 214 purposes:
(i)Country of origin; and
(ii)Commodity HTSUS number if this number is provided at the 10 digit level. 28. Add part 149 to chapter I to read as follows: PART 149—IMPORTER SECURITY FILING Sec. 149.1 Definitions. 149.2 Importer security filing—requirement, time of transmission, verification of information, update, withdrawal. 149.3 Data elements. 149.4 Bulk and break bulk cargo. 149.5 Authorized agents. 149.6 Entry and/or entry summary documentation and Importer Security Filing submitted via a single electronic transmission. Authority: 5 U.S.C. 301; 6 U.S.C. 943; 19 U.S.C. 66, 1624, 2071 note. § 149.1 Definitions.
(a)*Importer.* For purposes of this part, “importer” means the party causing goods to arrive within the limits of a port in the United States. For foreign cargo remaining on board (FROB), the importer is construed as the carrier. For immediate exportation
(IE)and transportation and exportation (T&E) in-bond shipments, and goods to be delivered to a foreign trade zone (FTZ), the importer is construed as the party filing the IE, T&E, or FTZ documentation.
(b)*Importation.* For purpose of this part, “importation” means the point at which cargo arrives within the limits of a port in the United States.
(c)*Bulk cargo.* For purposes of this part, “bulk cargo” is defined as homogeneous cargo that is stowed loose in the hold and is not enclosed in any container such as a box, bale, bag, cask, or the like. Such cargo is also described as bulk freight. Specifically, bulk cargo is composed of either:
(1)Free flowing articles such as oil, grain, coal, ore, and the like, which can be pumped or run through a chute or handled by dumping; or
(2)Articles that require mechanical handling such as bricks, pig iron, lumber, steel beams, and the like.
(d)*Break bulk cargo.* For purposes of this part, “break bulk cargo” is defined as cargo that is not containerized, but which is otherwise packaged or bundled. § 149.2 Importer security filing—requirement, time of transmission, verification of information, update, withdrawal.
(a)*Importer security filing required.* With the exception of any bulk cargo pursuant to § 149.4(a) of this part, the importer, as defined in § 149.1 of this part, or authorized agent ( *see* § 149.5 of this part) must submit in English the Importer Security Filing elements prescribed in § 149.3 of this part within the time specified in paragraph
(b)of this section via a CBP-approved electronic interchange system.
(b)*Time of transmission.* With the exception of any break bulk cargo pursuant to § 149.4(b) of this part and foreign cargo remaining on board (FROB), CBP must receive the Importer Security Filing no later than 24 hours before the cargo is laden aboard the vessel at the foreign port. For FROB, CBP must receive the Importer Security Filing prior to lading aboard the vessel at the foreign port.
(c)*Verification of information.* Where the party electronically presenting to CBP the Importer Security Filing required in paragraph
(a)of this section receives any of this information from another party, CBP will take into consideration how, in accordance with ordinary commercial practices, the presenting party acquired such information, and whether and how the presenting party is able to verify this information. Where the presenting party is not reasonably able to verify such information, CBP will permit the party to electronically present the information on the basis of what the party reasonably believes to be true.
(d)*Update of Importer Security Filing.* The party who submitted the Importer Security Filing pursuant to paragraph
(a)of this section must update the filing if, after the filing is submitted and before the goods enter the limits of a port in the United States, any of the information submitted changes or more accurate information becomes available.
(e)*Withdrawal of Importer Security Filing.* If, after an Importer Security Filing is submitted pursuant to paragraph
(a)of this section, the goods associated with the Importer Security Filing are no longer intended to be imported to the United States, the party who submitted the Importer Security Filing must withdraw the Importer Security Filing and transmit to CBP the reason for such withdrawal. § 149.3 Data elements.
(a)*Shipments intended to be entered into the United States and shipments intended to be delivered to a foreign trade zone.* Except as otherwise provided for in paragraph
(b)of this section, the following elements must be provided for each good listed at the 6 digit HTSUS number at the lowest bill of lading level (i.e., at the house bill of lading level, if applicable). The manufacturer (or supplier) name and address, country of origin, and commodity HTSUS number must be linked to one another at the line item level.
(1)*Manufacturer (or supplier) name and address* . Name and address of the entity that last manufactures, assembles, produces, or grows the commodity or name and address of the supplier of the finished goods in the country from which the goods are leaving. In the alternative the name and address of the manufacturer (or supplier) that is currently required by the import laws, rules and regulations of the United States ( *i.e.* , entry procedures) may be provided (this is the information that is used to create the existing manufacturer identification
(MID)number for entry purposes).
(2)*Seller name and address* . Name and address of the last known entity *by whom* the goods are sold or agreed to be sold. If the goods are to be imported otherwise than in pursuance of a purchase, the name and address of the owner of the goods must be provided.
(3)*Buyer name and address* . Name and address of the last known entity *to whom* the goods are sold or agreed to be sold. If the goods are to be imported otherwise than in pursuance of a purchase, the name and address of the owner of the goods must be provided.
(4)*Ship to name and address* . Name and address of the first deliver-to party scheduled to physically receive the goods after the goods have been released from customs custody.
(5)*Container stuffing location* . Name and address(es) of the physical location(s) where the goods were stuffed into the container. For break bulk shipments, as defined in § 149.1 of this part, the name and address(es) of the physical location(s) where the goods were made “ship ready” must be provided.
(6)*Consolidator (stuffer) name and address* . Name and address of the party who stuffed the container or arranged for the stuffing of the container. For break bulk shipments, as defined in § 149.1 of this part, the name and address of the party who made the goods “ship ready” or the party who arranged for the goods to be made “ship ready” must be provided.
(7)*Importer of record number/Foreign trade zone applicant identification number* . Internal Revenue Service
(IRS)number, Employer Identification Number (EIN), Social Security Number (SSN), or CBP assigned number of the entity liable for payment of all duties and responsible for meeting all statutory and regulatory requirements incurred as a result of importation. For goods intended to be delivered to a foreign trade zone (FTZ), the IRS number, EIN, SSN, or CBP assigned number of the party filing the FTZ documentation with CBP must be provided.
(8)*Consignee number(s)* . Internal Revenue Service
(IRS)number, Employer Identification Number (EIN), Social Security Number (SSN), or CBP assigned number of the individual(s) or firm(s) in the United States on whose account the merchandise is shipped.
(9)*Country of origin* . Country of manufacture, production, or growth of the article, based upon the import laws, rules and regulations of the United States.
(10)*Commodity HTSUS number* . Duty/statistical reporting number under which the article is classified in the Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS number must be provided to the 6 digit level. The HTSUS number may be provided up to the 10 digit level. This element can only be used for entry purposes if it is provided at the 10 digit level or greater by the importer of record or its licensed customs broker.
(b)*FROB, IE shipments, and T&E shipments* . For shipments consisting entirely of foreign cargo remaining on board
(FROB)and shipments intended to be transported in-bond as an immediate exportation
(IE)or transportation and exportation (T&E), the following elements must be provided for each good listed at the 6 digit HTSUS number at the lowest bill of lading level ( *i.e.* , at the house bill of lading level, if applicable).
(1)*Booking party name and address* . Name and address of the party who is paying for the transportation of the goods.
(2)*Foreign port of unlading* . Port code for the foreign port of unlading at the intended final destination.
(3)*Place of delivery* . City code for the place of delivery.
(4)*Ship to name and address* . Name and address of the first deliver-to party scheduled to physically receive the goods after the goods have been released from customs custody.
(5)*Commodity HTSUS number* . Duty/statistical reporting number under which the article is classified in the Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS number must be provided to the 6 digit level. The HTSUS number may be provided to the 10 digit level. § 149.4 Bulk and break bulk cargo.
(a)*Bulk cargo exempted from filing requirement* . For bulk cargo that is exempt from the requirement set forth in § 4.7(b)(2) of this chapter that a cargo declaration be filed with Customs and Border Protection
(CBP)24 hours before such cargo is laden aboard the vessel at the foreign port, importers, as defined in § 149.1 of this part, of bulk cargo are also exempt from filing an Importer Security Filing with respect to that cargo.
(b)*Break bulk cargo exempted from time requirement* . For break bulk cargo that is exempt from the requirement set forth in § 4.7(b)(2) of this chapter for carriers to file a cargo declaration with Customs and Border Protection
(CBP)24 hours before such cargo is laden aboard the vessel at the foreign port, importers, as defined in § 149.1 of this part, of break bulk cargo are also exempt with respect to that cargo from the requirement set forth in § 149.2 of this part to file an Importer Security Filing with CBP 24 hours before such cargo is laden aboard the vessel at the foreign port. Any importers of break bulk cargo that are exempted from the filing requirement of § 149.2 of this part must present the Importer Security Filing to CBP 24 hours prior to the cargo's arrival in the United States. These importers must still report 24 hours in advance of loading any containerized or non-qualifying break bulk cargo they will be importing. § 149.5 Authorized agents.
(a)*Eligibility* . To be qualified to file Importer Security Filing information electronically, a party must establish the communication protocol required by Customs and Border Protection for properly presenting the Importer Security Filing through the approved data interchange system. If the Importer Security Filing and entry or entry summary are provided via a single electronic transmission to CBP pursuant to § 149.6(b) of this part, the party making the transmission must be an importer acting on its own behalf or a licensed customs broker. Also, any Importer Security Filing filer must possess a basic importation and entry bond containing all the necessary provisions of § 113.62 of this chapter, an international carrier bond containing all the necessary provisions of § 113.64 of this chapter, or a foreign trade zone operator bond containing all the necessary provisions of § 113.73 of this chapter.
(b)*Powers of attorney* . Authorized agents must retain powers of attorney and make them available to representatives of Customs and Border Protection upon request. § 149.6 Entry and/or entry summary documentation and Importer Security Filing submitted via a single electronic transmission. If the Importer Security Filing is filed pursuant to § 149.2 of this part via the same electronic transmission as entry and/or entry summary documentation pursuant to § 142.3 of this chapter, the importer is only required to provide the following fields once to be used for Importer Security Filing, entry, and/or entry summary purposes, as applicable:
(a)Importer of record number;
(b)Consignee number;
(c)Country of origin; and
(d)Commodity HTSUS number if this number is provided at the 10 digit level. PART 192—EXPORT CONTROL 29. The general authority citation for part 192 continues to read as follows: Authority: 19 U.S.C. 66, 1624, 1646c. Subpart A also issued under 19 U.S.C. 1627a, 1646a, 1646b; subpart B also issued under 13 U.S.C. 303; 19 U.S.C. 2071 note; 46 U.S.C. 91. § 192.14 [Amended] 29. Amend § 192.14(c)(4)(ii) by removing the reference to “§ 113.64(g)(2)” and adding in its place “§ 113.64(k)(2)”. Dated: December 14, 2007. W. Ralph Basham, Commissioner, Customs and Border Protection. Approved: Dated: December 21, 2007. Michael Chertoff, Secretary. [FR Doc. E7-25306 Filed 12-31-07; 8:45 am] BILLING CODE 9111-14-P OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE 32 CFR Part 1701 Privacy Act Regulations AGENCY: Office of the Director of National Intelligence. ACTION: Notice of proposed rulemaking. SUMMARY: This proposed regulation provides the public the guidelines under which the Office of the Director of National Intelligence
(ODNI)will implement the Privacy Act of 1974, 5 U.S.C. 552a, as amended. The proposed regulation describes agency policies for collecting and maintaining personally identifiable records and processes for administering requests for records under the Privacy Act. In addition, as permitted by the Privacy Act, subsections
(j)and (k), and in accordance with the rulemaking procedures of the Administrative Procedures Act, 5 U.S.C. 553, the ODNI proposes exempting several new systems of records of the National Counterterrorism Center (NCTC), the Office of the National Counterintelligence Executive (ONCIX), and the Office of the Inspector General
(OIG)from various provisions of the Act. The ODNI further proposes that exemptions invoked by agencies whose records the ODNI receives continue in effect where reasons for the exemption remain valid. Subpart C of this regulation proposes routine uses applicable to more than one ODNI Privacy Act system of records. DATES: Submit comments on or before February 11, 2008. ADDRESSES: You may submit comments, identified by RIN number, by any of the following methods: Federal eRulemaking Portal: *http://www.regulations.gov* . Mail: Director, Information Management Office, Office of the Director of National Intelligence, Washington, DC 20511. FOR FURTHER INFORMATION CONTACT: Mr. John F. Hackett, Director, Information Management Office
(703)482-3610. SUPPLEMENTARY INFORMATION: The ODNI was created by the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat. 3638 (Dec. 17, 2004). The first Director of National Intelligence, Ambassador John D. Negroponte, was sworn in to Office on April 21, 2005 and the ODNI began operations on April 22, 2005. Because the majority of documents held by the ODNI at its inception were previously maintained by the Central Intelligence Agency
(CIA)and because the ODNI did not have a Privacy staff upon stand-up, records were administered under the CIA's Privacy Act authorities and using CIA's administrative resources. At this time, the ODNI proposes its own Privacy Act regulations. Additionally, in compliance with the Privacy Act, 5 U.S.C. 552a(e)(4), the ODNI describes in the notice section of today's **Federal Register** the following twelve new systems of records: NCTC Access Authorization Records, NCTC Human Resources Management System, NCTC Telephone Directory, NCTC Knowledge Repository (SANCTUM), NCTC Online (NOL), NCTC Tacit Knowledge Management Records, NCTC Terrorism Analysis Records, NCTC Terrorist Identities Records, NCTC Partnership Management Records, ONCIX Counterintelligence Damage Assessment Records, OIG Experts Contact Records, OIG Human Resources Records and OIG Investigation and Interview Records. Regulatory Flexibility Act This proposed rule affects the manner in which ODNI collects and maintains information about individuals. ODNI certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities. Accordingly, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, no regulatory flexibility analysis is required for this rule. Small Entity Inquiries The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the ODNI to comply with small entity requests for information and advice about compliance with statutes and regulations within the ODNI jurisdiction. Any small entity that has a question regarding this document may address it to the information contact listed above. Further information regarding SBREFA is available on the Small Business Administration's Web page at *http://www.sga.gov/advo/law/law_lib.html* . Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the ODNI consider the impact of paperwork and other burdens imposed on the public associated with the collection of information. There are no information collection requirements associated with this proposed rule and therefore no analysis of burden is required. Executive Order 12866, Regulatory Planning and Review This proposed rule is not a “significant regulatory action” within the meaning of Executive Order 12866. This rule will not have an annual effect on the economy of $100 million or more or otherwise adversely affect the economy or sector of the economy in a material way; will not create inconsistency with or interfere with other agency action; will not materially alter the budgetary impact of entitlements, grants, fees or loans or the right and obligations of recipients thereof; or raise legal or policy issues arising out of legal mandates, the President's priorities or the principles set forth in the Executive Order. Accordingly, further regulatory evaluation is not required. Unfunded Mandates Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, 109 Stat. 48 (Mar. 22, 1995), requires Federal agencies to assess the effects of certain regulatory actions on State, local, and tribal governments, and the private sector. This proposed rule imposes no Federal mandate on any State, local, or tribal government or on the private sector. Accordingly, no UMRA analysis of economic and regulatory alternatives is required. Executive Order 13132, Federalism Executive Order 13132 requires ODNI to examine the implications for the distribution of power and responsibilities among the various levels of government resulting from this proposed rule. ODNI concludes that the proposed rule does not affect the rights, roles and responsibilities of the States, involves no preemption of State law and does not limit State policymaking discretion. This rule has no federalism implications as defined by the Executive Order. Environmental Impact The ODNI has reviewed this action for purposes of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347, and has determined that this action will not have a significant effect on the human environment. Energy Impact The energy impact of this action has been assessed in accordance with the Energy Policy and Conservation Act (EPCA), Public Law 94-163, as amended, 42 U.S.C. 6362. This rulemaking is not a major regulatory action under the provisions of the EPCA. List of Subjects in 32 CFR Part 1701 Records and Privacy Act. For the reasons set forth in the preamble, ODNI proposes to add part 1701 as follows: PART 1701—ADMINISTRATION OF RECORDS UNDER THE PRIVACY ACT OF 1974 Subpart A—Protection of Privacy and Access to Individual Records Under the Privacy Act of 1974 Sec. 1701.1 Purpose, scope, applicability. 1701.2 Definitions. 1701.3 Contact for general information and requests. 1701.4 Privacy Act responsibilities/policy. 1701.5 Collection and maintenance of records. 1701.6 Disclosure of records/policy. 1701.7 Requests for notification of and access to records. 1701.8 Requests to amend or correct records. 1701.9 Requests for an accounting of record disclosures. 1701.10 ODNI responsibility for responding to access requests. 1701.11 ODNI responsibility for responding to requests for amendment or correction. 1701.12 ODNI responsibility for responding to requests for accounting. 1701.13 Special procedures for medical/psychiatric/psychological testing records. 1701.14 Appeals. 1701.15 Fees. 1701.16 Contractors. 1701.17 Standards of conduct. Subpart B—Exemption of Records Systems Under the Privacy Act 1701.20 Exemption policies. 1701.21 Exemption of National Counterterrorism Center
(NCTC)systems of records. 1701.22 Exemption of Office of the National Counterintelligence Executive (ONCIX) systems of records. 1701.23 Exemption of Office of Inspector General
(OIG)systems of records. Subpart C—Routine Uses Applicable to More Than One ODNI System of Records 1701.30 Policy and applicability. 1701.31 General routine uses. Authority: 50 U.S.C. 401-442; 5 U.S.C. 552a. Subpart A—Protection of Privacy and Access to Individual Records Under the Privacy Act of 1974 § 1701.1 Purpose, scope, applicability.
(a)*Purpose.* This subpart establishes the policies and procedures the Office of the Director of National Intelligence
(ODNI)will follow in implementing the requirements of the Privacy Act of 1974, 5 U.S.C. 552a, as amended. This subpart sets forth the procedures ODNI must follow in collecting and maintaining personal information from or about individuals, as well as procedures by which individuals may request to access or amend records about themselves and request an accounting of disclosures of those records by the ODNI. In addition, this subpart details parameters for disclosing personally identifiable information to persons other than the subject of a record.
(b)*Scope.* The provisions of this subpart apply to all records in systems of records maintained by ODNI directorates, centers, mission managers and other sub-organizations [hereinafter called “components”] that are retrieved by an individual's name or personal identifier.
(c)*Applicability.* This subpart governs the following individuals and entities:
(1)All ODNI staff and components must comply with this subpart. The terms “staff” and “component” are defined in § 1701.2.
(2)Unless specifically exempted, this subpart also applies to advisory committees and councils within the meaning of the Federal Advisory Committee Act
(FACA)which provide advice to: any official or component of ODNI; or the President, and for which ODNI has been delegated responsibility for providing service.
(d)*Relation to Freedom of Information Act.* The ODNI shall provide a subject individual under this subpart all records which are otherwise accessible to such individual under the provisions of the Freedom of Information Act, 5 U.S.C. 552. § 1701.2 Definitions For purposes of this subpart, the following terms have the meanings indicated:
(a)*Access* means making a record available to a subject individual.
(b)*Act* means the Privacy Act of 1974.
(c)*Agency* means the ODNI or any of its components.
(d)*Component* means any directorate, mission manager, or other sub-organization in the ODNI or reporting to the Director, that has been designated or established in the ODNI pursuant to Section 103 of the National Security Act of 1947, as amended, including the National Counterterrorism Center (NCTC), the National Counterproliferation Center
(NCPC)and the Office of the National Counterintelligence Executive (ONCIX), or such other offices and officials as may be established by law or as the Director may establish or designate in the ODNI, for example, the Program Manager, Information Sharing Environment
(ISE)and the Inspector General (IG).
(e)*Disclosure* means making a record about an individual available to or releasing it to another party.
(f)*FOIA* means the Freedom of Information Act. ( *g) Individual,* when used in connection with the Privacy Act, means a living person who is a citizen of the United States or an alien lawfully admitted for permanent residence. It does not include sole proprietorships, partnerships, or corporations.
(h)*Information* means information about an individual and includes, but is not limited to, vital statistics; race, sex, or other physical characteristics; earnings information; professional fees paid to an individual and other financial information; benefit data or claims information; the social security number, employer identification number, or other individual identifier; address; phone number; medical information; and information about marital, family or other personal relationships.
(i)*Maintain* means to establish, collect, use, or disseminate when used in connection with the term *record;* and, to have control over or responsibility for a system of records, when used in connection with the term *system of records.*
(j)*Notification* means communication to an individual whether he is a subject *individual*
(k)*Office of the Director of National Intelligence* means any and all of the *components* of the ODNI.
(l)*Record* means any item, collection, or grouping of information about an individual that is maintained by the ODNI including, but not limited to, information such as an individual's education, financial transactions, medical history, and criminal or employment history that contains the individual's name, or an identifying number, symbol, or any other identifier assigned to an individual. When used in this subpart, record means only a record that is in a system of records.
(m)*Routine use* means the disclosure of a record outside ODNI, without the consent of the subject individual, for a purpose which is compatible with the purpose for which the record was collected. It does not include disclosure which the Privacy Act otherwise permits pursuant to subsection
(b)of the Act.
(n)*Staff* means any current or former regular or special employee, detailee, assignee, employee of a contracting organization, or independent contractor of the ODNI or any of its components.
(o)*Subject individual* means the person to whom a record pertains (or “record subject.”).
(p)*System of records* means a group of records under ODNI's control from which information about an individual is retrieved by the name of the individual or by an identifying number, symbol, or other particular assigned to the individual. Single records or groups of records which are not retrieved by a personal identifier are not part of a system of records, § 1701.3 Contact for general information and requests. Privacy Act requests and appeals and inquiries regarding this subpart or about ODNI's Privacy Act program must be submitted in writing to the Director, Information Management Office (D/IMO), Office of the Director of National Intelligence, Washington, DC 20511 (by mail or by facsimile at 703-482-2144) or to the contact designated in the specific Privacy Act System of Records Notice. Privacy Act requests with the required identification statement and signature pursuant to paragraphs
(d)and
(e)of § 1701.7 of this subpart must be filed in original form. § 1701.4 Privacy Act responsibilities/policy. The ODNI will administer records about individuals consisten t with statutory, administrative, and program responsibilities. Subject to exemptions authorized by the Act, ODNI will collect, maintain and disclose records as required and will honor subjects' rights to view and amend records and to obtain an accounting of disclosures. § 1701.5 Collection and maintenance of records.
(a)ODNI will not maintain a record unless:
(1)It is relevant and necessary to accomplish an ODNI function required by statute or Executive Order;
(2)It is acquired to the greatest extent practicable from the subject individual when ODNI may use the record to make any determination about the individual;
(3)The individual providing the record is informed of the authority for providing the record (including whether providing the record is mandatory or voluntary), the principal purpose for maintaining the record, the routine uses for the record, and what effect refusing to provide the record may have;
(4)It is maintained with such accuracy, relevance, timeliness and completeness as is reasonably necessary to ensure fairness to the individual in the determination;
(b)Except as to disclosures made to an agency or made under the FOIA, ODNI will make reasonable efforts prior to disseminating a record about an individual, to ensure that the record is accurate, relevant, timely, and complete;
(c)ODNI will not maintain or develop a system of records that is not the subject of a current or planned public notice;
(d)ODNI will not adopt a routine use of information in a system without notice and invitation to comment published in the **Federal Register** at least 30 days prior to final adoption of the routine use;
(e)To the extent ODNI participates with a non-Federal agency in matching activities covered by section
(8)of the Act, ODNI will publish notice of the matching program in the **Federal Register** ;
(f)ODNI will not maintain a record which describes how an individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the subject individual, or unless pertinent to and within the scope of an authorized law enforcement activity;
(g)When required by the Act, ODNI will maintain an accounting of all disclosures of records by the ODNI to persons, organizations or agencies;
(h)Each ODNI component shall implement administrative, physical and technical controls to prevent unauthorized access to its systems of records, to prevent unauthorized disclosure of records, and to prevent physical damage to or destruction of records;
(i)ODNI will establish rules and instructions for complying with the requirements of the Privacy Act, including notice of the penalties for non-compliance, applicable to all persons involved in the design, development, operation or maintenance of any system of records. § 1701.6 Disclosure of records/policy. Consistent with 5 U.S.C. 552a(b), ODNI will not disclose any record which is contained in a system of records by any means (written, oral or electronic) without the consent of the subject individual unless disclosure without consent is made for reasons permitted under applicable law, including:
(a)Internal agency use on a need-to-know basis;
(b)Release under the Freedom of Information Act
(FOIA)if not subject to protection under the FOIA exemptions;
(c)A specific “routine use” as described in the ODNI's published compilation of Blanket Routine Uses or in specific published Privacy Act Systems of Records Notices (available at *http://www.dni.gov* );
(d)Release to the Bureau of the Census, the National Archives and Records Administration, or the Government Accountability Office, for the performance of those entities' statutory duties;
(e)Release in non-identifiable form to a recipient who has provided written assurance that the record will be used solely for statistical research or reporting;
(f)Compelling circumstances in which the health or safety of an individual is at risk;
(g)Release pursuant to the order of a court of competent jurisdiction or to a governmental entity for a specifically documented civil or criminal law enforcement activity;
(h)Release to either House of Congress or to any committee, subcommittee or joint committee thereof to the extent of matter within its jurisdiction;
(i)Release to a consumer reporting agency in accordance with section 3711(e) of Title 31. § 1701.7 Requests for notification of and access to records.
(a)*How to request.* Unless records are not subject to access (see paragraph
(b)of this section), individuals seeking access to records about themselves may submit a request in writing to the D/IMO, as directed in § 1701.3 of this subpart, or to the contact designated in the specific Privacy Act System of Records Notice. To ensure proper routing and tracking, requesters should mark the envelope “Privacy Act Request.”
(b)*Records not subject to access.* The following records are not subject to review by subject individuals:
(1)Records in ODNI systems of records that ODNI has exempted from access and correction under the Privacy Act, 5 U.S.C. 552a(j) or (k), by notice published in the **Federal Register** , or where those exemptions require that ODNI can neither confirm nor deny the existence or nonexistence of responsive records (see § 1701.10(c)(iii)).
(2)Records in ODNI systems of records that another agency has exempted from access and correction under the Privacy Act, 5 U.S.C. 552a(j) or (k), by notice published in the **Federal Register** , or where those exemptions require that ODNI can neither confirm nor deny the existence or nonexistence of responsive records (see § 1701.10(c)(iii)).
(c)*Description of records.* Individuals requesting access to records about themselves should, to the extent possible, describe the nature of the records, why and under what circumstances the requester believes ODNI maintains the records, the time period in which they may have been compiled and, ideally, the name or identifying number of each Privacy Act System of Records in which they might be included. The ODNI publishes notices in the **Federal Register** that describe its systems of records. The **Federal Register** compiles these notices biennially and makes them available in hard copy at large reference libraries and in electronic form at the Government Printing Office's World Wide Web site, *http://www.gpoaccess.gov.*
(d)*Verification of identity.* A written request for access to records about oneself must include full (legal) name, current address, date and place of birth, and citizenship status. Aliens lawfully admitted for permanent residence must provide their Alien Registration Number and the date that status was acquired. The D/IMO may request additional or clarifying information to ascertain identity. Access requests must be signed and the signature either notarized or submitted under 28 U.S.C. 1746, authorizing statements made under penalty of perjury as a substitute for notarization.
(e)*Verification of guardianship or representational relationship.* The parent or guardian of a minor, the guardian of an individual under judicial disability, or an attorney retained to represent an individual shall provide, in addition to establishing the identity of the minor or individual represented as required in paragraph
(d)of this section, evidence of such representation by submitting a certified copy of the minor's birth certificate, court order, or representational agreement which establishes the relationship and the requester's identity.
(f)ODNI will permit access to or provide copies of records to individuals other than the record subject (or the subject's legal representative) only with the requester's written authorization. § 1701.8 Requests to amend or correct records.
(a)*How to request.* Unless the record is not subject to amendment or correction (see paragraph
(b)of this section), individuals (or guardians or representatives acting on their behalf) may make a written amendment or correction request to the D/IMO, as directed in § 1701.3 of this subpart, or to the contact designated in a specific Privacy Act System of Records. Requesters seeking amendment or correction should identify the particular record or portion subject to the request, explain why an amendment or correction is necessary, and provide the desired replacement language. Requesters may submit documentation supporting the request to amend or correct. Requests for amendment or correction will lapse (but may be re-initiated with a new request) if all necessary information is not submitted within forty-five
(45)days of the date of the original request. The identity verification procedures of paragraphs
(d)and
(e)of § 1701.7 of this subpart apply to amendment requests.
(b)*Records not subject to amendment or correction.*
(1)Records which are determinations of fact or evidence received ( *e.g.* , transcripts of testimony given under oath or written statements made under oath; transcripts of grand jury proceedings, judicial proceedings, or quasi-judicial proceedings, which are the official record of those proceedings; pre-sentence records that originated with the courts) and
(2)Records in ODNI systems of records that ODNI or another agency has exempted from amendment and correction under Privacy Act, 5 U.S.C. 552a(j) or
(k)by notice published in the **Federal Register** . § 1701.9 Requests for an accounting of record disclosures.
(a)*How to request.* Except where accountings of disclosures are not required to be kept (see paragraph
(b)of this section), record subjects (or their guardians or representatives) may request an accounting of disclosures that have been made to another person, organization, or agency as permitted by the Privacy Act at 5 U.S.C. 552a(b). This accounting contains the date, nature, and purpose of each disclosure, as well as the name and address of the person, organization, or agency to which the disclosure was made. Requests for accounting should identify each record in question and must be made in writing to the D/IMO, as indicated in § 1701.3 of this subpart, or to the contact designated in a specific Privacy Act System of Records.
(b)*Accounting not required.* The ODNI is not required to provide accounting of disclosure in the following circumstances:
(1)Disclosures for which the Privacy Act does not require accounting, *i.e.* , disclosures to employees within the agency and disclosures made under the FOIA;
(2)Disclosures made to law enforcement agencies for authorized law enforcement activities in response to written requests from the respective head of the law enforcement agency specifying the law enforcement activities for which the disclosures are sought; or
(3)Disclosures from systems of records that have been exempted from accounting requirements under the Privacy Act, 5 U.S.C. 552a(j) or (k), by notice published in the **Federal Register** . § 1701.10 ODNI responsibility for responding to access requests.
(a)*Acknowledgement of requests.* Upon receipt of a request providing all necessary information, the D/IMO shall acknowledge receipt to the requester and provide an assigned request number for further reference.
(b)*Tasking to component.* Upon receipt of a proper access request, the D/IMO shall provide a copy of the request to the point of contact
(POC)in the ODNI component with which the records sought reside. The POC within the component shall determine whether responsive records exist and, if so, recommend to the D/IMO:
(1)Whether access should be denied in whole or part (and the legal basis for denial under the Privacy Act); or
(2)Whether coordination with or referral to another component or federal agency is appropriate.
(c)*Coordination and referrals—*
(1)*Examination of records.* If a component POC receiving a request for access determines that an originating agency or other agency that has a substantial interest in the record is best able to process the request ( *e.g.* , the record is governed by another agency's regulation, or another agency originally generated or classified the record), the POC shall forward to the D/IMO all records necessary for coordination with or referral to the other component or agency, as well as specific recommendations with respect to any denials.
(2)*Notice of referral.* Whenever the D/IMO refers all or any part of the responsibility for responding to a request to another agency, the D/IMO shall notify the requester of the referral.
(3)*Effect of certain exemptions.*
(i)In processing a request, the ODNI shall decline to confirm or deny the existence or nonexistence of any responsive records whenever the fact of their existence or nonexistence:
(A)May reveal protected intelligence sources and collection methods (50 U.S.C. 403-1(i)); or
(B)Is classified and subject to an exemption appropriately invoked by ODNI or another agency under subsections
(j)or
(k)of the Privacy Act.
(ii)In such event, the ODNI will inform the requester in writing and advise the requestor of the right to file an administrative appeal of any adverse determination.
(d)*Time for response.* The D/IMO shall respond to a request for access promptly upon receipt of recommendations from the POC and determinations resulting from any necessary coordination with or referral to another agency. The D/IMO may determine to update a requester on the status of a request that remains outstanding longer than reasonably expected.
(e)*ODNI action on requests for access* —(1) *Grant of access.* Once the D/IMO determines to grant a request for access in whole or in part, the D/IMO shall notify the requester in writing and come to agreement with the requester about how to effect access, whether by on-site review or duplication of the records. If a requester is accompanied by another person, the requester shall be required to authorize in writing any discussion of the records in the presence of the other person.
(2)*Denial of access.* The D/IMO shall notify the requester in writing when an adverse determination is made denying a request for access in any respect. Adverse determinations, or denials, consist of a determination to withhold any requested record in whole or in part; a determination that a requested record does not exist or cannot be located; a determination that what has been requested is not a record subject to the Privacy Act; or a determination that the existence of a record can neither be confirmed nor denied. The notification letter shall state:
(i)The reason(s) for the denial; and
(ii)The procedure for appeal of the denial under § 1701.14 of this subpart. § 1701.11 ODNI responsibility for responding to requests for amendment or correction.
(a)*Acknowledgement of request* . The D/IMO shall acknowledge receipt of a request for amendment or correction of records in writing and provide an assigned request number for further reference.
(b)*Tasking of component* . Upon receipt of a proper request to amend or correct a record, the D/IMO shall forward the request to the POC in the component maintaining the record. The POC shall promptly evaluate the proposed amendment or correction in light of any supporting justification and recommend that the D/IMO grant or deny the request or, if the request involves a record subject to correction by an originating agency, refer the request to the other agency.
(c)*Action on request for amendment or correction* .
(1)If the POC determines that the request for amendment or correction is justified, in whole or in part, the D/IMO shall promptly:
(i)Make the amendment, in whole or in part, as requested and provide the requester a written description of the amendment or correction made; and
(ii)Provide written notice of the amendment or correction to all persons, organizations or agencies to which the record has been disclosed (if an accounting of the disclosure was made);
(2)Where the D/IMO has referred an amendment request to another agency, the D/IMO, upon confirmation from that agency that the amendment has been effected, shall provide written notice of the amendment or correction to all persons, organizations or agencies to which ODNI previously disclosed the record.
(3)If the POC determines that the requester's records are accurate, relevant, timely and complete, and that no basis exists for amending or correcting the record, either in whole or in part, the D/IMO shall inform the requester in writing of:
(i)The reason(s) for the denial; and
(ii)The procedure for appeal of the denial under § 1701.15 of this subpart. § 1701.12 ODNI responsibility for responding to requests for accounting.
(a)*Acknowledgement of request* . Upon receipt of a request for accounting, the D/IMO shall acknowledge receipt of the request in writing and provide an assigned request number for further reference.
(b)*Tasking of component* . Upon receipt of a request for accounting, the D/IMO shall forward the request to the POC in the component maintaining the record. The POC shall work with the component's information management officer and the systems administrator to generate the requested disclosure history.
(c)*Action on request for accounting* . The D/IMO will notify the requester when the accounting is available for on-site review or transmission in paper or electronic medium.
(d)*Notice of court-ordered disclosures* . The D/IMO shall make reasonable efforts to notify an individual whose record is disclosed pursuant to court order. Notice shall be made within a reasonable time after receipt of the order; however, when the order is not a matter of public record, the notice shall be made only after the order becomes public. Notice shall be sent to the individual's last known address and include a copy of the order and a description of the information disclosed. No notice shall be made regarding records disclosed from a criminal law enforcement system that has been exempted from the notice requirement.
(e)*Notice of emergency disclosures* . ODNI shall notify an individual whose record it discloses under compelling circumstances affecting health or safety. This notice shall be mailed to the individual's last known address and shall state the nature of the information disclosed; the person, organization, or agency to which it was disclosed; the date of disclosure; and the compelling circumstances justifying the disclosure. This provision shall not apply in circumstances involving classified records that have been exempted from disclosure pursuant to subsection
(j)or
(k)of the Privacy Act. § 1701.13 Special procedures for medical/psychiatric/psychological records. Current and former ODNI employees, including current and former employees of ODNI contractors, and unsuccessful applicants for employment may seek access to their medical, psychiatric records, or psychological testing records by writing to: Information and Privacy Coordinator, Central Intelligence Agency, Washington, DC 20505, and provide identifying information as required by paragraphs
(d)and
(e)of § 1701.7 of this subpart. The Central Intelligence Agency's Privacy Act Regulations will govern administration of these types of records, including appeals from adverse determinations. § 1701.14 Appeals.
(a)Individuals may appeal denials of requests for access, amendment, or accounting by submitting a written request for review to the Director, Information Management Office (D/IMO) at the Office of the Director of National Intelligence, Washington, DC 20511. The words “PRIVACY ACT APPEAL” should be written on the letter and the envelope. The appeal must be signed by the record subject or legal representative. No personal appearance or hearing on appeal will be allowed.
(b)The D/IMO must receive the appeal letter within 45 calendar days of the date the requester received the notice of denial. The postmark is conclusive as to timeliness. Copies of correspondence from ODNI denying the request to access or amend the record should be included with the appeal, if possible. At a minimum, the appeal letter should identify:
(1)The records involved;
(2)The date of the initial request for access to or amendment of the record;
(3)The date of ODNI's denial of that request; and
(4)A statement of the reasons supporting the request for reversal of the initial decision. The statement should focus on information not previously available or legal arguments demonstrating that the ODNI's decision is improper.
(c)Following receipt of the appeal, the Director of Intelligence Staff
(DIS)shall, in consultation with the Office of General Counsel, make a final determination in writing on the appeal.
(d)Where ODNI reverses an initial denial, the following procedures apply:
(1)If ODNI reverses an initial denial of access, the procedures in paragraph (e)(1) of § 1701.10 of this subpart will apply.
(2)If ODNI reverses its initial denial of a request to amend a record, the POC will ensure that the record is corrected as requested, and the D/IMO will inform the individual of the correction, as well as all persons, organizations and agencies to which ODNI had disclosed the record.
(3)If ODNI reverses its initial denial of a request for accounting, the POC will notify the requester when the accounting is available for on-site review or transmission in paper or electronic medium.
(e)If ODNI upholds its initial denial or reverses in part (i.e., only partially granting the request), ODNI'S notice of final agency action will inform the requester of the following rights:
(1)Judicial review of the denial under 5 U.S.C. 552a(g)(1), as limited by 5 U.S.C. 552a(g)(5).
(2)Opportunity to file a statement of disagreement with the denial, citing the reasons for disagreeing with ODNI's final determination not to correct or amend a record. The requester's statement of disagreement should explain why he disputes the accuracy of the record.
(3)Inclusion in one's record of copies of the statement of disagreement and the final denial, which ODNI will provide to all subsequent recipients of the disputed record, as well as to all previous recipients of the record where an accounting was made of prior disclosures of the record. § 1701.15 Fees. ODNI shall charge fees for duplication of records under the Privacy Act, 5 U.S.C. 552a, in the same way in which it will charge for duplication of records under § 1700.7(g), ODNI's regulation implementing the fee provision of the Freedom of Information Act, 5 U.S.C. 552. § 1701.16 Contractors.
(a)Any approved contract for the operation of a Privacy Act system of records to accomplish a function of the ODNI will contain the Privacy Act provisions prescribed by the Federal Acquisition Regulations
(FAR)at 48 CFR Part 24, requiring the contractor to comply with the Privacy Act and this subpart. The contracting component will be responsible for ensuring that the contractor complies with these contract requirements. This section does not apply to systems of records maintained by a contractor as a function of management discretion, e.g., the contractor's personnel records.
(b)Where the contract contains a provision requiring the contractor to comply with the Privacy Act and this subpart, the contractor and any employee of the contractor will be considered employees of the ODNI for purposes of the criminal penalties of the Act, 5 U.S.C. 552a(i). § 1701.17 Standards of conduct.
(a)*General* . ODNI will ensure that staff are aware of the provisions of the Privacy Act and of their responsibilities for protecting personal information that ODNI collects and maintains, consistent with §§ 1701.5 and 1701.6 of this subpart.
(b)*Criminal penalties* —(1) *Unauthorized disclosure.* Criminal penalties may be imposed against any ODNI staff who, by virtue of employment, has possession or access to ODNI records which contain information identifiable with an individual, the disclosure of which is prohibited by the Privacy Act or by these rules, and who, knowing that disclosure of the specific material is prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it.
(2)*Unauthorized maintenance* . Criminal penalties may be imposed against any ODNI staff who willfully maintains a system of records without meeting the requirements of subsection (e)(4) of the Privacy Act, 5 U.S.C. 552a. The D/IMO, the Civil Liberties Protection Officer, the General Counsel, and the Inspector General are authorized independently to conduct such surveys and inspect such records as necessary from time to time to ensure that these requirements are met.
(3)*Unauthorized requests* . Criminal penalties may be imposed upon any person who knowingly and willfully requests or obtains any record concerning an individual from the ODNI under false pretenses. Subpart B—Exemption of Record Systems Under the Privacy Act § 1701.20 Exemption policies.
(a)*General* . The DNI has determined that invoking exemptions under the Privacy Act and continuing exemptions previously asserted by agencies whose records ODNI receives is necessary: to ensure against the release of classified information essential to the national defense or foreign relations; to protect intelligence sources and methods; and to maintain the integrity and effectiveness of intelligence, investigative and law enforcement processes. Accordingly, as authorized by the Privacy Act, 5 U.S.C. 552a, subsections
(j)and (k), and in accordance with the rule-making procedures of the Administrative Procedures Act, 5 U.S.C. 553, the ODNI hereby proposes rules to:
(1)Exercise its authority pursuant to subsections
(j)and
(k)of the Privacy Act to exempt certain ODNI systems of records or portions of systems of records from various provisions of the Privacy Act; and
(2)Continue in effect and assert all exemptions claimed under Privacy Act subsections
(j)and
(k)by an originating agency from which the ODNI obtains records where the purposes underlying the original exemption remain valid and necessary to protect the contents of the record.
(b)*Related policies* .
(1)The exemptions asserted apply to records only to the extent they meet the criteria of subsections
(j)and
(k)of the Privacy Act, whether claimed by the ODNI or the originator of the records.
(2)Discretion to supersede exemption: Where complying with a request for access or amendment would not appear to interfere with or adversely affect a counterterrorism or law enforcement interest, and unless prohibited by law, the D/IMO may exercise his discretion to waive the exemption. Discretionary waiver of an exemption with respect to a record will not obligate the ODNI to waive the exemption with respect to any other record in an exempted system of records. As a condition of such discretionary access, ODNI may impose any restrictions (e.g., concerning the location of file reviews) deemed necessary or advisable to protect the security of agency operations, information, personnel, or facilities.
(3)Records in ODNI systems also are subject to protection under 50 U.S.C. 403-1(i), the provision of the National Security Act of 1947 which requires the DNI to protect intelligence sources and methods from unauthorized disclosure. § 1701.21 Exemption of National Counterterrorism Center
(NCTC)systems of records.
(a)The ODNI exempts the following systems of records from the requirements of subsections (c)(3); (d)(1),(2),(3) and (4); (e)(1); (e)(4)(G),(H),(I); and
(f)of the Privacy Act to the extent that information in the system is subject to exemption pursuant subsections (k)(1) and (k)(5) of the Act:
(1)NCTC Human Resources Management System (ODNI/NCTC-001).
(2)[Reserved]
(b)Exemptions from the particular subsections are justified for the following reasons:
(1)From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an investigative interest on the part of the ODNI or recipient agency and could result in release of properly classified national security or foreign policy information.
(2)From subsections (d)(1), (2),
(3)and
(4)(record subject's right to access and amend records) because affording access and amendment rights could alert the record subject to the investigative interest of intelligence or law enforcement agencies or compromise sensitive information classified in the interest of national security. In the absence of a national security basis for exemption, records in this system may be exempted from access and amendment to the extent necessary to honor promises of confidentiality to persons providing information concerning a candidate for position. Inability to maintain such confidentiality would restrict the free flow of information vital to a determination of a candidate's qualifications and suitability.
(3)From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible to establish relevance and necessity before all information is considered and evaluated in relation to an intelligence concern. In the absence of a national security basis for exemption under subsection (k)(1), records in this system may be exempted from the relevance requirement pursuant to subsection (k)(5) because it is not possible to determine in advance what exact information may assist in determining the qualifications and suitability of a candidate for position. Seemingly irrelevant details, when combined with other data, can provide a useful composite for determining whether a candidate should be appointed.
(4)From subsections (e)(4)(G) and
(H)(publication of procedures for notifying subjects of the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection
(d)provisions regarding access and amendment, and from the subsection
(f)requirement to promulgate agency rules. Nevertheless, the ODNI has published notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records.
(5)From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information, intelligence sources and methods, and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records.
(6)From subsection
(f)(agency rules for notifying subjects to the existence of records about them, for accessing and amending records, and for assessing fees) because the system is exempt from subsection
(d)provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject's access request.
(c)The ODNI exempts the following systems of records from the requirements of subsections (c)(3); (d)(1), (2),
(3)and (4); (e)(1); (e)(4)(G), (H), (I); and
(f)of the Privacy Act to the extent that information in the system is subject to exemption pursuant subsection (k)(1) of the Act:
(1)NCTC Access Authorization Records (ODNI/NCTC-002).
(2)NCTC Telephone Directory (ODNI/NCTC-003).
(3)NCTC Partnership Management Records (ODNI/NCTC-006).
(4)NCTC Tacit Knowledge Management Records (ODNI/NCTC-007)
(d)Exemptions from the particular subsections are justified for the following reasons:
(1)From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an investigative interest on the part of the ODNI or recipient agency and could result in release of properly classified national security or foreign policy information.
(2)From subsections (d)(1), (2),
(3)and
(4)(record subject's right to access and amend records) because affording access and amendment rights could alert the record subject to the investigative interest of intelligence or law enforcement agencies or compromise sensitive information classified in the interest of national security.
(3)From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible to establish relevance and necessity before all information is considered and evaluated in relation to an intelligence concern.
(4)From subsections (e)(4)(G) and
(H)(publication of procedures for notifying subjects of the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection
(d)provisions regarding access and amendment and from the subsection
(f)requirement to promulgate agency rules. Nevertheless, the ODNI has published notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records.
(5)From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information, intelligence sources and methods, and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records.
(6)From subsection
(f)(agency rules for notifying subjects to the existence of records about them, for accessing and amending records, and for assessing fees) because the system is exempt from subsection
(d)provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject's access request.
(e)The ODNI exempts the following systems of records from the requirements of subsections (c)(3); (d)(1), (2), (3), (4); (e)(1); (e)(4)(G), (H), (I); and
(f)of the Privacy Act, to the extent that information in the system is subject to exemption pursuant to subsections (k)(1) and (k)(2) of the Act:
(1)NCTC Knowledge Repository (SANCTUM) (ODNI/NCTC-004).
(2)NCTC Online (ODNI/NCTC-005).
(3)NCTC Terrorism Analysis Records (ODNI/NCTC-008).
(4)NCTC Terrorist Identities Records (ODNI/NCTC-009).
(f)Exemptions from the particular subsections are justified for the following reasons:
(1)From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an investigative interest on the part of the ODNI as well as the recipient agency and could: result in release of properly classified national security or foreign policy information; compromise ongoing efforts to investigate a known or suspected terrorist; reveal sensitive investigative or surveillance techniques; or identify a confidential source. With this information, the record subject could frustrate counterintelligence measures; impede an investigation by destroying evidence or intimidating potential witnesses; endanger the physical safety of sources, witnesses, and law enforcement and intelligence personnel and their families; or evade apprehension or prosecution by law enforcement personnel.
(2)From subsections (d)(1), (2),
(3)and
(4)(record subject's right to access and amend records) because these provisions concern individual access to and amendment of counterterrorism, investigatory and intelligence records. Affording access and amendment rights could alert the record subject to the fact and nature of an investigation or the investigative interest of intelligence or law enforcement agencies; permit the subject to frustrate such investigation, surveillance or potential prosecution; compromise sensitive information classified in the interest of national security; identify a confidential source or disclose information which would reveal a sensitive investigative or intelligence technique; and endanger the health or safety of law enforcement personnel, confidential informants, and witnesses. In addition, affording subjects access and amendment rights would impose an impossible administrative burden to continuously reexamine investigations, analyses, and reports.
(3)From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible for intelligence or law enforcement agencies to know in advance what information about an encounter with a known or suspected terrorist will be relevant for the purpose of conducting an operational response. Relevance and necessity are questions of judgment and timing, and only after information is evaluated can relevance and necessity be established. In addition, information in the system of records may relate to matters under the investigative jurisdiction of another agency, and may not readily be segregated. Furthermore, information in these systems of records, over time, aid in establishing patterns of criminal activity that can provide leads for other law enforcement agencies.
(4)From subsections (e)(4)(G) and
(H)(publication of procedures for notifying subjects of the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection
(d)provisions regarding access and amendment and from the subsection
(f)requirement to promulgate agency rules. Nevertheless, the ODNI has published notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records.
(5)From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information. Additionally, exemption from this provision is necessary to protect the privacy and safety of witnesses and sources of information, including intelligence sources and methods and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records.
(6)From subsection
(f)(agency rules for notifying subjects to the existence of records about them, for accessing and amending records and for assessing fees) because the system is exempt from subsection
(d)provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject's access request. § 1701.22 Exemption of Office of the National Counterintelligence Executive (ONCIX) system of records.
(a)The ODNI exempts the following system of records from the requirements of subsections (c)(3); (d)(1), (2), (3), (4); (e)(1);
(e)(4)(G), (H), (I); and
(f)of the Privacy Act, to the extent that information in the system is subject to exemption pursuant to subsections (k)(1) and (k)(2) of the Act:
(1)ONCIX Counterintelligence Damage Assessment Records (ODNI/ONCIX-001).
(2)[Reserved]
(b)Exemptions from the particular subsections are justified for the following reasons:
(1)From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an investigative interest on the part of the ODNI as well as the recipient agency and could: result in release of properly classified national security or foreign policy information; compromise ongoing efforts to investigate a known or suspected terrorist; reveal sensitive investigative or surveillance techniques; or identify a confidential source. With this information, the record subject could frustrate counterintelligence measures; impede an investigation by destroying evidence or intimidating potential witnesses; endanger the physical safety of sources, witnesses, and law enforcement and intelligence personnel and their families; or evade apprehension or prosecution by law enforcement personnel.
(2)From subsections (d)(1), (2),
(3)and
(4)(record subject's right to access and amend records) because these provisions concern individual access to and amendment of counterterrorism, investigatory and intelligence records. Affording access and amendment rights could alert the record subject to the fact and nature of an investigation or the investigative interest of intelligence or law enforcement agencies; permit the subject to frustrate such investigation, surveillance or potential prosecution; compromise sensitive information classified in the interest of national security; identify a confidential source or disclose information which would reveal a sensitive investigative or intelligence technique; and endanger the health or safety of law enforcement personnel, confidential informants, and witnesses. In addition, affording subjects access and amendment rights would impose an impossible administrative burden to continuously reexamine investigations, analyses, and reports.
(3)From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible to know in advance what information will be relevant to evaluate and mitigate damage to the national security. Relevance and necessity are questions of judgment and timing, and only after information is evaluated can relevance and necessity be established. In addition, information in the system of records may relate to matters under the investigative jurisdiction of another agency, and may not readily be segregated. Furthermore, information in these systems of records, over time, aid in establishing patterns of criminal activity that can provide leads for other law enforcement agencies.
(4)From subsections (e)(4)(G) and
(H)(publication of procedures for notifying subjects to the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection
(d)provisions regarding access and amendment and from the subsection
(f)requirement to promulgate agency rules. Nevertheless, the ODNI has published notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records.
(5)From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information. Additionally, exemption from this provision is necessary to protect the privacy and safety of witnesses and sources of information, including intelligence sources and methods and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records.
(6)From subsection
(f)(agency rules for notifying subjects to the existence of records about them, for accessing and amending records and for assessing fees) because the system is exempt from subsection
(d)provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject's access request. § 1701.23 Exemption of Office of Inspector General
(OIG)systems of records.
(a)The ODNI exempts the following systems of records from the requirements of subsections (c)(3); (d)(1),(2),(3) and (4); (e)(1); (e)(4)(G),(H),(I); and
(f)of the Privacy Act to the extent that information in the system is subject to exemption pursuant subsections (k)(1) and (k)(5) of the Act:
(1)OIG Human Resources Records (ODNI/OIG-001).
(2)OIG Experts Contact Records (ODNI/OIG-002).
(b)Exemptions from the particular subsections are justified for the following reasons:
(1)From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an investigative interest on the part of the ODNI or recipient agency and could result in release of properly classified national security or foreign policy information.
(2)From subsections (d)(1), (2),
(3)and
(4)(record subject's right to access and amend records) because affording access and amendment rights could alert the record subject to the investigative interest of intelligence or law enforcement agencies or compromise sensitive information classified in the interest of national security. In the absence of a national security basis for exemption under subsection (k)(1), records in this system may be exempted from access and amendment pursuant to subsection (k)(5) to the extent necessary to honor promises of confidentiality to persons providing information concerning a candidate for position. Inability to maintain such confidentiality would restrict the free flow of information vital to a determination of a candidate's qualifications and suitability.
(3)From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible to establish relevance and necessity before all information is considered and evaluated in relation to an intelligence concern. In the absence of a national security basis for exemption under subsection (k)(1), records in this system may be exempted from the relevance requirement pursuant to subsection (k)(5) because it is not always possible to determine in advance what exact information may assist in determining the qualifications and suitability of a candidate for position. Seemingly irrelevant details, when combined with other data, can provide a useful composite for determining whether a candidate should be appointed.
(4)From subsections (e)(4)(G) and
(H)(publication of procedures for notifying subjects of the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection
(d)provisions regarding access and amendment and from the subsection
(f)requirement to promulgate agency rules. Nevertheless, the ODNI has published such a notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records.
(5)From subsection (e)(4)(I)(identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information, intelligence sources and methods and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records.
(6)From subsection
(f)(agency rules for notifying subjects to the existence of records about them, for accessing and amending records and for assessing fees) because the system is exempt from subsection
(d)provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject's access request.
(c)The ODNI exempts the following system of records from the requirements of subsections (c)(3) and (4); (d)(1),(2),(3),(4); (e)(1),(2),(3),(5),(8) and (12); and
(g)of the Privacy Act, to the extent that information in the system is subject to exemption pursuant to subsection (j)(2) of the Act. In addition, the following system of records is exempted from the requirements of subsections (c)(3); (d)(1),(2),(3)and (4); (e)(1); (e)(4)(G),(H)and (I); and
(f)of the Privacy Act, to the extent that information in the system is subject to exemption pursuant to subsections (k)(1) and (k)(2) of the Act.
(1)OIG Investigation and Interview Records (ODNI/OIG-003).
(2)[Reserved]
(d)Exemptions from the particular subsections are justified for the following reasons:
(1)From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an investigative interest on the part of the ODNI as well as the recipient agency and could: result in release of properly classified national security or foreign policy information; compromise ongoing efforts to investigate a known or suspected terrorist; reveal sensitive investigative or surveillance techniques; or identify a confidential source. With this information, the record subject could frustrate counterintelligence measures; impede an investigation by destroying evidence or intimidating potential witnesses; endanger the physical safety of sources, witnesses, and law enforcement and intelligence personnel and their families; or evade apprehension or prosecution by law enforcement personnel.
(2)From subsection (c)(4) (notice of amendment to record recipients) because the system is exempted from the access and amendment provisions of subsection (d).
(3)From subsections (d)(1), (2),
(3)and
(4)(record subject's right to access and amend records) because these provisions concern individual access to and amendment of counterterrorism, investigatory and intelligence records. Affording access and amendment rights could alert the record subject to the fact and nature of an investigation or the investigative interest of intelligence or law enforcement agencies; permit the subject to frustrate such investigation, surveillance or potential prosecution; compromise sensitive information classified in the interest of national security; identify a confidential source or disclose information which would reveal a sensitive investigative or intelligence technique; and endanger the health or safety of law enforcement personnel, confidential informants, and witnesses. In addition, affording subjects access and amendment rights would impose an impossible administrative burden to continuously reexamine investigations, analyses, and reports.
(4)From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible to know in advance what information will be relevant for the purpose of conducting an investigation. Relevance and necessity are questions of judgment and timing, and only after information is evaluated can relevance and necessity be established. In addition, information in the system of records may relate to matters under the investigative jurisdiction of another agency, and may not readily be segregated. Furthermore, information in these systems of records, over time, aid in establishing patterns of criminal activity that can provide leads for other law enforcement agencies.
(5)From subsection (e)(2) (collection directly from the individual) because application of this provision would alert the subject of a counterterrorism investigation, study or analysis to that fact, permitting the subject to frustrate or impede the activity. Counterterrorism investigations necessarily rely on information obtained from third parties rather than information furnished by subjects themselves.
(6)From subsection (e)(3) (provide Privacy Act Statement to subjects furnishing information) because the system is exempted from the (e)(2) requirement to collect information directly from the subject.
(7)From subsections (e)(4)(G) and
(H)(publication of procedures for notifying subjects of the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection
(d)provisions regarding access and amendment and from the subsection
(f)requirement to promulgate agency rules. Nevertheless, the ODNI has published notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records.
(8)From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information. Additionally, exemption from this provision is necessary to protect the privacy and safety of witnesses and sources of information, including intelligence sources and methods and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records.
(9)From subsection (e)(5) (maintain timely, accurate, complete and up-to-date records) because many of the records in the system are derived from other domestic and foreign agency record systems over which ODNI exercises no control. In addition, in collecting information for counterterrorism, intelligence, and law enforcement purposes, it is not possible to determine in advance what information is accurate, relevant, timely, and complete. With the passage of time and the development of additional facts and circumstances, seemingly irrelevant or dated information may acquire significance. The restrictions imposed by (e)(5) would limit the ability of intelligence analysts to exercise judgment in conducting investigations and impede development of intelligence necessary for effective counterterrorism and law enforcement efforts.
(10)From subsection (e)(8) (notice of compelled disclosures) because requiring individual notice of legally compelled disclosure poses an impossible administrative burden and could alert subjects of counterterrorism, law enforcement, or intelligence investigations to the previously unknown fact of those investigations.
(11)From subsection (e)(12) (public notice of matching activity) because, to the extent such activities are not otherwise excluded from the matching requirements of the Privacy Act, publishing advance notice in the **Federal Register** would frustrate the ability of intelligence analysts to act quickly in furtherance of analytical efforts.
(12)From subsection
(f)(agency rules for notifying subjects to the existence of records about them, for accessing and amending records and for assessing fees) because the system is exempt from the subsection
(d)provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject's access request.
(13)From subsection
(g)(civil remedies) to the extent that the civil remedies relate to provisions of 5 U.S.C. 552a from which this rule exempts the system. Subpart C—Routine Uses Applicable to More Than One ODNI System of Records § 1701.30 Policy and applicability.
(a)ODNI proposes the following general routine uses to foster simplicity and economy and to avoid redundancy or error by duplication in multiple ODNI systems of records and in systems of records established hereafter by ODNI or by one of its components.
(b)These general routine uses may apply to every Privacy Act system of records maintained by ODNI and its components, unless specifically stated otherwise in the System of Records Notice for a particular system. Additional general routine uses may be identified as notices of systems of records are published.
(c)Routine uses specific to a particular System of Records are identified in the System of Records Notice for that system. § 1701.31 General routine uses.
(a)Except as noted on Standard Forms 85 and 86 and supplemental forms thereto (questionnaires for employment in, respectively, “non-sensitive” and “national security” positions within the Federal government), a record that on its face or in conjunction with other information indicates or relates to a violation or potential violation of law, whether civil, criminal, administrative or regulatory in nature, and whether arising by general statute, particular program statute, regulation, rule or order issued pursuant thereto, may be disclosed as a routine use to an appropriate federal, state, territorial, tribal, local law enforcement authority, foreign government or international law enforcement authority, or to an appropriate regulatory body charged with investigating, enforcing, or prosecuting such violations.
(b)A record from a system of records maintained by the ODNI may be disclosed as a routine use, subject to appropriate protections for further disclosure, in the course of presenting information or evidence to a magistrate, special master, administrative law judge, or to the presiding official of an administrative board, panel or other administrative body.
(c)A record from a system of records maintained by the ODNI may be disclosed as a routine use to representatives of the Department of Justice or any other entity responsible for representing the interests of the ODNI in connection with potential or actual civil, criminal, administrative, judicial or legislative proceedings or hearings, for the purpose of representing or providing advice to: the ODNI; any staff of the ODNI in his or her official capacity; any staff of the ODNI in his or her individual capacity where the staff has submitted a request for representation by the United States or for reimbursement of expenses associated with retaining counsel; or the United States or another Federal agency, when the United States or the agency is a party to such proceeding and the record is relevant and necessary to such proceeding.
(d)A record from a system of records maintained by the ODNI may be disclosed as a routine use in a proceeding before a court or adjudicative body when any of the following is a party to litigation or has an interest in such litigation, and the ODNI, Office of General Counsel, determines that use of such records is relevant and necessary to the litigation: the ODNI; any staff of the ODNI in his or her official capacity; any staff of the ODNI in his or her individual capacity where the Department of Justice has agreed to represent the staff or has agreed to provide counsel at government expense; or the United States or another Federal agency, where the ODNI, Office of General Counsel, determines that litigation is likely to affect the ODNI.
(e)A record from a system of records maintained by the ODNI may be disclosed as a routine use to representatives of the Department of Justice and other U.S. Government entities, to the extent necessary to obtain advice on any matter within the official responsibilities of such representatives and the responsibilities of the ODNI.
(f)A record from a system of records maintained by the ODNI may be disclosed as a routine use to a Federal, state or local agency or other appropriate entities or individuals from which/whom information may be sought relevant to: a decision concerning the hiring or retention of an employee or other personnel action; the issuing or retention of a security clearance or special access, contract, grant, license, or other benefit; or the conduct of an authorized investigation or inquiry, to the extent necessary to identify the individual, inform the source of the nature and purpose of the inquiry, and identify the type of information requested.
(g)A record from a system of records maintained by the ODNI may be disclosed as a routine use to any Federal, state, local, tribal or other public authority, or to a legitimate agency of a foreign government or international authority to the extent the record is relevant and necessary to the other entity's decision regarding the hiring or retention of an employee or other personnel action; the issuing or retention of a security clearance or special access, contract, grant, license, or other benefit; or the conduct of an authorized inquiry or investigation.
(h)A record from a system of records maintained by the ODNI may be disclosed as a routine use to a Member of Congress or Congressional staffer in response to an inquiry from that Member of Congress or Congressional staffer made at the written request of the individual who is the subject of the record.
(i)A record from a system of records maintained by the ODNI may be disclosed to the Office of Management and Budget in connection with the review of private relief legislation, as set forth in Office of Management and Budget Circular No. A-19, at any stage of the legislative coordination and clearance process as set forth in the Circular.
(j)A record from a system of records maintained by the ODNI may be disclosed as a routine use to any agency, organization, or individual for authorized audit operations, and for meeting related reporting requirements, including disclosure to the National Archives and Records Administration for records management inspections and such other purposes conducted under the authority of 44 U.S.C. 2904 and 2906, or successor provisions.
(k)A record from a system of records maintained by the ODNI may be disclosed as a routine use to individual members or staff of Congressional intelligence oversight committees in connection with the exercise of the committees' oversight and legislative functions.
(l)A record from a system of records maintained by the ODNI may be disclosed as a routine use pursuant to Executive Order to the President's Foreign Intelligence Advisory Board, the President's Intelligence Oversight Board, to any successor organizations, and to any intelligence oversight entity established by the President, when the Office of the General Counsel or the Office of the Inspector General determines that disclosure will assist such entities in performing their oversight functions and that such disclosure is otherwise lawful.
(m)A record from a system of records maintained by the ODNI may be disclosed as a routine use to contractors, grantees, experts, consultants, or others when access to the record is necessary to perform the function or service for which they have been engaged by the ODNI.
(n)A record from a system of records maintained by the ODNI may be disclosed as a routine use to a former staff of the ODNI for the purposes of responding to an official inquiry by a Federal, state, or local government entity or professional licensing authority or facilitating communications with a former staff of the ODNI that may be necessary for personnel-related or other official purposes when the ODNI requires information or consultation assistance, or both, from the former staff regarding a matter within that person's former area of responsibility.
(o)A record from a system of records maintained by the ODNI may be disclosed as a routine use to legitimate foreign, international or multinational security, investigatory, law enforcement or administrative authorities in order to comply with requirements imposed by, or to claim rights conferred in, formal agreements and arrangements to include those regulating the stationing and status in foreign countries of Department of Defense military and civilian personnel.
(p)A record from a system of records maintained by the ODNI may be disclosed as a routine use to any Federal agency when documents or other information obtained from that agency are used in compiling the record and the record is relevant to the official responsibilities of that agency, provided that disclosure of the recompiled or enhanced record to the source agency is otherwise authorized and lawful.
(q)A record from a system of records maintained by the ODNI may be disclosed as a routine use to appropriate agencies, entities, and persons when: The security or confidentiality of information in the system of records has or may have been compromised; and the compromise may result in economic or material harm to individuals ( *e.g.* , identity theft or fraud), or harm to the security or integrity of the affected information or information technology systems or programs (whether or not belonging to the ODNI) that rely upon the compromised information; and disclosure is necessary to enable ODNI to address the cause(s) of the compromise and to prevent, minimize, or remedy potential harm resulting from the compromise.
(r)A record from a system of records maintained by the ODNI may be disclosed as a routine use to a Federal, state, local, tribal, territorial, foreign, or multinational agency or entity or to any other appropriate entity or individual for any of the following purposes: to provide notification of a serious terrorist threat for the purpose of guarding against or responding to such threat; to assist in coordination of terrorist threat awareness, assessment, analysis, or response; or to assist the recipient in performing authorized responsibilities relating to terrorism or counterterrorism.
(s)A record from a system of records maintained by the ODNI may be disclosed as a routine use for the purpose of conducting or supporting authorized counterintelligence activities as defined by section 401a(3) of the National Security Act of 1947, as amended, to elements of the Intelligence Community, as defined by section 401a(4) of the National Security Act of 1947, as amended; to the head of any Federal agency or department; to selected counterintelligence officers within the Federal government.
(t)A record from a system of records maintained by the ODNI may be disclosed as a routine use to a Federal, state, local, tribal, territorial, foreign, or multinational government agency or entity, or to other authorized entities or individuals, but only if such disclosure is undertaken in furtherance of responsibilities conferred by, and in a manner consistent with, the National Security Act of 1947, as amended; the Counterintelligence Enhancement Act of 2002, as amended; Executive Order 12333 or any successor order together with its implementing procedures approved by the Attorney General; and other provisions of law, Executive Order or directive relating to national intelligence or otherwise applicable to the ODNI. This routine use is not intended to supplant the other routine uses published by the ODNI. Dated: December 8, 2007. Ronald L. Burgess, Jr., Lieutenant General, USA, Director of the Intelligence Staff. [FR Doc. E7-25331 Filed 12-31-07; 8:45 am] BILLING CODE 3910-A7-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2007-1074, FRL-8504-7] Revisions to the California State Implementation Plan, Monterey Bay Unified Air Pollution Control District and San Joaquin Valley Air Pollution Control District AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve revisions to the Monterey Bay Unified Air Pollution Control District (MBUAPCD) and San Joaquin Valley Air Pollution Control District (SJVAPCD) portions of the California State Implementation Plan (SIP). Under authority of the Clean Air Act as amended in 1990 (CAA or the Act), we are proposing to approve local rules that address circumvention, reduction of animal matter, and volatile organic compound
(VOC)emissions from gasoline bulk storage tanks, gasoline filling stations, petroleum refinery equipment, and petroleum solvent dry cleaning. DATES: Any comments on this proposal must arrive by February 1, 2008. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2007-1074, by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the on-line instructions. • *E-mail: steckel.andrew@epa.gov.* • *Mail or deliver:* Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105. *Instructions:* All comments 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 Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through *http:// www.regulations.gov* or e-mail. *http://www.regulations.gov* is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. 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. *Docket:* The index to the docket for this action is available electronically at *http://www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Al Petersen, Permits Office (AIR-4), U.S. Environmental Protection Agency, Region IX,
(415)947-4118, *petersen.alfred@epa.gov.* SUPPLEMENTARY INFORMATION: This proposal addresses the approval of MBUAPCD Rules 415, 418, and 1002 and SJVAPCD Rules 4104, 4402, 4404, 4453, 4454, 4625, 4641, and 4672. In the Rules and Regulations section of this **Federal Register** , we are approving these local rules in a direct final action without prior proposal because we believe this SIP revision is not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action. Dated: November 16, 2007. Laura Yoshii, Acting Regional Administrator, Region IX. [FR Doc. E7-25100 Filed 12-31-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF THE INTERIOR Office of the Secretary 43 CFR Part 46 RIN 1090-AA95 Implementation of the National Environmental Policy Act
(NEPA)of 1969 AGENCY: Office of the Secretary, Interior. ACTION: Proposed rule; request for comments. SUMMARY: The Department of the Interior (Department) proposes to amend its regulations by adding a new part to codify its NEPA procedures currently in the Departmental Manual (DM). This proposed regulation contains Departmental policies and procedures for compliance with NEPA, Executive Order (E.O.) 11514, E.O. 13352 and the Council on Environmental Quality's
(CEQ)regulations. By converting the Departmental NEPA procedures from the DM to new regulations that are consistent with NEPA and the CEQ regulations, the Department intends to promote greater transparency in the NEPA process for the public and enhance cooperative conservation. DATES: Submit comments by March 3, 2008. ADDRESSES: You may submit comments on the rulemaking by any of the following methods. Please use the regulation identification number
(RIN)1090-AA95 as an identifier in your message. See also “Public availability of comments” under Procedural Requirements below. • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *E-mail: doi_nepa@contentanalysisgroup.com* and use the RIN 1090-AA95 in the subject line. • *Fax:* 801-397-2601. Identify with RIN 1090-AA95. • Mail comments to the Department of the Interior, NEPA Proposed Rule, C/O Bear West, 1584 S 500 W Ste 201, Woods Cross, UT 84010. Please reference RIN 1090-AA95 in your comments and also include your name and return address. FOR FURTHER INFORMATION CONTACT: Dr. Vijai N. Rai, Team Leader, Natural Resources Management; Office of Environmental Policy and Compliance; 1849 C Street, NW., Washington, DC 20240. Telephone: 202-208-6661. *E-mail: vijai_rai@ios.doi.gov* . SUPPLEMENTARY INFORMATION: Background and Need for the Proposed Rule CEQ regulations at 40 Code of Federal Regulations
(CFR)1507.3 require Federal agencies to adopt procedures as necessary to supplement CEQ's regulations implementing NEPA and to consult with CEQ during their development and prior to publication in the **Federal Register** . The regulation further encourages agencies to publish agency explanatory guidance for CEQ's regulations and agency procedures. The Department's procedures implementing NEPA as required by CEQ have been contained in chapter 516 of the DM. We revised these procedures and published the revisions in the **Federal Register** on March 8, 2004 (69 FR 10866) and June 6, 2005 (70 FR 32840). We have now decided to publish the procedures as rules to be codified in the CFR. This proposed regulation supplements the CEQ regulations and must be used in conjunction with those regulations. The bureaus of the Department are required to use this regulation when meeting their responsibilities under NEPA. This proposed regulation meets the intent of 40 CFR 1507.3 by placing agency-implementing procedures in a regulatory framework. We believe placing agency explanatory guidance (as distinguished from agency implementing procedures) into the DM, Environmental Statement Memoranda (ESM), which are Departmental guidance documents, and bureaus' NEPA handbooks, will facilitate quicker agency responses to new ideas and information, procedural interpretations, training needs, and editorial changes. Reasons for an Improved Environmental Analysis Process This proposed regulation is the culmination and natural progression of work begun in 2002 to improve our NEPA compliance process. Since the Department last updated its NEPA procedures, CEQ has issued guidance the Department wishes to incorporate in its regulations. The concepts described below are currently used, but there are no explicit provisions in the current procedures. This proposed regulation provides further guidance on NEPA by:
(1)Integrating best practices elements described in the series of ESMs that were issued by the Department in 2003 and finalized in the DM in March 2004; and
(2)addressing new NEPA-related policy issues. Specifically, they provide for, among others, greater public and stakeholders' participation in the NEPA process, collaborative NEPA planning, conflict avoidance, and use of adaptive management. Finally, this proposal will allow for better integration of NEPA procedures and documentation into current Departmental decision-making processes, including collaborative and incremental decision-making. In 2002, the Department undertook a review of its NEPA practices. This review was done at the practitioner level to obtain best practices in the field. In addition, the Department held four regional listening sessions open to the public, to assist in the identification of best NEPA practices that could be applied across the Department. Following these public listening sessions, the Department promulgated best practices in two phases: first, through the issuance of five ESMs in 2003 (directives to bureaus on best practices); and second, through finalizing those NEPA best practices in the DM in March 2004. The five NEPA best practices that were first addressed in ESMs were: ESM 03-3, Procedures for Implementing Tiered and Combined Analyses (http://oepc.doi.gov/ESM/ESM03%2D3%2Epdf) Bureaus need to determine the sufficiency of existing environmental analyses. If an existing analyses is found to be sufficient, those documents should be cited in the Record of Decision
(ROD)without doing additional and possibly duplicate analysis. ESM 03-4, Procedures for Implementing Public Participation and Community-Based Training (http://oepc.doi.gov/ESM/ESM03%2D4%2Epdf) Public participation is the involvement, as early as possible, in the NEPA process of persons and organizations having an interest in any Departmental activity, which must meet the requirements of NEPA. Public participation also includes the proactive efforts of Departmental personnel to locate and involve the public. ESM 03-5, Procedures for Implementing Integrated Analyses in National Environmental Policy Act
(NEPA)Process (http://oepc.doi.gov/ESM/ESM03%2D5%2Epdf) The Department should integrate analyses using a single NEPA process to enable several agencies to satisfy multiple environmental requirements by conducting concurrent rather than consecutive analyses. ESM 03-6, Procedures for Implementing Adaptive Management Practices (http://oepc.doi.gov/ESM/ESM03%2D6%2Epdf) Adaptive management is a system of management practices based on clearly identified outcomes, monitoring to determine if management actions are meeting outcomes, and, if not, facilitating management changes that will best ensure that outcomes are met or to re-evaluate the outcomes. Although not explicitly mentioned in the CEQ regulations, adaptive management can be considered as part of a proposed action. The CEQ determined that the adaptive management provisions in the DM, which are now included in this proposed regulation, are in conformity with NEPA and the CEQ regulations. ESM 03-7, Procedures for Implementing Consensus-Based Management in Agency Planning and Operations (http://oepc.doi.gov/ESM/ESM03%2D7%2Epdf) Under this proposed rule, when feasible and practicable, the community alternative should be designated as the bureau's preferred alternative in the NEPA process, so long as a consensus exists within the community for support of that alternative. This designation is also subject to statutory, regulatory, and policy constraints. As a practical consideration, “consensus” is ultimately determined by the Responsible Official. Following the issuance of these ESMs, the Department undertook the process of incorporating these concepts into its DM. This process included a notice and comment period for the public. Following that public comment period, the Department finalized those procedures (516 DM—Proposed Revised Procedures, September 4, 2003, 68 FR 52595; Final, March 8, 2004, 69 FR 10866) In 2005, the Department, through another public notice and comment process (516 DM 2.5—Proposed, March 18, 2005, 70 FR 13203; Final, June 6, 2005, 70 FR 32840) implemented a policy requiring that eligible Federal, State, Tribal, and local entities be invited to be cooperating agencies to assist in the preparation of any Environmental Impact Statement (EIS). Also in 2005, the Department began a Management Planning and NEPA Modernization Blueprint. This blueprint recommended Departmental functional requirements to be implemented in an automated Interior Land Management Planning System. Throughout this time frame, the Department has continually looked for ways to improve its NEPA compliance. For example, we've worked with the Department of Agriculture, U.S. Forest Service to make our procedures more consistent whenever possible. At the 2005 White House Conference on Cooperative Conservation (http://cooperativeconservation.gov/conference805home.html), the Department heard many success stories that involved various levels of government working with the public and private sectors to protect and enhance the environment. Many of these examples addressed issues we had dealt with in our previous DM changes. During the Listening Sessions (http://cooperativeconservation.gov/sessions/index.html), held as a follow up to the Conference, we heard many of the same concerns regarding NEPA compliance as we had under our own review and reviews with the Forest Service. Almost 30 years ago CEQ stated in its preamble to the final NEPA implementing regulations (43 FR 55978, November 29, 1978) that the EIS has “tended to become an end in itself, rather than a means to making better decisions.” CEQ noted further: “One serious problem with the administration of NEPA has been the separation between an agency's NEPA process and its decision-making process. In too many cases bulky EISs have been prepared and transmitted but not used by the decision-maker.” The innovation at that time was a new requirement for a ROD to show “how the EIS was used in arriving at the decision.” At that time, CEQ broadened the focus from emphasis on a single document EIS to “emphasize the entire NEPA process, from early planning through assessment and EIS preparation through decisions and provisions for follow-up.” Today, after receiving comments on a draft EIS, agencies prepare a final EIS and document their decision in a ROD, tying the analysis from the EIS to the final agency decision. Almost 20 years later a CEQ report, “The National Environmental Policy Act—A Study of Its Effectiveness After Twenty-five Years” (January 1997; *http://ceq.eh.doe.gov/nepa/nepa25fn.pdf* ) stated that “frequently NEPA takes too long and costs too much, agencies make decisions before hearing from the public, documents are too long and technical for many people to use” and according to Federal agency NEPA liaisons, “the EIS process is still frequently viewed as merely a compliance requirement rather than as a tool to effect better decision-making. Because of this, millions of dollars, years of time, and tons of paper have been spent on documents that have little effect on decision-making.” The report points out that “some citizens' groups and concerned individuals view the NEPA process as largely a one-way communications track that does not use their input effectively” and “when they are invited to a formal scoping meeting to discuss a well-developed project about which they have heard little, they may feel they have been invited too late in the process.” Finally, the report states “some citizens complain that their time and effort spent providing good ideas is not reflected in changes to proposals.” As a part of its continuing efforts to streamline NEPA, CEQ established a NEPA Task Force in 2002 to review current NEPA implementation practices and procedures to determine opportunities to improve and modernize the NEPA process. The Task Force prepared a report in 2003 entitled “Modernizing NEPA Implementation,” ( *http://ceq.eh.doe.gov/ntf/report/index.html* ) where a number of recommendations were made to improve and modernize the NEPA process. CEQ continues to issue guidance based on the Modernizing NEPA Implementation Report. The Department continues to be an active participant in this effort. A 2005 National Environmental Conflict Resolution Advisory Committee (NECRAC) Report chartered by the U.S. Institute for Environmental Conflict Resolution ( *http://www.ecr.gov/necrac/reports.htm* ) of the Morris K. Udall Foundation reflected further on the state of the NEPA process 27 years after CEQ published its regulations and recommended furthering the evolution of making procedural requirements under section 102 of NEPA less an end in themselves and more a means to fulfill the policies set out in section 101. The report calls for improvements in the “traditional model for NEPA implementation” where “agencies announce their plans, share their analyses of potential impacts of a range of options, solicit public comment, make decisions, deal with the fallout, if any, and move on to the next project.” This model results in agency decisions “based on a collection of views and interests” but “generally not a collective decision.” The report goes on to state that while not a failure, the traditional model for NEPA “does not take full advantage of the many strengths of section 101.” The NECRAC recognized that “Americans expect to be able to work things out and make things better over time. It is not inevitable, and it is clearly not desirable, that society's ability to constructively address and resolve conflicts should languish or fail to adapt to changing times. The current state of environmental and natural resource decision-making is dominated by the traditional model, which too often fails to capture the breadth and quality of the values and purposes of NEPA.” The NECRAC called for Federal decision-making that “enables interested parties” to “engage more effectively in the decision-making process” where “interested parties are no longer merely commenters on a Federal proposal, but act as partners in defining Federal plans, programs, and projects.” The 2005 NECRAC Report notes many examples of the Federal government placing an increased emphasis on “cooperating agencies” (CEQ Memorandum for Heads of Federal Agencies: Designation of Non-Federal Agencies to be Cooperating Agencies in Implementing the Procedural Requirements of NEPA, July 28, 1999, *http://ceq.eh.doe.gov/nepa/regs/ceqcoop.pdf;* and CEQ Memorandum for Heads of Federal Agencies: Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act, January 30, 2002, *http://ceq.eh.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html* ), “cooperative conservation” (E.O. 13352 on Facilitation of Cooperative Conservation, August 26, 2004), environmental conflict resolution (CEQ & OMB Memorandum on Environmental Conflict Resolution, November 28, 2005, *http://ceq.eh.doe.gov/nepa/regs/OMB_CEQ_Joint_Statement.pdf* ), and “collaboration” (Background and Other Cooperative Conservation Activities, *http://www.doi.gov/initiatives/conservation2.html* ) in agency planning, NEPA analysis, and decision-making. As the Department integrates the NEPA process into its collaborative and cooperative decision-making process, the Department needs documentation that reflects the way interactive and incremental decision-making occurs. There is a need to ensure that NEPA documents are used in “arriving at the decision.” In order to do this, Department NEPA procedures need to reflect a more integrated process. As the NECRAC Report points out, there continues to be focus on preparing NEPA documents such as an EIS or Environmental Assessment
(EA)for litigation rather than to facilitate an informed decision process. The proposed NEPA documentation requirements are intended to enable interested parties to engage more effectively in the decision-making process. The agency is proposing new NEPA procedures to allow content and circulation requirements for environmental documents to reflect how agency decisions actually occur, especially with more emphasis on cooperation and collaboration. This proposed regulation will help the Department's bureaus better document environmental impacts of proposed actions and their alternatives, and facilitate development of an EIS that evolves as the decision evolves and therefore can be used throughout the entire NEPA process. Subsequent detailed statements could document changes to the proposal, its alternative(s), and the environmental effects to reflect the on-going evolution to a final Department decision while keeping the Responsible Official and interested parties informed. The EIS would then be used as a tool to foster collaborative and incremental decision-making processes. The record would reflect a history of how the detailed statement was used in collaboration and incremental decision-making, and the final draft and final EISs would address a more narrowly focused Department action for a final decision. While this proposed regulation does not require a decision to be made collaboratively, it does allow the Department to meet the procedural requirements of section 102
(2)of NEPA while fostering fulfillment of the Act's purpose in section 101. The proposed NEPA procedures designed to allow for better alignment of an EIS with Department decision-making include:
(1)Allowing proposals and alternative(s) to be explored and modified throughout the NEPA process (46.415(b)(2)); and
(2)allowing the circulation of multiple preliminary detailed statement(s) without filing requirements (46.415(c)(2)). The intent is to use environmental information effectively by multiple parties during the NEPA process rather than only at distinct comment periods for a draft and final impact statement. This is to allow interested parties to inform Department decision-making as they regularly exchange and discuss issues; differences; and necessary environmental, social, and economic effects analyses while alternatives are explored, evaluated, and modified throughout the NEPA process. The intent is to focus on a process and the appropriate disclosure outlined in section 102 of NEPA to promote the Act's purposes. This proposed regulation is intended to implement fully the intent and spirit of the E.O. 13352 on Facilitation of Cooperative Conservation. This E.O. was issued specifically to ensure that Federal agencies implement laws relating to the environment and natural resources in a manner that promotes cooperation amongst interested parties, with emphasis on appropriate inclusion of local participation in Federal decision-making. As a result, the Federal government has placed increasing emphasis on “cooperating agencies,” “cooperative conservation,” environmental conflict resolution, and “collaboration” in agency planning, NEPA analysis, and decision-making. The ongoing public involvement and collaborative processes encouraged and practiced in the Department and other agencies today can benefit from more expressed flexibility than the agency NEPA procedures currently encourage. Thus, these proposed changes to our NEPA procedures are intended to provide the Department, in cooperation with other Federal, State, and local agencies, Tribes, and other interested parties greater flexibility to meet the intent of NEPA through the procedural provisions of section 102(2) of NEPA. As an example, this proposed regulation allows incremental alternative development through scoping where the agency together with interested and affected members of the public are given the opportunity to develop alternatives. As a part of the conversion of the Department's NEPA procedures from 516 DM to the CFR, a number of key changes will be made. This proposed regulation: • Clarifies actions subject to NEPA section 102(2) by locating all relevant CEQ guidance in one place. • Amends current direction so that immediate emergency responses do not require documentation under the CEQ regulations or NEPA section 102(2). The Responsible Official must assess and minimize potential environmental damage to the extent consistent with protecting life, property, and important resources. • Incorporates CEQ guidance language that states that a past action must be “relevant” in illuminating or predicting direct and indirect effects of a proposed action when conducting cumulative effects analysis. • Clarifies that alternatives, including the proposed action, may be modified through an incremental process if modifications are analyzed and documented. • Clarifies that the agency has discretion to determine, on a case-by-case basis, how to involve the public in the preparation of EAs and whether an EA will be published in draft for public comment. • Clarifies that adaptive management strategies may be incorporated into alternatives, including the proposed action. • Incorporates language from the statute and CEQ guidance that states EAs need only analyze the proposed action if there are no unresolved conflicts concerning alternative uses of available resources. This proposed regulation is organized under subparts A through E, covering the material in 516 DM Chapters 1 through 6. The Department did not include 516 DM Chapter 7 in this proposed regulation because it provides guidance on review of environmental documents and project proposals prepared by other Federal agencies. Bureau-specific NEPA implementing procedures in 516 DM Chapters 8-15 continue to be available for their respective use. This proposed regulation does not include sections in the DM that generally provide guidance to bureaus. This guidance will be addressed separately in bureaus' NEPA handbooks or in other Departmental documents such as 516 DM and ESMs. The following paragraphs contain a section-by-section analysis of key proposed changes under each subpart from those currently in the 516 DM procedures. The Department has highlighted key changes, including new sections, under each subpart so that commenters can focus on the specific changes proposed by the Department in this proposed regulation. Section-by-Section Analysis of Proposed Changes Subpart A: General Information *Section 46.30 Definitions.* This section supplements the terms found in the CEQ regulations and adds several new definitions. The terms affected are the following: Adaptive management; Bureau; Community-based training; Controversial; Environmental Statement Memoranda; Environmentally preferable alternative; Preliminary EIS; Reasonably foreseeable future action; and Responsible Official. Subpart B: Protection and Enhancement of Environmental Quality We removed portions of 516 DM Chapter 1 that address purely Departmental processes. This information will be retained in the DM or will be issued as additional guidance by the Office of Environmental Policy and Compliance. This subpart includes the following sections: *Section 46.100 Federal action subject to the procedural requirements of NEPA.* This section provides clarification on when a proposed action is subject to the procedural requirements of NEPA. *Section 46.105 Using a contractor to prepare environmental documents.* This section explains how bureaus may use a contractor to prepare any environmental document in accordance with the standards of 40 CFR 1506.5. *Section 46.110 Using consensus-based management.* This section incorporates consensus-based management as part of the NEPA planning process. *Section 46.113 Scope of the analysis.* This section addresses the relationships between connected, cumulative, and similar actions and direct, indirect and cumulative impacts. *Section 46.115 Consideration of past actions in the cumulative effects analysis.* This section incorporates CEQ guidance issued on June 24, 2005, that clarifies how past actions should be considered in a cumulative effects analysis. *Section 46.120 Using existing environmental analyses.* This section explains how to incorporate existing environmental analysis into the analysis being prepared. *Section 46.125 Incomplete or unavailable information.* This section clarifies that the overall costs of obtaining information referred to in 40 CFR 1502.22 are not limited to the estimated cost of obtaining information unavailable at the time of the EIS, but can include other costs such as social costs that are more difficult to monetize. Specifically the Department requests comments on whether to provide guidance on how to incorporate non-monetized social costs into its determination of whether the costs of incomplete or unavailable information are exorbitant. The Department also requests comments on what non-monetized social costs might be appropriate to include in this determination; e.g., social-economic and environmental (including biological) costs of delay in fire risk assessments for high risk fire-prone areas. *Section 46.130 Mitigation measures in analyses.* This section clarifies how mitigation measures and environmental best management practices are to be incorporated into and analyzed as part of the proposed action and its alternatives. *Section 46.135 Using incorporation by reference.* This section establishes regulations for incorporating by reference. *Section 46.140 Using tiered documents.* This section clarifies the use of tiering. The Department is considering developing more specific provisions as to the use of tiering, and invites public comment on this issue. For instance, an EA prepared in support of an individual action can be tiered to a programmatic or other broader EIS. The Department is considering under what conditions a FONSI may be reached for the individual action on the basis of such a tiered EA, if significant effects noted in that EA have already been disclosed and analyzed in the EIS to which the EA is tiered. The FONSI, in such circumstances would be, in effect, a finding of no significant impact other than those already disclosed and analyzed in the EIS to which the EA is tiered. *Section 46.145 Using adaptive management.* This section incorporates adaptive management as part of the NEPA planning process. *Section 46.150 Emergency responses.* This section clarifies that Responsible Officials can take immediate actions in response to the immediate effects of emergencies necessary to mitigate harm to life, property, or important resources without complying with the procedural requirements of NEPA, the CEQ regulations, or this proposed regulation. Furthermore, Responsible Officials can take urgent actions to respond to the immediate effects of an emergency when there is not sufficient time to comply with the procedural requirements of NEPA, the CEQ regulations, or this proposed regulation by consulting with the Department (and CEQ in cases where the response action is expected to have significant environmental impacts) about alternative arrangements. *Section 46.155 Consultation, coordination, and cooperation with other agencies and organizations.* This section describes the use of procedures to consult, coordinate, and cooperate with relevant State, local, and tribal governments, other bureaus, and Federal agencies concerning the environmental effects of Department plans, programs, and activities. *Section 46.160 Limitations on actions during the NEPA analysis process.* This section incorporates guidance to aid in fulfilling the requirements of 40 CFR 1506.1. *Section 46.165 Ensuring public involvement.* This section incorporates public information and involvement requirements for Departmental proposed actions that have potential environmental impacts. *Section 46.170 Environmental effects abroad of major Federal actions.* This section describes procedures the bureaus must follow in implementing E.O. 12114, which addresses the United States government's exclusive and complete determination of the procedural and other proposed actions to be taken by Federal agencies to further the purpose of NEPA, with respect to the environment outside the United States, its territories, and possessions. Subpart C: Initiating the NEPA Process In the conversion from 516 DM 2 to 43 CFR Part 46, Subpart C, we have restructured the Department's requirements for initiating the NEPA process. We have put into regulation the essential parts of the NEPA process that are unique to the Department and which require further clarification of the CEQ regulations. This proposed regulation clarifies the requirements for applying NEPA early, using categorical exclusions (CXs), designating lead agencies, determining eligible cooperating agencies, implementing the Department's scoping process, and adhering to time limits for the NEPA process. *Section 46.200 Applying NEPA early.* This section emphasizes early consultation and coordination with Federal, State, local, and Tribal entities and with interested private parties whenever practical and feasible. *Section 46.205 Actions categorically excluded from further NEPA review.* This section provides Department-specific guidance on the use of CXs. *Section 46.210 Listing of Departmental CXs.* This section includes a listing of the Department's CXs (currently 516 DM Chapter 2, Appendix B-1). This section includes the same number of CXs as were in the DM and the wording in the CXs is essentially unchanged. These CXs were each published for public comment prior to inclusion in the DM. There is one change in § 46.210(i), which replaces 516 DM Chapter 2, Appendix B-1, Number 1.10, correcting a typographical error. The phase “ * * * technical or procedural nature; or * * *” from 516 DM as it existed in 1984 was inadvertently changed in 2004 in 516 DM to read “ * * * technical or procedural nature; and * * *”. We have corrected this error because there are certain circumstances where NEPA does not apply. For example, guidance to applicants for transferring funds electronically to the Federal Government is an action not subject to NEPA. The CXs are in paragraphs
(a)through (l). *Section 46.215 CXs: Extraordinary circumstances.* This section contains a listing of the Department's CXs: Extraordinary Circumstances (currently 516 DM Chapter 2, Appendix B-2). This section includes the same number of CXs: Extraordinary Circumstances as were in the DM and the wording in the CXs: Extraordinary Circumstances is essentially unchanged. Similarly to the listing of CXs, each of the Extraordinary Circumstances was published for public comment prior to inclusion in the DM. The CXs: Extraordinary Circumstances are in paragraphs
(a)through (l). *Section 46.220 How to designate lead agencies.* This section provides specific detail regarding the selection of lead agencies. *Section 46.225 How to select cooperating agencies.* This section establishes procedures for selecting cooperating agencies and determining the roles of non-Federal agencies, such as tribal governments, and the further identification of eligible governmental entities for cooperating agency relationships. Criteria for identifying, and procedures for defining, the roles of cooperating agencies and the specific requirements to be carried out by cooperators in the NEPA process are set forth in this section. *Section 46.230 Role of cooperating agencies in the NEPA process.* This section provides specific detail regarding the responsibilities of cooperating agencies. *Section 46.235 NEPA scoping process.* This section discusses the use of NEPA's scoping requirements to engage the public in collaboration and consultation for the purpose of identifying concerns, potential impacts, possible alternatives, and interdisciplinary considerations. The regulatory language encourages the use of communication methods for a more efficient and proactive approach to scoping. *Section 46.240 Establishing time limits for the NEPA process.* The section requires bureaus to establish time limits to make the NEPA process more efficient. Subpart D: Environmental Assessments In the conversion from 516 DM Chapter 3 to 43 Part 46 Subpart D, we have written this proposed regulation to incorporate procedural changes, expand upon existing procedures, give greater discretion and responsibilities to bureaus, and provide clarity in the EA process. *Section 46.300 Purpose of an EA and when it must be prepared.* This section clarifies that the action being analyzed is a “proposed” action. It expands upon the purpose and clarifies when to prepare an EA. *Section 46.305 Public involvement in the EA process.* This section incorporates procedural changes and differentiates the requirements for public involvement in the EA and EIS processes. This section requires bureaus to provide notice when they are proposing to undertake an action but gives bureaus discretion to determine the format for providing opportunities for public involvement. It has been expanded to give bureaus the discretion to provide cooperating agency status for EAs. It specifies that the publication of a draft EA for public comment is not always required. *Section 46.310 Contents of an EA.* This section establishes new language outlining what information must be included in an EA. It describes the requirements for alternatives, if any, and provides for incorporating adaptive management strategies in alternatives. Sections on tiered analysis, from 516 DM Chapter 3, are found in subpart B of this proposed regulation since this information pertains to both EISs and EAs. *Section 46.315 How to format an EA.* This section provides clarification on the EA format. *Section 46.320 Adopting EAs prepared by another agency, entity, or person.* In this section, the term “and other program requirements” has been added to the compliance stipulations. It also expands the requirements of the Responsible Official in adopting an EA. *Section 46.325 Conclusion of the EA process.* This section has been added to outline the possible conclusions of the EA process and to clarify the responsibilities of bureaus in the documentation of such conclusions. Subpart E: Environmental Impact Statements The language from 516 DM Chapter 4 that simply reiterates the CEQ regulations is not included in subpart E of this proposed regulation. These DM sections are: statutory requirements, cover sheet, summary, purpose and need, appendix, methodology and scientific accuracy, proposals for legislation, and time periods. Sections on tiering, incorporation by reference, incomplete or unavailable information, adaptive management, and contractor prepared environmental documents, from 516 DM Chapter 4 are found in subpart B of this proposed regulation since this information pertains to EISs and EAs. The term “environmentally preferred alternative” is found in the definitions, subpart A. This phrase expands on the definition as currently exists in 516 DM 4.10(A)(5). This proposed regulation incorporates procedural changes, clarifies the extent of discretion and responsibility that may be exercised by bureaus and provides clarity in the EIS process. *Section 46.400 Timing of EIS development.* This section provides specific detail regarding when an EIS must be prepared. The Department is considering developing more specific provisions as to the timing of EIS preparation, and invites public comment on this issue. For example, courts have stated that NEPA requires an agency to complete its evaluation of the environmental effects before making its decision, which is prior to the point of commitment to any action which results in an irreversible and irretrievable commitment of resources. Specifically, we are seeking comments with respect to whether guidance should be developed to assist the Responsible Official toward identifying the point prior to the decision. We are also soliciting comments on whether it would be helpful to include in paragraph
(a)examples of a major Federal action significantly affecting the quality of the human environment. *Section 46.405 Remaining within page limits.* This section encourages bureaus to keep EISs within the page limits described in the CEQ regulations using incorporation by reference and tiering. *Section 46.415 EIS format.* This section establishes an alternative EIS format. This section also provides direction for the development of alternatives, establishes language on the documentation of environmental effects with a focus on NEPA statutory requirements, and provides direction for circulating and filing the draft and final EIS. *Section 46.420 Terms used in an EIS.* This section describes terms that are commonly used to describe concepts or activities in an EIS, including:
(a)Statement of purpose and need,
(b)Reasonable alternatives,
(c)Range of alternatives,
(d)Proposed action,
(e)Preferred alternative, and
(f)No action alternative. *Section 46.425 Identification of the preferred alternative in an EIS.* This section clarifies when the preferred alternative must be identified. *Section 46.430 Environmental review and consultation requirements.* This section establishes procedures for an EIS that also addresses other environmental review requirements and approvals. It should be noted that this section allows for the completion of the NEPA analysis prior to obtaining all permits. However, if the terms of the permit are outside of the scope analyzed, additional NEPA analysis will be required. *Section 46.435 Inviting comments.* This section requires bureaus to request comments from Federal, State, and local agencies, or tribal governments, and the public at large. This section also clarifies that bureaus do not have to delay a final EIS because they have not received comments. *Section 46.440 Eliminating duplication with State and local procedures.* This section allows a State agency to jointly prepare an EIS, if applicable. *Section 46.445 Preparing a legislative EIS.* This section ensures that a legislative EIS is included as a part of the formal transmittal of a legislative proposal to the Congress. *Section 46.450 Identifying the environmentally preferable alternative.* This section provides for identifying the environmentally preferable alternative in the ROD. Procedural Requirements Regulatory Planning and Review (E.O. 12866) The Office of Management and Budget
(OMB)has determined that this rule:
(1)Is not an economically significant action because it will not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor state or local governments.
(2)Will not interfere with an action taken or planned by another agency.
(3)Will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs.
(4)Is a significant rulemaking action subject to OMB review because of the extensive interest in Department planning and decision making relating to NEPA. In accordance with the Office of Management and Budget
(OMB)Circular A-4, “Regulatory Analysis,” the Department has conducted a cost/benefit analysis. The analysis compared the costs and benefits associated with the current condition of having Departmental implementing procedures combined with Departmental explanatory guidance in the DM and the proposed condition of having implementing direction in regulation and explanatory guidance in the DM. Many benefits and costs associated with the proposed rule are not quantifiable. Some of the benefits of this rule include collaborative and participatory public involvement to more fully address public concerns, timely and focused environmental analysis, flexibility in preparation of environmental documents, and improved legal standing. These will be positive effects of the new rule. Moving NEPA procedures from the DM to the CFR is expected to provide a variety of potential beneficial effects. This rule would meet the requirements of 40 CFR 1507.3 by placing Department's implementing procedures in their proper regulatory position. Maintaining Departmental explanatory guidance in directives would facilitate timely agency responses to new ideas and information, procedural interpretations, training needs, and editorial changes to addresses and internet links to assist bureaus when implementing the NEPA process. Finally, the proposed changes to the Department NEPA procedures are intended to provide the Department specific options to meet the intent of NEPA through collaboration, the establishment of incremental alternative development, and the use of adaptive management principles. Thus, while no single effect of this proposed rule creates a significant quantifiable improvement, the benefits outlined above taken together create the potential for visible improvements in the Department's NEPA program. Further discussion of the cost-benefits associated with the proposed regulation is contained in the economic analysis which is incorporated in the administrative record for this proposed rulemaking and may be accessed on the Department's Office of Environmental Policy and Compliance Web site located at: *http://www.doi.gov/oepc.* Regulatory Flexibility Act The Department certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). This document provides the Department with policy and procedures under NEPA and does not compel any other party to conduct any action. Small Business Regulatory Enforcement Fairness Act (SBREFA) This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule: a. Does not have an annual effect on the economy of $100 million or more. As explained above, this rule will not have an annual effect on the economy of $100 million or more and is expected to have no significant economic impacts. b. Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, Tribal, or local government agencies; or geographic regions. Compliance with NEPA and supplementing the CEQ regulations will not affect costs or prices. 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. Compliance with NEPA and supplementing CEQ regulations in this rule should have no effects, adverse or beneficial, on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign based enterprises. Unfunded Mandates Reform Act Under Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Department has assessed the effects of this proposed rule on State, local, and tribal governments and the private sector. This proposed rule does not compel the expenditure of $100 million or more by any State, local, or tribal government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required. Takings (E.O. 12630) This proposed rule has been analyzed in accordance with the principles and criteria contained in E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and it has been determined that the proposed rule does not pose the risk of a taking of Constitutionally protected private property. Federalism (E.O. 13132) The Department has considered this proposed rule under the requirements of E.O. 13132, Federalism. The Department has concluded that the proposed rule conforms with the federalism principles set out in this E.O.; will not impose any compliance costs on the States; and will not have substantial direct effects on the States or the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Department has determined that no further assessment of federalism implications is necessary. Civil Justice Reform (E.O. 12988) This rule complies with the requirements of E.O. 12988. Specifically, this rule:
(a)Does not unduly burden the judicial system;
(b)Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity, and be written to minimize litigation; and
(c)Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards. Consultation With Indian Tribes (E.O. 13175) In accordance with E.O. 13175 of November 6, 2000, and 512 DM 2, we have assessed this document's impact on Tribal trust resources and have determined that it does not directly affect Tribal resources since it describes the Department's procedures for its compliance with NEPA. Paperwork Reduction Act This rule does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB form 83-I is not required. National Environmental Policy Act The CEQ does not direct agencies to prepare a NEPA analysis or document before establishing agency procedures that supplement the CEQ regulations for implementing NEPA. Agency NEPA procedures are procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of NEPA analysis is required for a particular proposed action. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The determination that establishing agency NEPA procedures does not require NEPA analysis and documentation has been upheld in *Heartwood, Inc.* v. *U.S. Forest Service,* 73 F. Supp. 2d 962, 972-73 (S.D. III. 1999), *aff'd* 230 F.3d 947. 954-55 (7th Cir. 2000). Data Quality Act In developing this rule we did not conduct or use a study requiring peer review under the Data Quality Act (Pub. L. 106-554). Effects on the Energy Supply (E.O. 13211) This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required. Clarity of This Proposed Regulation We are required by E.O.s 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: —Be logically organized; —Use the active voice to address readers directly; —Use clear language rather than jargon; —Be divided into short sections and sentences; and —Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments as instructed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you think lists or tables would be useful, etc. 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 43 CFR Part 46 Environmental protection, EISs. James E. Cason, Associate Deputy Secretary. For the reasons given in the preamble, the Office of the Secretary proposes to add a new part 46 to Subtitle A of title 43 of the Code of Federal Regulations to read as follows: PART 46—IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 Sec. Subpart A—General Information 46.10 Purpose of this part. 46.20 How to use this part. 46.30 Definitions. Subpart B—Protection and Enhancement of Environmental Quality 46.100 Federal action subject to the procedural requirements of NEPA. 46.105 Using a contractor to prepare environmental documents. 46.110 Using consensus-based management. 46.113 Scope of the analysis. 46.115 Consideration of past actions in the cumulative effects analysis. 46.120 Using existing environmental analyses. 46.125 Incomplete or unavailable information. 46.130 Mitigation measures in analyses. 46.135 Using incorporation by reference. 46.140 Using tiered documents. 46.145 Using adaptive management. 46.150 Emergency responses. 46.155 Consultation, coordination, and cooperation with other agencies and organizations. 46.160 Limitations on actions during the NEPA analysis process. 46.165 Ensuring public involvement. 46.170 Environmental effects abroad of major Federal actions. Subpart C—Initiating the NEPA Process 46.200 Applying NEPA early. 46.205 Actions categorically excluded from further NEPA review. 46.210 Listing of Departmental CXs. 46.215 CXs: Extraordinary circumstances. 46.220 How to designate lead agencies. 46.225 How to select cooperating agencies. 46.230 Role of cooperating agencies in the NEPA process. 46.235 NEPA scoping process. 46.240 Establishing time limits for the NEPA process. Subpart D—Environmental Assessments 46.300 Purpose of an EA and when it must be prepared. 46.305 Public involvement in the EA process. 46.310 Contents of an EA. 46.315 How to format an EA. 46.320 Adopting EAs prepared by another agency, entity, or person. 46.325 Conclusion of the EA process. Subpart E—Environmental Impact Statements 46.400 Timing of EIS development. 46.405 Remaining within page limits. 46.415 EIS format. 46.420 Terms used in an EIS. 46.425 Identification of the preferred alternative in an EIS. 46.430 Environmental review and consultation requirements. 46.435 Inviting comments. 46.440 Eliminating duplication with State and local procedures. 46.445 Preparing a legislative EIS. 46.450 Identifying the environmentally preferable alternative. Authority: 42 U.S.C. 4321, *et seq.* (The National Environmental Policy Act of 1969, as amended); Executive Order 11514, (Protection and Enhancement of Environmental Quality (March 5, 1970, as amended by Executive Order 11991, May 24, 1977)); 40 CFR parts 1500-1508 (43 FR 55978) (National Environmental Policy Act, Implementation of Procedural Provisions). Subpart A—General Information § 46.10 Purpose of this part. This part establishes procedures for the Department, and its constituent bureaus, to use for compliance with:
(a)The National Environmental Policy Act
(NEPA)of 1969, as amended (42 U.S.C. 4321, *et seq.* ); and
(b)The Council on Environmental Quality
(CEQ)regulations for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508). § 46.20 How to use this part.
(a)This part supplements, and is to be used in conjunction with, the CEQ regulations except where it is inconsistent with other statutory requirements. The following table shows the corresponding CEQ regulations for the sections in subparts A-E of this part. Some sections in those subparts do not have a corresponding CEQ regulation. 40 CFR Subpart A: 46.10 Parts 1500-1508. 46.20 No corresponding CEQ regulation. 46.30 No corresponding CEQ regulation. Subpart B: 46.100 1508.14, 1508.18, 1508.23 46.105 1506.5 46.110 No corresponding CEQ regulation. 46.113 1508.25 46.115 1508.7 46.120 1502.9, 1502.20, 1502.21, 1506.3 46.125 1502.22 46.130 1502.14 46.135 1502.21 46.140 1502.20 46.145 No corresponding CEQ regulation. 46.150 1506.11 46.155 1502.25, 1506.2 46.160 1506.1 46.165 1506.6 46.170 No corresponding CEQ regulation. Subpart C: 46.200 1501.2 46.205 1508.4 46.210 1508.4 46.215 1508.4 46.220 1501.5 46.225 1501.6 46.230 1501.6 46.235 1501.7 46.240 1501.8 Subpart D: 46.300 1501.3 46.305 1501.7, 1506.6 46.310 1508.9 46.315 No corresponding CEQ regulation. 46.320 1506.3 46.325 1505.1 Subpart E: 46.400 1502.5 46.405 1502.7 46.415 1502.10 46.420 1502.14 46.425 1502.14 46.430 1502.25 46.435 1503.1 46.440 1506.2 46.445 1506.8 46.450 1505.2
(b)The Responsible Official shall coordinate the appropriate NEPA review with the decisionmaking process for proposals subject to this part.
(c)During the decisionmaking process for each proposal subject to this part, the Responsible Official shall consider the relevant NEPA documents, public and agency comments (if any) on those documents, and responses to those comments, as part of consideration of the proposal and with the exception of § 46.210(a) through (j), shall include such documents, including supplements, comments, and responses as part of the administrative record.
(d)The Responsible Official's decision on a proposed action shall be within the range of alternatives discussed in the relevant environmental document.
(e)For situations involving an applicant, the Responsible Official should initiate the NEPA process upon acceptance of an application for a proposed Federal action. The Responsible Official shall make policies or staff available to advise potential applicants of studies or other information foreseeably required for later Federal action. § 46.30 Definitions. For purposes of this part, the following definitions supplement terms defined at 40 CFR parts 1500-1508. *Adaptive management* is a system of management practices based on clearly identified outcomes and monitoring to determine if management actions are meeting desired outcomes; and, if not, facilitating management changes that will best ensure that outcomes are met or re-evaluated. Adaptive management recognizes that knowledge about natural resource systems is sometimes uncertain. *Bureau* means bureau, office, service, or survey. *Community-based training* in the NEPA context is the training of local participants together with Federal participants in the intricacies of the environmental planning effort as it relates to the local community(ies). *Controversial* refers to cases where a substantial dispute exists as to the size, nature, or effect of the proposed action rather than to the existence of opposition to a proposed action, the effect of which is relatively undisputed. *Environmental Statement Memoranda (ESM)* are a series of instructions to provide information and guidance in the preparation, completion, and circulation of NEPA documents. *Environmentally preferable alternative* is the alternative required by 40 CFR 1505.2(b) to be identified in a ROD, that causes the least damage to the biological and physical environment and best protects, preserves, and enhances historical, cultural, and natural resources. The Responsible Official must consider and weigh long-term environmental impacts against short-term impacts in evaluating what is the best protection of these resources. In some situations, there may be more than one environmentally preferable alternative. *Preliminary environmental impact statement* is an interim environmental document that a Responsible Official may use to initiate discussion, solicit comments, and inform interested parties and agency personnel while proposals, alternatives, and environmental effects are explored and considered prior to filing a draft or final EIS. A preliminary EIS is an option available for Responsible Official to use and is not required. *Reasonably foreseeable future actions* include those activities not yet undertaken, for which there are existing decisions, funding, or proposals identified by the agency. *Responsible Official* is the bureau employee who exercises the authority to make and implement a decision on a proposed action. Subpart B—Protection and Enhancement of Environmental Quality § 46.100 Federal action subject to the procedural requirements of NEPA.
(a)The determination of whether a proposed action is subject to the procedural requirements of NEPA depends on the extent to which bureaus exercise control and responsibility over the proposed action and whether Federal funding or approval will be provided to implement it. If Federal funding is provided in the form of general revenue sharing funds with no Federal agency control as to the expenditure of such funds by the recipient, NEPA compliance is not necessary.
(b)A bureau proposal is a Federal action and subject to the procedural requirements of NEPA when it meets all of the following criteria:
(1)The bureau has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal;
(2)The proposed action is subject to bureau control and responsibility (40 CFR 1508.18);
(3)The proposed action would cause effects on the human environment (40 CFR 1508.14) that can be meaningfully evaluated (40 CFR 1508.23); and
(4)The proposed action is not statutorily exempt from the requirements of section 102(2) of NEPA. § 46.105 Using a contractor to prepare environmental documents. A bureau may use a contractor to prepare any environmental document in accordance with the standards of 40 CFR 1506.5(b) and (c). If a bureau uses a contractor, the bureau remains responsible for:
(a)Preparation and adequacy of the environmental documents; and
(b)Independent evaluation of the environmental documents after their completion. § 46.110 Using consensus-based management.
(a)For the purposes of this Part, consensus-based management is the inclusion of interested parties with an assurance for the participants that the results of their work will be given consideration by the Responsible Official in selecting a course of action.
(b)In practicing consensus-based management, bureaus should give full consideration to any reasonable alternative(s) put forth by participating interested parties. While there can be no guarantee that a community's proposed alternative will be taken as the agency proposed action, bureaus must be able to show that a community's work is reflected in the evaluation of the proposed action and the final decision. To be considered, the community's alternative must be fully consistent with NEPA, the CEQ Regulations, and all applicable Departmental and bureau written policies and guidance. § 46.113 Scope of the analysis. To determine the scope of the NEPA analysis and documentation for a proposed action, bureaus shall consider whether, to what extent, and how they will analyze connected, cumulative, and similar actions. The NEPA document should contain discussions of the effects of connected and cumulative actions, and may contain discussions of the effects of similar actions. For example, when the proposed Federal action determines the location or design of a non-Federal connected action, the effects of that connected action should be included in the discussion of the indirect impacts of the proposed Federal action. The effects of non-Federal and Federal cumulative actions and actions with cumulative effects on the same resource values affected by the proposed Federal action should be included in the discussion of the cumulative impacts of the proposed Federal action. A non-Federal connected action that impacts the same resource values affected by the proposed Federal action should be included in the discussion of the indirect and cumulative impacts of the proposed Federal action. § 46.115 Consideration of past actions in the cumulative effects analysis. When considering the effects of past actions as part of a cumulative effects analysis, the Responsible Official must analyze the effects in accordance with guidance established by CEQ:
(a)The analysis of cumulative effects begins with consideration of the direct and indirect effects on the environment that are expected or likely to result from the alternative proposals for bureau action. Bureaus then look for present effects of past actions that are, in the judgment of the bureau, relevant and useful because they have a significant cause-and-effect relationship with the direct and indirect effects of the proposal for bureau action and its alternatives. CEQ regulations do not require the consideration of the individual effects of all past actions to determine the present effects of past actions. Once the bureau has identified those present effects of past actions that warrant consideration, the bureau assesses the extent that the effects of the proposal for bureau action or its alternatives will add to, modify, or mitigate those effects. The final analysis documents a bureau assessment of the cumulative effects of the actions considered (including past, present, and reasonably foreseeable future actions) on the affected environment.
(b)With respect to past actions, during the scoping process and subsequent preparation of the analysis, the bureau must determine what information regarding past actions is useful and relevant to the required analysis of cumulative effects. Cataloging past actions and specific information about the direct and indirect effects of their design and implementation could in some contexts be useful to predict the cumulative effects of the proposal. The CEQ regulations, however, do not require bureaus to catalogue or exhaustively list and analyze all individual past actions. Simply because information about past actions may be available or obtained with reasonable effort does not mean that it is relevant and necessary to inform decisionmaking. § 46.120 Using existing environmental analyses.
(a)The Responsible Official should use existing analyses for assessing the impacts of a proposed action and any alternatives as allowed by this section.
(b)If existing analyses include data and assumptions appropriate for the analysis at hand, the Responsible Official should use the existing analyses where feasible.
(c)An existing environmental analysis may be used if the Responsible Official determines, with appropriate supporting documentation, that it adequately assesses the environmental effects of the proposed action and reasonable alternatives. The supporting record must include an evaluation of whether new circumstances, new information, changes in the action or its impacts not previously analyzed, warrant new analysis.
(d)Bureaus should make the best use of existing NEPA documents and avoid redundancy and unneeded paperwork through supplementing, incorporating by reference, or adopting previous environmental analyses. § 46.125 Incomplete or unavailable information. In 40 CFR 1502.22, the over-all costs of obtaining information being exorbitant refers not only to monetary costs, but can include other non-monetized social costs when appropriate. § 46.130 Mitigation measures in analyses. The analysis of the proposed action and any alternatives must include an analysis of the effects of the proposed action or alternative without additional mitigation as well as analysis of the effects of any other appropriate mitigation measures or best management practices that are considered for addition to the proposed action or alternatives. The additional mitigation measures can be analyzed either as elements of alternatives or in a separate discussion of mitigation. § 46.135 Using incorporation by reference.
(a)The Responsible Official must determine that the analysis and assumptions used in the reference document are appropriate for the analysis at hand.
(b)Citations of specific information or analysis from other source documents must include the pertinent page numbers.
(c)All literature references must be listed in the bibliography. Literature references that are incorporated by reference shall be readily available for review; literature references that are not readily available shall be made available for review as part of the administrative record supporting the proposed action. § 46.140 Using tiered documents. A NEPA document that tiers to a broader NEPA document in accordance with 40 CFR 1508.28 must include a finding that the conditions and environmental effects described in the broader NEPA document are still valid.
(a)Where the impacts of the narrower action are identified and analyzed in the broader NEPA document, no further analysis is necessary.
(b)To the extent that any relevant analysis in the broader NEPA document is out-of-date or otherwise inadequate, the tiered NEPA document must explain this and provide any necessary analysis.
(c)Bureaus will review their existing guidance concerning the use of tiering, and ascertain whether additional guidance is needed. Guidance must include, but is not limited to, guidance on finding and using similar information, examples of tiered analyses, a set of procedural steps to make the most of tiered analyses, knowledge of when to use previous material, and how to use tiered analyses without sacrificing references to original sources. § 46.145 Using adaptive management. Bureaus should use adaptive management as part of their decision making processes, as appropriate, particularly in circumstances where long-term impacts may be uncertain and future monitoring will be needed to make necessary adjustments in subsequent implementation decisions. The NEPA analysis conducted in support of a bureau's decision to adopt an adaptive management approach should identify the range of management options that may be taken in response to the results of monitoring, and should analyze the effects of such options. The environmental effects of any adaptive management strategy must be evaluated in this or subsequent NEPA analysis. § 46.150 Emergency responses.
(a)If the Responsible Official determines that an emergency exists that makes it necessary to take emergency actions before completing a NEPA analysis and documentation in accordance with the provisions in subparts D and E of this part, then these provisions apply.
(b)The Responsible Official may take emergency actions necessary to control the immediate impacts of the emergency to mitigate harm to life, property, or important resources. When taking such actions, the Responsible Official shall take into account the probable environmental consequences of the emergency action and mitigate foreseeable adverse environmental effects to the extent practical.
(c)If the Responsible Official determines that proposed emergency actions, beyond actions noted in paragraph
(b)of this section, are not likely to have significant environmental impacts, the Responsible Official shall document that determination in an EA and finding of no significant impact (FONSI) prepared in accordance with this regulation, unless categorically excluded (subpart C of this part). If the Responsible Official finds that the nature and scope of the subsequent actions related to the emergency require taking such proposed actions prior to completing an EA and FONSI, the Responsible Official shall consult with the Department about alternative arrangements for NEPA compliance. Consultation with the Department must be coordinated through the appropriate bureau's office.
(d)If the Responsible Official determines that proposed emergency actions, beyond actions noted in paragraph
(b)of this section, are likely to have significant environmental impacts, then the Responsible Official shall consult with CEQ, through the appropriate bureau office and the Department, about alternative arrangements as soon as possible. Alternative arrangements address the proposed actions necessary to control the immediate impacts of the emergency. Other proposed actions remain subject to NEPA analysis and documentation in accordance with this regulation. § 46.155 Consultation, coordination, and cooperation with other agencies and organizations.
(a)The Responsible Official must whenever possible:
(1)Consult, coordinate, and cooperate with relevant State, local, and tribal governments and other bureaus and Federal agencies concerning the environmental effects of bureau plans, programs, and activities within the jurisdictions or related to the interests of these outside entities; and
(2)Include consensus-based management (see § 46.110) and, when doing so, comply with the applicable provisions of the Federal Advisory Committee Act (FACA).
(b)Bureaus must develop procedures to implement this section. § 46.160 Limitations on actions during the NEPA analysis process. During the preparation of a program or plan NEPA document, the Responsible Official may undertake any major Federal action within the scope of, and analyzed in the existing NEPA document supporting the current plan or program, so long as there is adequate NEPA documentation to support the individual action. § 46.165 Ensuring public involvement. Bureaus should develop and implement procedures in accordance with this part to ensure:
(a)The fullest practical provision of timely public information about bureau proposed actions that have environmental impacts, including information on the environmental impacts of alternative courses of action; and
(b)Appropriate public involvement in the development of NEPA analyses and documents. § 46.170 Environmental effects abroad of major Federal actions.
(a)In order to facilitate informed and responsible decision-making, the Responsible Official having ultimate responsibility for authorizing and approving proposed actions encompassed by the provisions of Executive Order (E.O.) 12114 shall follow the provisions and procedures of that E.O. E.O. 12114 represents the United States government's exclusive and complete determination of the procedural and other proposed actions to be taken by Federal agencies to further the purpose of NEPA, with respect to the environment outside the United States, its territories, and possessions.
(b)When implementing E.O. 12114, bureaus shall coordinate with the Department. The Department shall then consult with the Department of State, which shall coordinate all communications by the Department with foreign governments concerning environmental agreements and other arrangements in implementing E.O. 12114. Subpart C—Initiating the NEPA Process § 46.200 Applying NEPA early.
(a)For any proposed Federal action (40 CFR 1508.23 and 1508.18) that may have environmental impacts, bureaus must coordinate, as early as feasible, with:
(1)Any other bureaus or Federal agencies, State, local, and tribal governments having jurisdiction by law or special expertise; and
(2)Appropriate Federal, State, local, and tribal governments authorized to develop and enforce environmental standards or to manage and protect natural resources or other aspects of the human environment.
(b)Bureaus must solicit the participation of all interested parties and organizations as early as possible, such as at the time an application is received, or when the bureau initiates the NEPA process for a proposed action.
(c)Bureaus should provide, where practicable, any appropriate community-based training to reduce costs, prevent delays, and facilitate and promote efficiency in the NEPA process.
(d)Bureaus should inform private or non-Federal applicants, to the extent feasible, of:
(1)Any appropriate environmental information that the applicants must include in their applications; and
(2)Any consultation with other Federal agencies, or State, local, or tribal governments that the applicant must accomplish before or during the application process. § 46.205 Actions categorically excluded from further NEPA review. CXs are a group of actions that have no significant individual or cumulative effect on the quality of the human environment.
(a)Except as provided in paragraph
(c)of this section, if an action is covered by a Departmental CX, the bureau is not required to prepare an EA (see subpart D of this part) or an EIS (see subpart E of this part).
(b)The actions listed in § 46.210 are categorically excluded, Department-wide, from preparation of EAs or EISs.
(c)The CEQ Regulations at 40 CFR 1508.4 require agency procedures to provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect and require additional analysis and action. Section 46.215 lists the extraordinary circumstances under which actions otherwise covered by a CX require analyses under NEPA.
(1)Any action that is normally categorically excluded must be evaluated to determine whether it meets any of these extraordinary circumstances, in which case, further analysis and environmental documents must be prepared for the action.
(2)Bureaus must work within existing administrative frameworks, including any existing programmatic agreements, when deciding how to apply any of the § 46.215 extraordinary circumstances.
(d)Congress may establish CXs by legislation, in which case the terms of the legislation determine how to apply the CX. § 46.210 Listing of Departmental CXs. The following actions are categorically excluded under § 46.205(b), unless any of the extraordinary circumstances in § 46.215 apply:
(a)Personnel actions and investigations and personnel services contracts.
(b)Internal organizational changes and facility and bureau reductions and closings.
(c)Routine financial transactions including such things as salaries and expenses, procurement contracts (e.g., in accordance with applicable procedures and Executive Orders for sustainable development or green procurement), guarantees, financial assistance, income transfers, audits, fees, bonds, and royalties.
(d)Departmental legal activities including, but not limited to, such things as arrests, investigations, patents, claims, and legal opinions. This does not include bringing judicial or administrative civil or criminal enforcement actions which are outside the scope of NEPA in accordance with 40 CFR 1508.18(a).
(e)Nondestructive data collection, inventory (including field, aerial, and satellite surveying and mapping), study, research, and monitoring activities.
(f)Routine and continuing government business, including such things as supervision, administration, operations, maintenance, renovations, and replacement activities having limited context and intensity (e.g., limited size and magnitude or short-term effects).
(g)Management, formulation, allocation, transfer, and reprogramming of the Department's budget at all levels. (This does not exclude the preparation of environmental documents for proposals included in the budget when otherwise required.)
(h)Legislative proposals of an administrative or technical nature (including such things as changes in authorizations for appropriations and minor boundary changes and land title transactions) or having primarily economic, social, individual, or institutional effects; and comments and reports on referrals of legislative proposals.
(i)Policies, directives, regulations, and guidelines:
(1)That are of an administrative, financial, legal, technical, or procedural nature; or
(2)Whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.
(j)Activities which are educational, informational, advisory, or consultative to other agencies, public and private entities, visitors, individuals, or the general public.
(k)Hazardous fuels reduction activities using prescribed fire not to exceed 4,500 acres, and mechanical methods for crushing, piling, thinning, pruning, cutting, chipping, mulching, and mowing, not to exceed 1,000 acres. Such activities:
(1)Shall be limited to areas—
(i)In wildland-urban interface; and
(ii)Condition Classes 2 or 3 in Fire Regime Groups I, II, or III, outside the wildland-urban interface;
(2)Shall be identified through a collaborative framework as described in “A Collaborative Approach for Reducing Wildland Fire Risks to Communities and the Environment 10-Year Comprehensive Strategy Implementation Plan;”
(3)Shall be conducted consistent with bureau and Departmental procedures and applicable land and resource management plans;
(4)Shall not be conducted in wilderness areas or impair the suitability of wilderness study areas for preservation as wilderness; and
(5)Shall not include the use of herbicides or pesticides or the construction of new permanent roads or other new permanent infrastructure; and may include the sale of vegetative material if the primary purpose of the activity is hazardous fuels reduction. (Refer to the ESM Series for additional, required guidance.)
(l)Post-fire rehabilitation activities not to exceed 4,200 acres (such as tree planting, fence replacement, habitat restoration, heritage site restoration, repair of roads and trails, and repair of damage to minor facilities such as campgrounds) to repair or improve lands unlikely to recover to a management approved condition from wildland fire damage, or to repair or replace minor facilities damaged by fire. Such activities must comply with the following (Refer to the ESM Series for additional, required guidance.):
(1)Shall be conducted consistent with bureau and Departmental procedures and applicable land and resource management plans;
(2)Shall not include the use of herbicides or pesticides or the construction of new permanent roads or other new permanent infrastructure; and
(3)Shall be completed within three years following a wildland fire. § 46.215 CXs: Extraordinary circumstances. Extraordinary circumstances (see § 46.205(c)) exist for individual actions within CXs that may meet any of the criteria listed in paragraphs
(a)through
(l)of this section. Applicability of extraordinary circumstances to CXs is determined by the Responsible Official.
(a)Have significant impacts on public health or safety.
(b)Have significant impacts on such natural resources and unique geographic characteristics as historic or cultural resources; park, recreation or refuge lands; wilderness areas; wild or scenic rivers; national natural landmarks; sole or principal drinking water aquifers; prime farmlands; wetlands (E.O. 11990); floodplains (E.O. 11988); national monuments; migratory birds; and other ecologically significant or critical areas.
(c)Have highly controversial environmental effects or involve unresolved conflicts concerning alternative uses of available resources [NEPA section 102(2)(E)].
(d)Have highly uncertain and potentially significant environmental effects or involve unique or unknown environmental risks.
(e)Establish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects.
(f)Have a direct relationship to other actions with individually insignificant but cumulatively significant environmental effects.
(g)Have significant impacts on properties listed, or eligible for listing, on the National Register of Historic Places.
(h)Have significant impacts on species listed, or proposed to be listed, on the List of Endangered or Threatened Species, or have significant impacts on designated Critical Habitat for these species.
(i)Violate a Federal law, or a State, local, or tribal law or requirement imposed for the protection of the environment.
(j)Have a disproportionately high and adverse effect on low income or minority populations (E.O. 12898).
(k)Limit access to and ceremonial use of Indian sacred sites on Federal lands by Indian religious practitioners or significantly adversely affect the physical integrity of such sacred sites (E.O. 13007).
(l)Contribute to the introduction, continued existence, or spread of noxious weeds or non-native invasive species known to occur in the area or actions that may promote the introduction, growth, or expansion of the range of such species (Federal Noxious Weed Control Act and E.O. 13112). § 46.220 How to designate lead agencies.
(a)In most cases, the Responsible Official should designate one Federal agency as the lead with the remaining Federal, State, tribal governments, and local agencies assuming the role of cooperating agency. In this manner, the other Federal, State, and local agencies can work to ensure that the NEPA document will meet their needs for adoption and application to their related decision(s).
(b)In some cases, a non-Federal agency (including a tribal government) must comply with State or local requirements that are comparable to the NEPA requirements. In these cases, the Responsible Official may designate the non-Federal agency as a joint lead agency. (See 40 CFR 1501.5 and 1506.2 for a description of the selection of lead agencies, the settlement of lead agency disputes, and the use of joint lead agencies.)
(c)In some cases, the Responsible Official may establish a joint lead relationship among several Federal agencies. If there is a joint lead, then one Federal agency must be identified as the agency responsible for filing the EIS with EPA. § 46.225 How to select cooperating agencies.
(a)An “eligible governmental entity” is:
(1)Any Federal agency that is qualified to participate in the development of an EIS as provided for in 40 CFR 1501.6 and 1508.5 by virtue of its jurisdiction by law, as defined in 40 CFR 1508.15; or
(2)Any Federal agency that is qualified to participate in the development of an EIS by virtue of its special expertise, as defined in 40 CFR 1508.26; or
(3)Any non-Federal agency (State, Tribal, or local) with qualifications similar to those in paragraphs (a)(1) and (a)(2) of this section.
(b)Except as described in paragraph
(c)of this section, the Responsible Official for the lead bureau must invite eligible governmental entities to participate as cooperating agencies when the bureau is developing an EIS.
(c)The Responsible Official for the lead bureau must consider any request by an eligible governmental entity to participate in a particular EIS as a cooperating agency. If the Responsible Official for the lead bureau denies a request, or determines it is inappropriate to extend an invitation, it must state the reasons in the EIS. Denial of a request or not extending an invitation for cooperating agency status is not subject to any internal administrative appeals process, nor is it a final agency action subject to review under the Administrative Procedure Act, 5 U.S.C. 701 *et seq.*
(d)Bureaus should work with cooperating agencies to develop and adopt a memorandum of understanding that includes their respective roles, assignment of issues, schedules, and staff commitments so that the NEPA process remains on track and within the time schedule. Memoranda of understanding must be used in the case of non-Federal agencies and must include a commitment to maintain the confidentiality of documents and deliberations during the period prior to the public release by the bureau of the draft NEPA document.
(e)The procedures of this section may be used for an EA. § 46.230 Role of cooperating agencies in the NEPA process. In accordance with 40 CFR 1501.6, throughout the development of an environmental document the lead bureau will collaborate, to the fullest extent possible, with all cooperating agencies concerning those issues relating to their jurisdiction and special expertise. Cooperating agencies may, by agreement with the lead bureau, help to do the following:
(a)Identify issues to be addressed in the EIS;
(b)Arrange for the collection and/or assembly of necessary resource, environmental, social, economic, and institutional data;
(c)Analyze data;
(d)Develop alternatives;
(e)Evaluate alternatives and estimate the effects of implementing each alternative; and
(f)Carry out any other task necessary for the development of the EIS. § 46.235 NEPA scoping process.
(a)Scoping is a process that continues throughout the planning and early stages of preparation of an EIS. While scoping is required for an EIS, as described in this section, it may also be appropriate to engage in scoping during the preparation of an EA. For an EIS, bureaus must use scoping to engage State, local and tribal governments, and the public in the early identification of concerns, potential impacts, possible alternative actions, and interdisciplinary considerations. Scoping is an opportunity to bring agencies and applicants together to lay the groundwork for setting time limits, expediting reviews where possible, integrating other environmental reviews, and identifying any major obstacles that could delay the process. The Responsible Official shall determine whether, in some cases, the invitation requirement in 40 CFR 1501.7(a)(1) may be satisfied by including such an invitation in the notice of intent (NOI).
(b)In scoping meetings, newsletters, or other communication methods, the lead agency must make it clear that the lead agency is ultimately responsible for the scope of an EIS and that suggestions obtained during scoping are considered to be advisory. § 46.240 Establishing time limits for the NEPA process.
(a)For each proposed action, on a case-by-case basis, bureaus shall:
(1)Set time limits from the start through to the finish of the NEPA analysis and documentation consistent with the requirements of 40 CFR 1501.8 and other legal obligations, including statutory and regulatory timeframes;
(2)Consult with cooperating agencies in setting time limits; and
(3)Encourage cooperating agencies to meet established time frames.
(b)Time limits should reflect the availability of personnel and funds. Efficiency of the NEPA process is dependent on the management capabilities of the lead bureau, which must assemble a qualified staff commensurate with the type of project to be analyzed to ensure timely completion of NEPA documents. Subpart D—Environmental Assessments § 46.300 Purpose of an EA and when it must be prepared. The purpose of an EA is to allow the Responsible Official to determine whether to prepare an EIS or a FONSI.
(a)A bureau must prepare an EA for all proposed Federal actions, except those:
(1)That are covered by a CX;
(2)That are covered sufficiently by an earlier environmental document as determined by the Responsible Official; or
(3)For which the bureau has already decided to prepare an EIS.
(b)A bureau may prepare an EA for any proposed action at any time to:
(1)Assist in planning and decision-making;
(2)Further the purposes of NEPA when no EIS is necessary; or
(3)Facilitate EIS preparation. § 46.305 Public involvement in the EA process.
(a)The bureau must provide for public notification when an EA is being prepared. The bureau must, to the extent practicable, provide for public involvement when an EA is being prepared. However, the method for providing opportunities for public involvement is at the discretion of the bureau.
(1)The bureau must consider comments resulting from the notice that are timely received, whether specifically solicited or not.
(2)Although scoping is not required, the bureau may apply a scoping process to an EA.
(b)Publication of a “draft” EA is not required. Bureaus may seek comments on an EA if they determine it to be appropriate, such as when the level of public interest or the uncertainty of effects warrants.
(c)The bureau must notify the public of the availability of an EA and any associated FONSI once they have been completed. Comments on a FONSI must be solicited only as required by 40 CFR 1501.4(e)(2).
(d)Bureaus may allow cooperating agencies (as defined in § 46.225) to participate in developing EAs. § 46.310 Contents of an EA.
(a)At a minimum, an EA must include brief discussions of:
(1)The proposal;
(2)The need for the proposal;
(3)The environmental impacts of the proposed action;
(4)The environmental impacts of the alternatives considered; and
(5)A list of agencies and persons consulted.
(b)When there is consensus about the proposed action with respect to alternative uses of available resources, the EA need only consider the proposed action and proceed without consideration of additional alternatives, including the no action alternative. (See section 102(2)(e) of NEPA).
(c)In addition, an EA may describe a broader range of alternatives to facilitate planning and decision-making.
(d)A proposed action or alternative(s) may include adaptive management strategies allowing for adjustment of the action during implementation. If the adjustments to an action are clearly articulated and pre-specified in the description of the alternative and fully analyzed, then the action may be adjusted during implementation without the need for further analysis. Adaptive management includes a monitoring component, approved adaptive actions that may be taken, and environmental effects analysis for the adaptive actions approved.
(e)The level of detail and depth of impact analysis should normally be limited to the minimum needed to determine whether there would be significant environmental effects.
(f)Bureaus may choose to provide additional detail and depth of analysis as appropriate in those EAs prepared under § 46.300(b).
(g)An EA must contain objective analyses that support conclusions concerning environmental impacts. § 46.315 How to format an EA.
(a)An EA may be prepared in any format useful to facilitate planning, decision-making, and appropriate public participation.
(b)An EA may be accompanied by any other planning or decision-making document. The portion of the document that analyzes the environmental impacts of the proposal and alternatives must be clearly and separately identified and not spread throughout or interwoven into other sections of the document. § 46.320 Adopting EAs prepared by another agency, entity, or person.
(a)A Responsible Official may adopt an EA prepared by another agency, entity, or person, including an applicant, if the Responsible Official:
(1)Independently reviews the EA; and
(2)Finds that the EA complies with this subpart and relevant provisions of the CEQ Regulations and with other program requirements.
(b)When appropriate, the Responsible Official may augment the EA to be consistent with the bureau's proposed action.
(c)In adopting or augmenting the EA, the Responsible Official will cite the original EA.
(d)The Responsible Official must ensure that its bureau's public involvement requirements have been met before it adopts another agency's EA. § 46.325 Conclusion of the EA process.
(a)Upon review of the EA by the Responsible Official, the EA process concludes in either:
(1)A NOI to prepare an EIS;
(2)A FONSI; or
(3)No further action on the proposal.
(b)Bureaus must document the final decision reached under paragraph
(a)of this section. Subpart E—Environmental Impact Statements § 46.400 Timing of EIS development.
(a)The bureau must prepare an EIS for each proposed major Federal action significantly affecting the quality of the human environment before making a decision on whether or not to proceed with the proposed action.
(b)The Responsible Official must inform applicants as soon as practicable of any responsibility they will bear for funding environmental analyses associated with their proposals. § 46.405 Remaining within page limits. To the extent possible, bureaus should use techniques such as incorporation by reference and tiering in an effort to remain within the normal page limits stated in 40 CFR 1502.7. § 46.415 EIS format. The Responsible Official may use any EIS format and design as long as the statement is in accordance with 40 CFR 1502.10.
(a)*Contents.* The Responsible Official may use any EIS format as long as the statement discloses:
(1)A statement of the purpose and need for the action;
(2)A description of the proposed action;
(3)The environmental impact of the proposed action;
(4)A brief description of the affected environment;
(5)Any adverse environmental effects which cannot be avoided should the proposal be implemented;
(6)Alternatives to the proposed action;
(7)The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity;
(8)Any irreversible or irretrievable commitments of resources which would be involved in the proposed action should it be implemented; and
(9)The incremental process used, if any, of coordination with other Federal agencies, State, Tribal and local governments, and commonly recognized community groups pursuant to §§ 46.110, 46.145 and 46.155 and the results thereof.
(b)*Alternatives.* The EIS shall document the examination of reasonable alternatives to the proposed action. Reasonable alternatives are those that meet the purpose and need and address one or more significant issues (40 CFR 1501.7) related to the proposed action. Since an alternative may be developed to address more than one significant issue, no specific number of alternatives is required or prescribed. In addition to the requirements at 40 CFR 1502.14, the Responsible Official has an option to use the following procedures to develop and analyze alternatives.
(1)The effects of the no-action alternative may be documented by contrasting the current condition and expected future condition should the proposed action not be undertaken with the impacts of the proposed action and any reasonable alternatives.
(2)To facilitate collaborative processes and sound decisions, the Responsible Official may collaborate with interested parties to modify a proposed action and alternative(s) under consideration prior to issuing a draft EIS. In such cases the Responsible Official may consider the incremental changes as alternatives considered. The documentation of these incremental changes to a proposed action or alternatives may be incorporated by reference in accordance with 40 CFR 1502.21 rather than duplicating the description and analysis in the statement.
(3)A proposed action or alternative(s) may include adaptive management strategies allowing for adjustment of the action during implementation. If the adjustments to an action are clearly articulated and pre-specified in the description of the alternative and fully analyzed, then the action may be adjusted during implementation without the need for further analysis. Adaptive management includes a monitoring component, approved adaptive actions that may be taken, and environmental effects analysis for the adaptive actions approved.
(c)*Circulating and filing draft and final EISs.*
(1)The draft and final EISs shall be filed with EPA's Office of Federal Activities in Washington, DC (40 CFR 1506.9).
(2)If preliminary drafts are prepared, the Responsible Official shall make those preliminary draft and preliminary final EISs available to those interested and affected persons and agencies for comment; however, requirements at 40 CFR 1506.10 and 40 CFR 1502.19 shall only apply to the last draft statement and the final statement. § 46.420 Terms used in an EIS. The following terms are commonly used to describe concepts or activities in an EIS:
(a)*Statement of purpose and need.* In accordance with 40 CFR 1502.13, the statement of purpose and need briefly indicates the underlying purpose and need to which the bureau is responding.
(1)In some instances it may be appropriate for the bureau to describe its “purpose” and its “need” as distinct aspects. The “need” for the action may be described as the underlying problem or opportunity to which the agency is responding with the action. The “purpose” may refer to the goal or objective that the agency is trying to achieve, and should be stated to the extent possible, in terms of desired outcomes.
(2)When an agency is asked to approve an application or permit, the agency should consider the needs and goals of the parties involved in the application or permit as well as the public interest.
(b)*Reasonable alternatives.* In addition to the requirements of 40 CFR 1502.14, this term also includes alternatives that are technically and economically practical or feasible and that meet the purpose and need of the proposed action.
(c)*Range of alternatives.* This term includes all alternatives that would reasonably accomplish the purpose of the proposed action, that will be rigorously explored and objectively evaluated as well as other alternatives that are analyzed in any preliminary draft or preliminary final EIS.
(d)*Proposed action.* This term refers to the agency activity under consideration. It includes a non-Federal entity's planned activity that falls under a Federal agency's authority to issue permits, licenses, grants, rights-of-way, or other common Federal approvals, funding, or regulatory instruments. The proposed action:
(1)Is not necessarily, but may become, during the NEPA process, a preferred alternative or an environmentally preferable alternative; and
(2)Must be clearly described in order to proceed with NEPA analysis.
(e)*Preferred alternative.* This term refers to the alternative which the agency believes would best accomplish the purpose and need of the proposed action, while fulfilling its statutory mission and responsibilities, giving consideration to economic, environmental, technical, and other factors. It may or may not be the same as the agency's or the non-Federal entity's proposed action.
(f)*No action alternative.* This term has two interpretations. First “no action” may mean “no change” from a current management direction or level of management intensity. Second “no action” may mean “no project” in cases where a new project is proposed for construction. Regardless of the interpretation, a “no action” alternative is required to be analyzed in an EIS. § 46.425 Identification of the preferred alternative in an EIS.
(a)Unless another law prohibits the expression of a preference, the draft EIS should identify the bureau's preferred alternative or alternatives, if one or more exists.
(b)Unless another law prohibits the expression of a preference, the final EIS must identify the bureau's preferred alternative. § 46.430 Environmental review and consultation requirements.
(a)An EIS that also addresses other environmental review and consultation requirements must clearly identify and discuss all the associated analyses, studies, and surveys relied upon by the agency as a part of that review and consultation. Also:
(1)The EIS should indicate that the associated analyses are included;
(2)The EIS must reference or include as an appendix any supporting analyses or reports; and
(3)The bureau preparing the EIS must send copies of all supporting analyses or reports to reviewing agencies as appropriate in accordance with applicable regulations or procedures.
(b)The draft EIS must list all Federal permits, licenses, or approvals that must be obtained to implement the proposal. To the extent possible and authorized by law, the environmental analyses for these related permits, licenses, and approvals should be integrated and performed concurrently. The bureau may complete the NEPA analysis before all approvals are in place. § 46.435 Inviting comments.
(a)A bureau must seek comment from the public as part of the NOI to prepare an EIS and notice of availability on the draft EISs;
(b)In addition to paragraph
(a)of this section, a bureau must request comments from:
(1)Federal agencies;
(2)State agencies through procedures established by the Governor under E.O. 12372;
(3)Local agencies, to the extent that they include the affected local jurisdictions; and
(4)Applicant, if any, and persons or organizations who may be interested or affected.
(c)The bureau must request comments from the tribal government, unless the tribal government has designated an alternate review process, when the proposed action may affect the environment of either:
(1)Indian trust or restricted land; or
(2)Other Indian trust resources, trust assets, or tribal health and safety.
(d)A bureau does not need to delay preparation and issuance of a final EIS when any Federal, State, and local agencies, or tribal governments from which comments must be obtained or requested do not comment within the prescribed time period. § 46.440 Eliminating duplication with State and local procedures. A bureau must incorporate in its regulations provisions allowing a State agency to jointly prepare an EIS, to the extent provided in 40 CFR 1506.2. § 46.445 Preparing a legislative EIS. When required, the Department must ensure that a legislative EIS is included as a part of the formal transmittal of a legislative proposal to the Congress. § 46.450 Identifying the environmentally preferable alternative. In accordance with the requirements of 40 CFR 1505.2, a bureau must identify the environmentally preferable alternative in the ROD. It is not necessary that the environmentally preferable alternative be selected in the ROD. [FR Doc. E7-25484 Filed 12-31-07; 8:45 am] BILLING CODE 4310-RG-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 071218860-7866-01] RIN 0648-AW26 Pacific Halibut Fisheries; Catch Sharing Plan AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule. SUMMARY: NMFS proposes to approve and implement changes to the Pacific Halibut Catch Sharing Plan
(Plan)for the International Pacific Halibut Commission's (IPHC or Commission) regulatory Area 2A off Washington, Oregon, and California (Area 2A). NMFS proposes to implement the portions of the Plan and management measures that are not implemented through the IPHC, which includes the sport fishery management measures for Area 2A. These actions are intended to enhance the conservation of Pacific halibut, to provide greater angler opportunity where available, and to protect yelloweye rockfish and other overfished groundfish species from incidental catch in the halibut fisheries. DATES: Comments on the proposed changes to the Plan and on the proposed domestic Area 2A halibut management measures must be received no later than 5 p.m., local time on February 1, 2008. ADDRESSES: Copies of the Plan and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis
(IRFA)are available from D. Robert Lohn, Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070. Electronic copies of the Plan, including proposed changes for 2008, and of the draft RIR/IRFA are also available at the NMFS Northwest Region website: *http://www.nwr.noaa.gov* , click on “Groundfish & Halibut.” You may submit comments, identified by RIN 0648-AW26, by any one of the following methods: • *Electronic Submissions:* Submit all electronic public comments via the Federal eRulemaking Portal *http://www.regulations.gov* • *Fax:* 206-526-6736, Attn: Jamie Goen. • *Mail:* D. Robert Lohn, Administrator, Northwest Region, NMFS, Attn: Jamie Goen, 7600 Sand Point Way NE, Seattle, WA 98115-0070. *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. FOR FURTHER INFORMATION CONTACT: For further information contact Jamie Goen at 206-526-4646 or jamie.goen@noaa.gov. SUPPLEMENTARY INFORMATION: The Northern Pacific Halibut Act (Halibut Act) of 1982, at 16 U.S.C. 773c, gives the Secretary of Commerce (Secretary) general responsibility for implementing the provisions of the Halibut Convention between the United States and Canada (Halibut Convention). It requires the Secretary to adopt regulations as may be necessary to carry out the purposes and objectives of the Halibut Convention and the Halibut Act. Section 773c of the Halibut Act authorizes the regional fishery management councils to develop regulations governing the Pacific halibut catch in their corresponding U.S. Convention waters that are in addition to, but not in conflict with, regulations of the IPHC. Each year between 1988 and 1995, the Pacific Fishery Management Council (Pacific Council) had developed a catch sharing plan in accordance with the Halibut Act to allocate the total allowable catch
(TAC)of Pacific halibut between treaty Indian and non-treaty harvesters and among non-treaty commercial and sport fisheries in Area 2A. In 1995, NMFS implemented the Pacific Council-recommended long-term Plan (60 FR 14651, March 20, 1995). In each of the intervening years between 1995 and the present, minor revisions to the Plan have been made to adjust for the changing needs of the fisheries. The Plan allocates 35 percent of the Area 2A TAC to Washington treaty Indian tribes in Subarea 2A-1 and 65 percent to non-Indian fisheries in Area 2A. Additionally, as a result of *U.S.* v. *Washington* ( *U.S., et al* . v. *State of Washington, et al* . Case No. 9213 Phase I, Subproceeding No. 92-1, Stipulation and Order, July 7, 1999), the Plan had required 25,000 lb (11.3 mt) dressed weight of halibut to be transferred from the non-treaty Area 2A halibut allocation to the treaty allocation in Area 2A each year for eight years from 2000 through 2007, for a total transfer of 200,000 lb (90.7 mt). The allocation to non-Indian fisheries is divided into three shares, with the Washington sport fishery (north of the Columbia River) receiving 36.6 percent, the Oregon/California sport fishery receiving 31.7 percent, and the commercial fishery receiving 31.7 percent. The commercial fishery is further divided into a directed commercial fishery that is allocated 85 percent of the commercial allocation and an incidental catch in the salmon troll fishery that is allocated 15 percent of the commercial allocation. The directed commercial fishery in Area 2A is confined to southern Washington (south of 46°53.30′ N. lat.), Oregon, and California. North of 46°53.30′ N. lat. (Pt. Chehalis), the Plan allows for incidental halibut retention in the primary limited entry longline sablefish fishery when the overall Area 2A TAC is above 900,000 lb (408.2 mt). The Plan also divides the sport fisheries into six geographic subareas, each with separate allocations, seasons, and bag limits. The Area 2A TAC will be set by the IPHC at its annual meeting on January 15-18, 2008, in Portland, OR. NMFS requests public comments on the Pacific Council's recommended modifications to the Plan and the proposed domestic fishing regulations by February 1, 2008. This allows the public the opportunity to consider the final Area 2A TAC before submitting comments on the proposed rule. The States of Washington and Oregon will conduct public workshops shortly after the IPHC meeting to obtain input on the sport season dates. After the Area 2A TAC is known and after NMFS reviews public comments and comments from the states, NMFS will issue a final rule for the Area 2A Pacific halibut fisheries concurrent with the IPHC regulations for the 2008 Pacific halibut fisheries. Pacific Council Recommended Changes to the Plan and Domestic Fishing Regulations Each year, the states (Washington Department of Fish and Wildlife
(WDFW)and Oregon Department of Fish and Wildlife (ODFW)) and the tribes with treaty fishing rights for halibut consider whether changes to the Plan are needed or desired by their fishery participants. Fishery managers from the states hold public meetings before both the September and November Pacific Council meetings to get public input on revisions to the Plan. At the September 2007 Pacific Council meeting, NMFS and WDFW recommended several changes to the Plan, and ODFW and the tribes announced that they had no proposals for revising the Plan in 2008. Following the meeting, the states again reviewed their proposals with the public and drafted their recommended revisions for review and recommendation by the Pacific Council. At its November 5-9, 2007, meeting in San Diego, CA, the Pacific Council considered the results of state-sponsored workshops on the proposed changes to the Plan, NMFS-proposed changes to the Plan, and public comments, and made final recommendations for modifications to the Plan as follows:
(1)Reopen the Washington North Coast subarea June sport fishery on the first Tuesday following June 16;
(2)Clarify that the Saturday offshore opener in the Washington North Coast subarea June sport fishery is contingent on available quota;
(3)Provide flexibility in the date that the entire Washington North Coast subarea sport fishery reopens for one day after June 24;
(4)Retain the opening date of May 1 for the Washington South Coast subarea primary sport fishery in 2008 and, starting in 2009, revise the opening date to May 1 if it is a Sunday, otherwise, open on the first Sunday following May 1;
(5)Set the Washington South Coast subarea primary sport fishery as a 2-day per week fishery, open Sunday and Tuesday;
(6)Set aside 10 percent of the Washington South Coast subarea quota for the nearshore sport fishery once the primary fishery has closed;
(7)Set the Washington South Coast subarea nearshore sport fishery as a 4-day per week fishery, open Friday, Saturday, Sunday, and Tuesday;
(8)Remove outdated language referring to the 25,000 lb annual tribal allocation resulting from the U.S. v. Washington case;
(9)Edit language referring to the number of sport subareas to clarify that there are six rather than seven; and
(10)Revise the flexible inseason management provisions for the sport fisheries to allow modification of subarea quotas in all subareas. Proposed Changes to the Plan NMFS is proposing to approve the Pacific Council recommendations and to implement the above-described changes by making the following changes to the Plan: In section
(b)of the Plan, Allocations, revise the first sentence of the first paragraph to remove the reference to “(1) Except as provided below under (b)(2),” to read as follows: This Plan allocates 35 percent of the Area 2A TAC to U.S. treaty Indian tribes in the State of Washington in subarea 2A-1, and 65 percent to non-Indian fisheries in Area 2A. In section
(b)of the Plan, Allocations, remove paragraph (2). In section
(d)of the Plan, Treaty Indian Fisheries, revise the first sentence of the paragraph to read as follows: Thirty-five percent of the Area 2A TAC is allocated to 12 treaty Indian tribes in subarea 2A-1, which includes that portion of Area 2A north of Point Chehalis, WA (46°53.30′ N. lat.) and east of 125°44.00′ W. long. In section
(f)of the Plan, Sport Fisheries, revise the last sentence of the introductory paragraph to read as follows: The allocation is further divided as subquotas among six geographic subareas. In section
(f)of the Plan, Sport Fisheries, revise paragraph
(1)to read as follows: Subarea management. The sport fishery is divided into six sport fishery subareas, each having separate allocations and management measures as follows. In section
(f)of the Plan, Sport Fisheries, revise the last sentence of the first paragraph in (1)(ii) to read as follows: The fishery will then reopen for two days on the first Tuesday and Thursday following June 16, in the following nearshore areas only: In section
(f)of the Plan, Sport Fisheries, revise the first three sentences of the second paragraph in (1)(ii) to read as follows: If there is sufficient quota, the fishery will reopen for one day on the first Saturday following June 16 in the entire north coast subarea. If sufficient quota remains, the fishery would reopen, as a first priority, in the entire north coast subarea for one day following June 24. If there is insufficient quota remaining to reopen the entire north coast subarea for another day, then the nearshore areas described above would reopen following June 24, up to four days per week (Thursday through Sunday), until the remaining subarea quota is projected to be taken. In section
(f)of the Plan, Sport Fisheries, revise the fourth through eighth sentences of paragraph (1)(iii) to read as follows: The south coast subarea quota will be allocated as follows: 90 percent for the primary fishery, and 10 percent for the nearshore fishery, once the primary fishery has closed. In 2008, the fishery will open on May 1. Beginning in 2009, the fishery will open on May 1, if it is a Sunday; otherwise, the fishery will open on the first Sunday following May 1. The primary fishery will be open two days per week, Sunday and Tuesday, in all areas, except where prohibited, and the nearshore fishery will be open four days per week, Friday through Sunday and Tuesday, in the area from 47°25.00′ N. lat. south to 46°58.00′ N. lat. and east of 124°30.00′ W. long. The primary fishery will continue until September 30, or until 90 percent of the quota is achieved, whichever is earlier. In section
(f)of the Plan, Sport Fisheries, revise paragraph (5)(ii)(E) to read as follows: Modification of subarea quotas. Proposed 2008 Sport Fishery Management Measures NMFS is proposing sport fishery management measures that are necessary to implement the Plan in 2008. The 2008 TAC for Area 2A will be determined by the IPHC at its annual meeting on January 15-18, 2008, in Portland, OR. Because the 2008 TAC has not yet been determined, these proposed sport fishery management measures use the IPHC staff's preliminary 2008 Area 2A TAC recommendation of 1,000,000 lb (454 mt), which is lower than the 2007 TAC of 1,340,000 lb (608 mt). Where season dates are not indicated, those dates will be provided in the final rule, following determination of the 2008 TAC and consultation with the states and the public. In Section 25 of the annual domestic management measures, “Sport Fishing for Halibut,” paragraph (4)(b) is proposed to read as follows:
(4)* * *
(b)The sport fishing subareas, subquotas, fishing dates, and daily bag limits are as follows, except as modified under the inseason actions in § 300.63(c). All sport fishing in Area 2A is managed on a “port of landing” basis, whereby any halibut landed into a port counts toward the quota for the area in which that port is located, and the regulations governing the area of landing apply, regardless of the specific area of catch.
(i)The area in Puget Sound and the U.S. waters in the Strait of Juan de Fuca, east of a line extending from 48°17.30′ N. lat., 124°23.70′ W. long. north to 48°24.10′ N. lat., 124°23.70′ W. long., is not managed inseason relative to its quota. This area is managed by setting a season that is projected to result in a catch of 42,606 lb (19 mt).
(A)The fishing season in eastern Puget Sound (east of 123°49.50′ W. long., Low Point) is (insert season dates) and the fishing season in western Puget Sound (west of 123°49.50′ W. long., Low Point) is (insert season dates), 5 days a week (Thursday through Monday). (The final determination of the season dates will be based on the allowable harvest level and projected 2008 catch rates after the final 2008 TAC is set by the IPHC.)
(B)The daily bag limit is one halibut of any size per day per person.
(ii)The quota for landings into ports in the area off the north Washington coast, west of the line described in paragraph (4)(b)(i) of this section and north of the Queets River (47°31.70′ N. lat.), is 93,243 lb (42 mt).
(A)The fishing seasons are: ( *1* ) Commencing on May 15 and continuing 3 days a week (Tuesday, Thursday, and Saturday) until 67,135 lb (30 mt) are estimated to have been taken and the season is closed by the Commission. ( *2* ) On June 17 and 19, the fishery will open only in the nearshore areas defined at the end of this paragraph. If there is sufficient quota, the fishery will open for one day on June 21 in the entire north coast subarea. If sufficient quota remains, the fishery would reopen, as a first priority, in the entire north coast subarea for one day following June 24. If there is insufficient quota remaining to reopen the entire north coast subarea for another day, then the nearshore areas described below would reopen following June 24, up to four days per week (Thursday-Sunday), until the overall quota of 93,243 lb (42 mt) are estimated to have been taken and the area is closed by the Commission, or until September 30, whichever is earlier. After June 19, any fishery opening will be announced on the NMFS hotline at 800-662-9825. No halibut fishing will be allowed after June 19 unless the date is announced on the NMFS hotline. The nearshore areas for Washington's North Coast fishery are defined as follows: ( *i* ) WDFW Marine Catch Area 4B, which is all waters west of the Sekiu River mouth, as defined by a line extending from 48°17.30′ N. lat., 124°23.70′ W. long. north to 48°24.10′ N. lat., 124°23.70′ W. long., to the Bonilla-Tatoosh line, as defined by a line connecting the light on Tatoosh Island, WA, with the light on Bonilla Point on Vancouver Island, British Columbia (at 48°35.73′ N. lat., 124°43.00′ W. long.) south of the International Boundary between the U.S. and Canada (at 48°29.62′ N. lat., 124°43.55′ W. long.), and north of the point where that line intersects with the boundary of the U.S. territorial sea. ( *ii* ) Shoreward of the recreational halibut 30-fm boundary line, a modified line approximating the 30-fm depth contour from the Bonilla-Tatoosh line south to the Queets River. The recreational halibut 30-fm boundary line is defined by the following coordinates in the order listed:
(1)48°24.79′ N. lat., 124°44.07′ W. long.;
(2)48°24.80′ N. lat., 124°44.74′ W. long.;
(3)48°23.94′ N. lat., 124°44.70′ W. long.;
(4)48°23.51′ N. lat., 124°45.01′ W. long.;
(5)48°22.59′ N. lat., 124°44.97′ W. long.;
(6)48°21.75′ N. lat., 124°45.26′ W. long.;
(7)48°21.23′ N. lat., 124°47.78′ W. long.;
(8)48°20.32′ N. lat., 124°49.53′ W. long.;
(9)48°16.72′ N. lat., 124°51.58′ W. long.;
(10)48°10.00′ N. lat., 124°52.58′ W. long.;
(11)48°05.63′ N. lat., 124°52.91′ W. long.;
(12)47°56.25′ N. lat., 124°52.57′ W. long.;
(13)47°40.28′ N. lat., 124°40.07′ W. long.; and
(14)47°31.70′ N. lat., 124°37.03′ W. long.
(B)The daily bag limit is one halibut of any size per day per person.
(C)Recreational fishing for groundfish and halibut is prohibited within the North Coast Recreational Yelloweye Rockfish Conservation Area (YRCA). It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the North Coast Recreational YRCA. A vessel fishing in the North Coast Recreational YRCA may not be in possession of any halibut. Recreational vessels may transit through the North Coast Recreational YRCA with or without halibut on board. The North Coast Recreational YRCA is a C-shaped area off the northern Washington coast intended to protect yelloweye rockfish. The North Coast Recreational YRCA is defined by straight lines connecting the following specific latitude and longitude coordinates in the order listed:
(1)48°18.00′ N. lat.; 125°18.00′ W. long.;
(2)48°18.00′ N. lat.; 124°59.00′ W. long.;
(3)48°11.00′ N. lat.; 124°59.00′ W. long.;
(4)48°11.00′ N. lat.; 125°11.00′ W. long.;
(5)48°04.00′ N. lat.; 125°11.00′ W. long.;
(6)48°04.00′ N. lat.; 124°59.00′ W. long.;
(7)48°00.00′ N. lat.; 124°59.00′ W. long.;
(8)48°00.00′ N. lat.; 125°18.00′ W. long.; and connecting back to 48°18.00′ N. lat.; 125°18.00′ W. long.
(iii)The quota for landings into ports in the area between the Queets River, WA (47°31.70′ N. lat.) and Leadbetter Point, WA (46°38.17′ N. lat.), is 27,952 lb (13 mt).
(A)The fishing season commences on May 1 and continues 2 days a week (Sunday and Tuesday) in all waters (the primary fishery), except that in the area from 47°25.00′ N. lat. south to 46°58.00′ N. lat. and east of 124°30.00′ W. long. (the Washington South coast, northern nearshore area), the fishing season commences on May 1 and continues 4 days a week (Friday, Saturday, Sunday, and Tuesday). The south coast subarea quota will be allocated as follows: 25,156 lb (11 mt), 90 percent, for the primary fishery, and 2,795 lb (1.3 mt), 10 percent, for the northern nearshore fishery, once the primary fishery has closed. The primary fishery will continue from May 1 until 25,156 lb (11 mt) are estimated to have been taken and the season is closed by the Commission, or until September 30, whichever is earlier. Subsequent to this closure, if there is insufficient quota remaining to reopen the primary fishery for another fishing day, then any remaining quota may be used to accommodate incidental catch in the northern nearshore area from 47°25.00′ N. lat. south to 46°58.00′ N. lat. and east of 124°30.00′ W. long. on Fridays and Saturdays, until 27,952 lb (13 mt) is projected to be taken and the fishery is closed by the Commission. If the fishery is closed prior to September 30, and there is insufficient quota remaining to reopen the northern nearshore area for another fishing day, then any remaining quota may be transferred inseason to another Washington coastal subarea by NMFS via an update to the recreational halibut hotline.
(B)The daily bag limit is one halibut of any size per day per person.
(C)Recreational fishing for groundfish and halibut is prohibited within the South Coast Recreational YRCA. It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the South Coast Recreational YRCA. A vessel fishing in the South Coast Recreational YRCA may not be in possession of any halibut. Recreational vessels may transit through the South Coast Recreational YRCA with or without halibut on board. The South Coast Recreational YRCA is an area off the southern Washington coast intended to protect yelloweye rockfish. The South Coast Recreational YRCA is defined by straight lines connecting the following specific latitude and longitude coordinates in the order listed:
(1)46°58.00′ N. lat., 124°48.00′ W. long.;
(2)46°55.00′ N. lat., 124°48.00′ W. long.;
(3)46°55.00′ N. lat., 124°49.00′ W. long.;
(4)46°58.00′ N. lat., 124°49.00′ W. long.; and connecting back to 46°58.00′ N. lat., 124°48.00′ W. long.
(iv)The quota for landings into ports in the area between Leadbetter Point, WA (46°38.17′ N. lat.) and Cape Falcon, OR (45°46.00′ N. lat.), is 14,402 lb (6.5 mt).
(A)The fishing season commences on May 1, and continues 7 days a week until 10,081 lb (4.6 mt) are estimated to have been taken and the season is closed by the Commission or until July 20, whichever is earlier. The fishery will reopen on August 1 and continue 3 days a week (Friday through Sunday) until 14,402 lb (6.5 mt) have been taken and the season is closed by the Commission, or until September 30, whichever is earlier. Subsequent to this closure, if there is insufficient quota remaining in the Columbia River subarea for another fishing day, then any remaining quota may be transferred inseason to another Washington and/or Oregon subarea by NMFS via an update to the recreational halibut hotline. Any remaining quota would be transferred to each state in proportion to its contribution.
(B)The daily bag limit is one halibut of any size per day per person.
(C)Pacific Coast groundfish may not be taken and retained, possessed or landed, except sablefish and Pacific cod when allowed by Pacific Coast groundfish regulations, if halibut are on board the vessel.
(v)The quota for landings into ports in the area off Oregon between Cape Falcon (45°46.00′ N. lat.) and Humbug Mountain (42°40.50′ N. lat.), is 189,566 lb (86 mt).
(A)The fishing seasons are: ( *1* ) The first season (the “inside 40-fm” fishery) commences May 1 and continues 7 days a week through October 31, in the area shoreward of a boundary line approximating the 40-fm (73-m) depth contour, or until the sub-quota for the central Oregon “inside 40-fm” fishery (15,165 lb (6.9 mt)) or any inseason revised subquota is estimated to have been taken and the season is closed by the Commission, whichever is earlier. The boundary line approximating the 40-fm (73-m) depth contour between 45°46.00′ N. lat. and 42°40.50′ N. lat. is defined by straight lines connecting all of the following points in the order stated:
(1)45°46.00′ N. lat., 124°04.49′ W. long.;
(2)45°44.34′ N. lat., 124°05.09′ W. long.;
(3)45°40.64′ N. lat., 124°04.90′ W. long.;
(4)45°33.00′ N. lat., 124°04.46′ W. long.;
(5)45°32.27′ N. lat., 124°04.74′ W. long.;
(6)45°29.26′ N. lat., 124°04.22′ W. long.;
(7)45°20.25′ N. lat., 124°04.67′ W. long.;
(8)45°19.99′ N. lat., 124°04.62′ W. long.;
(9)45°17.50′ N. lat., 124°04.91′ W. long.;
(10)45°11.29′ N. lat., 124°05.19′ W. long.;
(11)45°05.79′ N. lat., 124°05.40′ W. long.;
(12)45°05.07′ N. lat., 124°05.93′ W. long.;
(13)45°03.83′ N. lat., 124°06.47′ W. long.;
(14)45°01.70′ N. lat., 124°06.53′ W. long.;
(15)44°58.75′ N. lat., 124°07.14′ W. long.;
(16)44°51.28′ N. lat., 124°10.21′ W. long.;
(17)44°49.49′ N. lat., 124°10.89′ W. long.;
(18)44°44.96′ N. lat., 124°14.39′ W. long.;
(19)44°43.44′ N. lat., 124°14.78′ W. long.;
(20)44°42.27′ N. lat., 124°13.81′ W. long.;
(21)44°41.68′ N. lat., 124°15.38′ W. long.;
(22)44°34.87′ N. lat., 124°15.80′ W. long.;
(23)44°33.74′ N. lat., 124°14.43′ W. long.;
(24)44°27.66′ N. lat., 124°16.99′ W. long.;
(25)44°19.13′ N. lat., 124°19.22′ W. long.;
(26)44°15.35′ N. lat., 124°17.37′ W. long.;
(27)44°14.38′ N. lat., 124°17.78′ W. long.;
(28)44°12.80′ N. lat., 124°17.18′ W. long.;
(29)44°09.23′ N. lat., 124°15.96′ W. long.;
(30)44°08.38′ N. lat., 124°16.80′ W. long.;
(31)44°08.30′ N. lat., 124°16.75′ W. long.;
(32)44°01.18′ N. lat., 124°15.42′ W. long.;
(33)43°51.60′ N. lat., 124°14.68′ W. long.;
(34)43°42.66′ N. lat., 124°15.46′ W. long.;
(35)43°40.49′ N. lat., 124°15.74′ W. long.;
(36)43°38.77′ N. lat., 124°15.64′ W. long.;
(37)43°34.52′ N. lat., 124°16.73′ W. long.;
(38)43°28.82′ N. lat., 124°19.52′ W. long.;
(39)43°23.91′ N. lat., 124°24.28′ W. long.;
(40)43°20.83′ N. lat., 124°26.63′ W. long.;
(41)43°17.96′ N. lat., 124°28.81′ W. long.;
(42)43°16.75′ N. lat., 124°28.42′ W. long.;
(43)43°13.98′ N. lat., 124°31.99′ W. long.;
(44)43°13.71′ N. lat., 124°33.25′ W. long.;
(45)43°12.26′ N. lat., 124°34.16′ W. long.;
(46)43°10.96′ N. lat., 124°32.34′ W. long.;
(47)43°05.65′ N. lat., 124°31.52′ W. long.;
(48)42°59.66′ N. lat., 124°32.58′ W. long.;
(49)42°54.97′ N. lat., 124°36.99′ W. long.;
(50)42°53.81′ N. lat., 124°38.58′ W. long.;
(51)42°50.00′ N. lat., 124°39.68′ W. long.;
(52)42°49.14′ N. lat., 124°39.92′ W. long.;
(53)42°46.47′ N. lat., 124°38.65′ W. long.;
(54)42°45.60′ N. lat., 124°39.04′ W. long.;
(55)42°44.79′ N. lat., 124°37.96′ W. long.;
(56)42°45.00′ N. lat., 124°36.39′ W. long.;
(57)42°44.14′ N. lat., 124°35.16′ W. long.;
(58)42°42.15′ N. lat., 124°32.82′ W. long.; and
(59)42°40.50′ N. lat., 124°31.98′ W. long.; ( *2* ) The second season (spring season), which is for the “all-depth” fishery, is open on *(insert dates beginning with May 8 or 9).* The projected catch for this season is 130,801 lb (59 mt). If sufficient unharvested catch remains for additional fishing days, the season will re-open. Dependent on the amount of unharvested catch available, the potential season re-opening dates will be: *(insert dates, no later than July 31)* . If NMFS decides inseason to allow fishing on any of these re-opening dates, notice of the re-opening will be announced on the NMFS hotline
(206)526-6667 or
(800)662-9825. No halibut fishing will be allowed on the re-opening dates unless the date is announced on the NMFS hotline. (The final determination of the season dates will be based on the allowable harvest level and projected 2008 catch rates and on input from a public meeting held by ODFW after the 2008 TAC is set by the IPHC.) ( *3* ) If sufficient unharvested catch remains, the third season (summer season), which is for the “all-depth” fishery, will be open on *(insert dates beginning with August 1)* , or until the combined spring season and summer season quotas in the area between Cape Falcon and Humbug Mountain, OR, totaling 174,401 lb (79 mt), are estimated to have been taken and the area is closed by the Commission, or October 31, whichever is earlier. NMFS will announce on the NMFS hotline in July whether the fishery will re-open for the summer season in August. No halibut fishing will be allowed in the summer season fishery unless the dates are announced on the NMFS hotline. Additional fishing days may be opened if a certain amount of quota remains after August 3 and August 31. If after August 3, greater than or equal to 60,000 lb (27.2 mt) remains in the combined all-depth and inside 40-fm (73-m) quota, the fishery may re-open every Friday through Sunday, beginning August 8 - 10, and ending October 31. If after August 31, greater than or equal to 30,000 lb (13.6 mt) remains in the combined all-depth and inside 40-fm (73-m) quota, and the fishery is not already open every Friday through Sunday, the fishery may re-open every Friday through Sunday, beginning September 5 - 7, and ending October 31. After August 31, the bag limit may be increased to two fish of any size per person, per day. NMFS will announce on the NMFS hotline whether the summer all-depth fishery will be open on such additional fishing days, what days the fishery will be open and what the bag limit is.
(B)The daily bag limit is one halibut of any size per day per person, unless otherwise specified. NMFS will announce on the NMFS hotline any bag limit changes.
(C)During days open to all-depth halibut fishing, no Pacific Coast groundfish may be taken and retained, possessed or landed, except sablefish when allowed by Pacific Coast groundfish regulations, if halibut are on board the vessel.
(D)When the all-depth halibut fishery is closed and halibut fishing is permitted only shoreward of a boundary line approximating the 40-fm (73-m) depth contour, halibut possession and retention by vessels operating seaward of a boundary line approximating the 40-fm (73-m) depth contour is prohibited.
(E)Recreational fishing for groundfish and halibut is prohibited within the Stonewall Bank YRCA. It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the Stonewall Bank YRCA. A vessel fishing in the Stonewall Bank YRCA may not be in possession of any halibut. Recreational vessels may transit through the Stonewall Bank YRCA with or without halibut on board. The Stonewall Bank YRCA is an area off central Oregon, near Stonewall Bank, intended to protect yelloweye rockfish. The Stonewall Bank YRCA is defined by straight lines connecting the following specific latitude and longitude coordinates in the order listed:
(1)44°37.46 N. lat.; 124°24.92 W. long.;
(2)44°37.46 N. lat.; 124°23.63 W. long.;
(3)44°28.71 N. lat.; 124°21.80 W. long.;
(4)44°28.71 N. lat.; 124°24.10 W. long.;
(5)44°31.42 N. lat.; 124°25.47 W. long.; and connecting back to 44°37.46 N. lat.; 124°24.92 W. long.
(vi)The area south of Humbug Mountain, Oregon (42°40.50′ N. lat.) and off the California coast is not managed inseason relative to its quota. This area is managed on a season that is projected to result in a catch of 6,182 lb (2.8 mt).
(A)The fishing season will commence on May 1 and continue 7 days a week until October 31.
(B)The daily bag limit is one halibut of any size per day per person. Flexible Inseason Management for Sport Fisheries Language on flexible inseason management for sport fisheries at 50 CFR 300.63 (c)(2)(v) is proposed to be revised in the same manner as language being revised in section (f)(5)(ii)(E) of the Plan. More specifically, the phrase “north of Cape Falcon, OR” is removed from the sentence so that it reads, “modification of subarea quotas.” As mentioned in paragraphs (c)(1)(iii) and
(iv)of 50 CFR 300.63, unused quota can be moved inseason both north of Cape Falcon, OR, and south of Leadbetter Point, WA, to modify quota in Area 2A sport fisheries if sport fishery subareas are not projected to utilize their respective quotas. Therefore, this revision clarifies the flexible inseason management provisions so that all subarea quotas may be modified inseason, not just subarea quotas north of Cape Falcon. Classification This action has been determined to be not significant for purposes of Executive Order 12866. NMFS has prepared an RIR/IRFA on the proposed changes to the Plan and annual domestic Area 2A halibut management measures. Copies of these documents are available from NMFS (see ADDRESSES ). NMFS prepared an IRFA that describes the economic impact this proposed rule, if adopted, would have on small entities. 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 in the preamble and in the SUMMARY section of the preamble. The IRFA is available from NMFS (see ADDRESSES ). A summary of the IRFA follows: A fish-harvesting business is considered a “small” business by the Small Business Administration
(SBA)if it has annual receipts not in excess of $4.0 million. For related fish-processing businesses, a small business is one that employs 500 or fewer persons. For wholesale businesses, a small business is one that employs not more than 100 people. For marinas and charter/party boats, a small business is one with annual receipts not in excess of $6.5 million. All of the businesses that would be affected by this action are considered small businesses under Small Business Administration guidance. The proposed changes to the Plan, which allocates the catch of Pacific halibut among users in Washington, Oregon and California, would:
(1)reopen the Washington North Coast subarea June sport fishery on the first Tuesday following June 16;
(2)clarify that the Saturday offshore opener in the Washington North Coast subarea June sport fishery is contingent on available quota;
(3)provide flexibility in the date that the entire Washington North Coast subarea sport fishery reopens for one day after June 24;
(4)retain the opening date of May 1 for the Washington South Coast subarea primary sport fishery in 2008 and, starting in 2009, revise the opening date to May 1 if it is a Sunday, otherwise, open on the first Sunday following May 1;
(5)set the Washington South Coast subarea primary sport fishery as a 2-day per week fishery, open Sunday and Tuesday;
(6)set aside 10 percent of the Washington South Coast subarea quota for the nearshore sport fishery once the primary fishery has closed;
(7)set the Washington South Coast subarea nearshore sport fishery as a 4-day per week fishery, open Friday, Saturday, Sunday, and Tuesday;
(8)remove outdated language referring to the 25,000 lb annual tribal allocation resulting from the U.S. v. Washington case;
(9)edit language referring to the number of sport subareas to clarify that there are six rather than seven; and
(10)revise the flexible inseason management provisions for the sport fisheries to allow modification of subarea quotas in all subareas. NMFS also proposes to implement the portions of the Plan and management measures that are not implemented through the IPHC, which includes the sport fishery management measures for Area 2A. These actions are intended to enhance the conservation of Pacific halibut, to provide greater angler opportunity where available, and to protect yelloweye rockfish and other overfished groundfish species from incidental catch in the halibut fisheries. As mentioned in the preamble, WDFW held state meetings and crafted alternatives to adjust management of the sport halibut fisheries in their state. These alternatives were then narrowed by the state and brought to the Council at the Council's September and November 2007 meetings. Generally, by the time the alternatives reach the Council, and because they have been through the state public review process, they are narrowed down into the proposed action and status quo. There were no alternatives that could have similarly improved angler enjoyment of and participation in the fisheries while simultaneously protecting halibut and co-occurring groundfish species from overharvest. In 1995, NMFS implemented the Plan, when the TAC was 520,000 pounds (236 mt). In each of the intervening years between 1995 and the present, minor revisions to the Plan have been made to adjust for the changing needs of the fisheries, even though the TAC reached levels of over 1,000,000 pounds (454 mt), with a peak of 1,480,000 pounds (671 mt) in 2004. Since 2004, there has been very little change in the total allowable catch and sector allocations. In 2006, the Area 2A Halibut TAC set by the IPHC was 1.38 million pounds (626 mt) and for 2007 it was 1.34 million pounds (608 mt). However, preliminary IPHC staff recommendations for the 2008 TAC are lower than the TAC levels since 2001. The preliminary 2008 Area 2A TAC of 1.00 million pounds (454 mt) is lower than previous years due to the IPHC's new stock assessment information, revised selectivity assumptions and revised harvest policy. This is a 25-percent decline from the 2007 TAC. As this is a sizable decline, there may be changes to the regulations described in this proposed rule resulting from IPHC recommendations at their annual meeting in January 2008, or as an outcome of the state public workshops held after the IPHC meeting. Expectations are that any proposed changes in the regulations will be ones that, in implementing the amended Plan, seek to mitigate the adverse impacts of the decline of the TAC in order to maximize available fishing opportunities and benefits to fishing communities. Six hundred fifty-nine vessels were issued IPHC licenses to retain halibut in 2007. IPHC issues licenses for: the directed commercial fishery in Area 2A, including licenses issued to retain halibut caught incidentally in the primary sablefish fishery (225 licenses in 2007); incidental halibut caught in the salmon troll fishery (292 licenses in 2007); and the charterboat fleet (142 licenses in 2007). No vessel may participate in more than one of these three fisheries per year. Individual recreational anglers and private boats are the only sectors that are not required to have an IPHC license to retain halibut. Specific data on the economics of halibut charter operations is unavailable. However, in January 2004, the Pacific States Marine Fisheries Commission (PSMFC) completed a report on the overall West Coast charterboat fleet. In surveying charterboat vessels concerning their operations in 2000, the PSMFC estimated that there were about 315 charterboat vessels in operation off Washington and Oregon. In 2000, IPHC licensed 130 vessels to fish in the halibut sport charter fishery. Comparing the total charterboat fleet to the 130 and 142 IPHC licenses in 2000 and 2007, respectively, approximately 41 to 45 percent of the charterboat fleet could participate in the halibut fishery. The PSMFC has developed preliminary estimates of the annual revenues earned by this fleet and they vary by size class of the vessels and home state. Small charterboat vessels range from 15 to 30 ft (4.572 to 9.144 m), and typically carry 5 to 6 passengers. Medium charterboat vessels range from 31 to 49 ft (9.44 to 14.93 m) in length and typically carry 19 to 20 passengers. (Neither state has large vessels of greater than 49 ft (14.93 m) in their fleet.) Average annual revenues from all types of recreational fishing, whalewatching and other activities ranged from $7,000 for small Oregon vessels to $131,000 for medium Washington vessels. Estimates from the RIR show the recreational halibut fishery generated approximately $2.5 million in personal income to West Coast communities, while the non-tribal commercial halibut fishery generated approximately $2.2 million in income impacts. Because these estimated impacts for the entire halibut fishery overall are less than the SBA criteria for individual businesses, these data confirm that charterboat and commercial halibut vessels qualify as small entities under the Regulatory Flexibility Act (RFA). These changes are authorized under the Pacific Halibut Act, implementing regulations at 50 CFR 300.60 through 300.65, and the Pacific Council process of annually evaluating the utility and effectiveness of Area 2A Pacific halibut management under the Plan. Given the TAC, the proposed sport management measures implement the Plan by managing the recreational fishery to meet the differing fishery needs of the various areas along the coast according to the Plan's objectives. The measures will be very similar to last year's management measures. The changes to the Plan and domestic management measures are minor changes and are intended to help prolong the halibut season, provide increased recreational harvest opportunities, or clarify sport fishery management for fishermen and managers. There are no large entities involved in the halibut fisheries; therefore, none of these changes to the Plan and domestic management measures will have a disproportionate negative effect on small entities versus large entities. These changes do not include any reporting or recordkeeping requirements. These changes will also not duplicate, overlap or conflict with other laws or regulations. Consequently, these changes to the Plan and annual domestic Area 2A halibut management measures are not expected to meet any of the RFA tests of having a “significant” economic impact on a “substantial number” of small entities. Nonetheless, NMFS has prepared an IRFA. Through this proposed rule, NMFS is requesting comments on these conclusions. Pursuant to Executive Order 13175, the Secretary recognizes the sovereign status and co-manager role of Indian tribes over shared Federal and tribal fishery resources. At section 302(b)(5), the Magnuson-Stevens Fishery Conservation and Management Act establishes a seat on the Pacific Council for a representative of an Indian tribe with federally recognized fishing rights from California, Oregon, Washington, or Idaho. The U.S. Government formally recognizes that the 12 Washington Tribes have treaty rights to fish for Pacific halibut. In general terms, the quantification of those rights is 50 percent of the harvestable surplus of Pacific halibut available in the tribes' usual and accustomed (U and A) fishing areas (described at 50 CFR 300.64). Each of the treaty tribes has the discretion to administer their fisheries and to establish their own policies to achieve program objectives. Accordingly, tribal allocations and regulations, including the proposed changes to the Plan, have been developed in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus. List of Subjects in 50 CFR Part 300 Fishing, Fisheries, and Indian fisheries. Dated: December 27, 2007 John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 300 is proposed to be amended as follows: PART 300—INTERNATIONAL FISHERIES REGULATIONS 1. The authority citation for part 300 continues to read as follows: Authority: 16 U.S.C. 773 *et seq.* 2. In § 300.63, paragraph (c)(2)(v) is revised to read as follows: § 300.63 Catch sharing plan and domestic management measures in Area 2A.
(c)* * *
(2)* * *
(v)Modification of subarea quotas. [FR Doc. E7-25535 Filed 12-31-07; 8:45 am] BILLING CODE 3510-22-S 73 1 Wednesday, January 2, 2008 Notices DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request—Food Stamp Application, Form FNS-252 and a New On-Line Application for Stores, Form FNS-252-E AGENCY: Food and Nutrition Service, USDA. ACTION: Notice. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on proposed information collections. DATES: Written comments must be received on or before March 3, 2008. ADDRESSES: Comments are invited on:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected; and,
(d)ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Andrea Gold, Chief, Retailer Management Branch, Benefit Redemption Division, Food and Nutrition Service, U. S. Department of Agriculture, 3101 Park Center Drive, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Andrea Gold at
(703)305-1863 or via e-mail to *BRDHQ-WEB@fns.usda.gov.* All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Alexandria, Virginia 22302, Room 404. All responses to this notice will be summarized and included in the request for OMB approval. All comments will be a matter of public record. FOR FURTHER INFORMATION CONTACT: The public can download the Form FNS-252 from the FNS Web site at: *http://www.fns.usda.gov/fsp/retailers.* Requests for additional information or copies of the information collection should be directed to Andrea Gold at
(703)305-2456. SUPPLEMENTARY INFORMATION: *Title:* Food Stamp Program —Store Applications. *OMB Number:* 0584-0008. *Form Number:* FNS-252, 252-E, 252-2, and 252-C. *Expiration Date:* March 31, 2009. *Type of Request:* Revision of a currently approved collection of information. *Abstract:* Section 9 of the Food Stamp Act of 1977, as amended, (the Act) (7 U.S.C. 2018), requires retail food stores to submit applications to the Food and Nutrition Service
(FNS)for approval prior to participating in the Food Stamp Program (FSP). Currently, retailers who want to apply for authorization to participate in the FSP must complete Form FNS-252 (a paper application) manually. Once completed, applicant retailers must mail/deliver the application to the appropriate FNS Field Office, along with other required documents, for processing. A very small percentage of entities (1%) fax their applications. FNS field offices review applications to ensure that the firm is eligible. The firm is then authorized to accept FSP benefits, or denied. Field office staff manually enters the store application data into the nationwide Store Tracking and Redemption System (STARS) database using a series of on-line screens. FNS is committed to complying with the E-Government Act of 2002, which requires that, when practicable, federal agencies use electronic forms, electronic filing, and electronic signature to conduct official business. Current technological opportunities allow us to improve information collection in accordance with these statutes. FNS is developing an on-line application, Form FNS-252-E, as an electronic alternative for retailers who wish to complete and submit an application via the Internet from the FNS Web site. FNS regional and field office staff have suggested ways the data collection on the current Form FNS-252 could be improved when designing the new on-line application. As a result, FNS will revise the current Form FNS-252. The purpose of the revision to the currently approved collection for the Food Stamp Program Application for Stores, Form FNS-252, is to continue the authority for the established application form and to update the number of collection hours. Efforts are being made to streamline the information collected on the application and make it easier to understand. Questions may be re-phrased or combined in order to provide clearer language. Those questions that no longer have any relevance to the authorization process will be deleted. We will include detailed instructions and provide on-line help, where appropriate. The application form will be developed in a customer and computer friendly format. FNS also intends to amend the information contained on pages 6 and 7 of the current Form FNS-252. These changes are based on recommendations from FNS” legal counsel to reduce redundant, ambiguous and technical language, and to provide clearer language describing our training requirements and the penalties for violating Program rules. Due to the importance of the information contained in this section, and to ensure that all our retailer applications provide the same information, FNS is also seeking approval to revise all forms associated with OMB No. 0584-0008, which are the Meal Service application, Form FNS-252-2, and the supplemental to the Retailer Application, Form FNS-252-C. We are soliciting public comments on the content, format, and design of the revised Form FNS-252 and the new on-line Form FNS-252-E. We do not know how many retailers will avail themselves of the on-line application; however, we estimate that, initially, approximately 40 percent of all retailers will use the on-line Form FNS-252-E. We are planning to reach out to retailers and industry representatives to promote this on-line alternative. As noted above, we will evaluate the revised Form FNS-252 and the new on-line application, Form FNS-252-E, on the appropriateness and clarity of the form's content, format, and design. Before making final changes to these forms, we will consider feedback from the public. The burden associated with the Form FNS-252 and the on-line Form FNS-252-E is determined from the number of all newly authorized stores obtained from the STARS Database. We used the number of newly authorized retailers (21,801) from FY 2006 as the base number for current FY 2007 estimates. We further estimate that 40 percent (8,720) of the 21,801 applications will be submitted using the on-line Form FNS-252-E and 60 percent (13,081) will be submitted using Form FNS-252 (paper application). In our last submission to OMB, we estimated that it takes a retailer, on average, 19.9 minutes to complete Form FNS-252. For this submission to OMB, as a result of anticipated improvements, we estimate that it will take retailers, on average, 18.9 minutes to complete either application form (Form FNS-252-E or Form FNS-252). We estimate the annual burden for the new on-line Form FNS-252-E to be 2,747 hours [8,720 (21,801 affected retailers × 40% new authorizations) × .315 (18.9 minutes)]. We further estimate the annual burden for the revised Form FNS-252 to be 4,339 hours [13,081 (21,801 affected retailers × 60% new authorizations) × .332 (18.9 minutes)]. *Respondents:* Retail food stores. *Estimated Number of Respondents:* 45,765. *Number of Responses per Respondent:* 1. *Estimated Number of Annual Responses:* 73,074. *Estimated Time per Response:* 0.114 or 7 minutes (rounded from 6 minutes and 50 seconds). *Estimated Total Annual Burden on Respondents:* 8,309. Dated: December 19, 2007. Roberto Salazar, Administrator, Food and Nutrition Service. BILLING CODE 3410-30-P EN02JA08.005 EN02JA08.006 EN02JA08.007 EN02JA08.008 EN02JA08.009 EN02JA08.010 EN02JA08.011 EN02JA08.012 [FR Doc. 07-6255 Filed 12-31-07; 8:45 am]
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