Unknown. Final rule

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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-2008-01-11.xml --- 73 8 Friday, January 11, 2008 Contents Agriculture Agriculture Department See Food Safety and Inspection Service See Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-309 2000-2001 E8-322 Army Army Department See Engineers Corps NOTICES Non-Exclusive, Exclusive License or Partially Exclusive Licensing: U.S. Patent Concerning Polymer-Template Complex Produced by Enzymatic Polymerization, 2011 E8-369 Blind Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Centers Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities:

Proposed Collection; Comment Request, 2043-2044 E8-158 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2044-2045 E8-154 Children Children and Families Administration PROPOSED RULES Adoption and Foster Care Analysis and Reporting System, 2082-2142 E7-24860 NOTICES Public Comment on the Proposed Adoption of ANA Program Polices and Procedures, 2045-2055 08-56 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration See Patent and Trademark Office Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List;

Proposed Addition and Deletions, 2003-2004 E8-345 Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2078-2079 E8-305 Defense Defense Department See Army Department See Engineers Corps NOTICES Arms sales notification; transmittal letter, etc., 2006-2010 08-74 Meetings: Defense Advisory Board for Employer Support of the Guard and Reserve, 2010-2011 08-87 Reserve Forces Policy Board, 2011 E8-381 Election Election Assistance Commission NOTICES Meetings;

Sunshine Act, 2015 08-93 Employment Employment and Training Administration NOTICES Affirmative Determination Regarding Application for Reconsideration: Philips Lighting Company Lamps Division; Danville, Kentucky, 2068 E8-288 Energy Energy Department See Energy Efficiency and Renewable Energy Office See Federal Energy Regulatory Commission See National Nuclear Security Administration RULES Loan Guarantees for Projects That Employ Innovative Technologies, 1961-1962 E8-325 NOTICES Meeting:

Climate Change Science Program Product Development Advisory Committee, 2015 E8-347 Unconventional Resources Technology Advisory Committee, 2015-2016 E8-331 Meetings: Biomass Research and Development Technical Advisory Committee, 2016 E8-364 Ultra-Deepwater Advisory Committee, 2016-2017 E8-363 Energy Energy Efficiency and Renewable Energy Office NOTICES Finding of No Significant Impact: Energy Efficient Performance Requirements for New Federal Commercial and Residential Buildings, 2017-2018 E8-324 Engineers Engineers Corps NOTICES Final Environmental Impact Statement Widening of the Freeport Ship Channel in Freeport, Brazoria County, TX, 2011-2013 E8-377 Intent to Prepare a Draft Feasibility Study and Environmental Impact Statement for Modification of the Coos Bay Navigational Channel, Coos County, OR, 2013-2014 E8-367 Meetings:

Estuary Habitat Restoration Council; Open Meeting, 2014-2015 E8-374 EPA Environmental Protection Agency RULES Acquisition Regulation: Use of Award Term Incentives; Amendments, 1978-1982 E8-356 Thiabendazole; Threshold of Regulation Determination, 1976-1978 E8-267 NOTICES Environmental Impact statements: Availability of EPA Comments, 2025-2026 E8-357 Environmental Impact Statements; Notice of Availability, 2027 E8-358 Meetings: Board of Scientific Counselors, Human Health Risk Assessment Subcommittee, 2027-2028 E8-361 Executive Executive Office of the President See Trade Representative, Office of United States FAA Federal Aviation Administration RULES Airworthiness directives:

Bombardier Model CL 600 2B19 (Regional Jet Series 100 & 440) Airplanes, 1964-1968 E8-249 Intertechnique Zodiac Aircraft Systems, 1968-1970 E7-25391 Federal Energy Federal Energy Regulatory Commission NOTICES Order on Complaint and Setting Case for Hearing and Settlement Judge Proceedings, 2018-2023 E8-301 Federal Housing Federal Housing Finance Board NOTICES Federal Home Loan Bank Members Selected for Community Support Review, 2028-2040 08-3 Federal Railroad Federal Railroad Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 2074-2076 E8-295 Petition for Waiver of Compliance, 2076 E8-312 Petition for Waiver of Compliance: WATCO Companies, Inc., 2076-2077 E8-308 Federal Reserve Federal Reserve System NOTICES Change in Bank Control Notices; Acquisition of Shares of Bank or Bank Holding Companies, 2040-2041 E8-317 E8-319 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 2041 E8-318 E8-320 FTC Federal Trade Commission NOTICES Granting of Request for Early Termination of the Waiting Period Under the Premerger Notification Rules, 2042-2043 08-77 Food Food and Drug Administration PROPOSED RULES Requirements for Human Blood and Blood Components Intended for Transfusion or Further Manufacturing Use:

Extension of Comment Period, 1983 E8-297 NOTICES Kemira Oyi; Filing of Food Additive Petition (Animal Use); Partially Ammoniated Formic Acid, 2055 E8-316 Meetings: Anti-Infective Drugs Advisory Committee, 2055-2056 E8-343 Food Food Safety and Inspection Service NOTICES Meetings: Codex Committee on Natural Mineral Waters, 2001-2002 E8-310 Foreign Foreign Claims Settlement Commission NOTICES Meetings; Sunshine Act, 2067-2068 08-100 Forest Forest Service NOTICES Nebraska Travel Management Rule Implementation Project:

Nebraska National Forest, Nebraska and South Dakota, 2002-2003 08-80 Health Health and Human Services Department See Centers for Medicare & Medicaid Services See Children and Families Administration See Food and Drug Administration See National Institutes of Health Homeland Homeland Security Department See Transportation Security Administration NOTICES Meetings: Homeland Security Information Network Advisory Committee, 2058 E8-292 Housing Housing and Urban Development Department RULES Good Neighbor Next Door Sales Program:

Correction, 1974-1975 E8-355 NOTICES Announcement of Funding Awards for the Self-Help Homeownership Opportunity Program: Fiscal Years 2006 and 2007, 2059 E8-362 Federal Property Suitable as Facilities to Assist the Homeless, 2059-2060 E8-124 Interior Interior Department See Land Management Bureau See National Park Service See Surface Mining Reclamation and Enforcement Office NOTICES Establishment of National Geospatial Advisory Committee, 2060 08-70 International International Trade Administration NOTICES Amended Final Results of Antidumping Duty Changed-Circumstances:

Gray Portland Cement and Clinker from Mexico, 2004 E8-334 Antidumping Duty Investigation: Steel Wire Garment Hangers from the People's Republic of China, 2004-2005 E8-333 Consolidated Decision on Applications; Duty-Free Entry of Electron Microscopes: University of Utah, et al., 2005 E8-332 Justice Justice Department See Foreign Claims Settlement Commission NOTICES Lodging of Consent Decree Under the Clean Water Act, 2066-2067 08-53 Lodging of Settlement Agreement Pursuant to the Comprehensive Environmental Response, Compensation and Liability, 2067 08-54 Labor Labor Department See Employment and Training Administration Land Land Management Bureau NOTICES Alaska Native Claims Selection, 2060-2061 E8-328 Availability of Draft Environmental Impact Statement:

Environmental Impact Report and Draft Land Use Plan Amendments/ Proposed Sunrise Powerlink Project, 2062-2063 E8-280 Westside Irrigation District Land Conveyance Project, Big Horn and Washakie Counties, Wyoming, 2061-2062 E8-279 Meetings: Sierra Front Northwestern Basin Resource Advisory Council, 2063 E8-346 Notice of Emergency Closure of Certain Public Lands to Motorized Vehicles in Twin Falls and Owyhee Counties, Idaho and Elko County, Nevada, 2063-2064 E8-306 National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 2077-2078 E8-296 NIH National Institutes of Health NOTICES Meetings: National Cancer Institute, 2056 08-64 National Center for Research Resources, 2056-2057 08-65 National Institute of Allergy and Infectious Diseases, 2057 08-67 National Institute of Biomedical Imaging and Bioengineering, 2057 08-66 National Institute of Dental and Craniofacial Research, 2057 08-68 National National Nuclear Security Administration NOTICES Complex Transformation Supplemental Programmatic Environmental Impact Statement, 2023-2025 E8-365 NOAA National Oceanic and Atmospheric Administration PROPOSED RULES Endangered and Threatened Wildlife and Plants:

Endangered Status for Black Abalone, 1986-1999 E8-335 NOTICES Meetings: Pacific Fishery Management Council, 2005-2006 E8-336 National Park National Park Service NOTICES Minor Boundary Revision at Mesa Verde National Park, 2064-2065 08-59 National Register of Historic Places; Pending Nominations and Related Actions, 2065-2066 08-31 National Science National Science Foundation NOTICES Meetings: Alan T. Waterman Award Committee, 2068 E8-302 Meetings; Sunshine Act, 2068 E8-326 Office of U.S.

Trade Office of United States Trade Representative See Trade Representative, Office of United States Patent Patent and Trademark Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2006 E8-327 Railroad Railroad Retirement Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2069 E8-311 SEC Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 2069-2070 E8-405 Self-Regulatory Organizations;

Proposed Rule Changes: International Securities Exchange, LLC, 2070-2072 E8-303 New York Stock Exchange LLC, 2072 E8-304 SBA Small Business Administration RULES Seals and insignia, 1962-1964 E8-338 NOTICES California Disaster Number CA-00074, 2072-2073 E8-342 Meetings: National Small Business Development Center Advisory Board, 2073 E8-337 Oklahoma Disaster Number OK-00016, 2073 E8-340 E8-341 Washington Disaster Number WA-00016, 2073-2074 E8-339 Social Social Security Administration RULES Methods for Conducting Personal Conferences When Waiver of Recovery Title II or XVI Overpayment Cannot Be Approved, 1970-1974 E8-314 NOTICES Rescission of SSR 94-4p, Policy Interpretation Ruling:

Title II of the Social Security Act and Title IV of the Federal Mine Safety and Health Act of 1977, etc., 2074 E8-313 Surface Surface Mining Reclamation and Enforcement Office PROPOSED RULES New Mexico Regulatory Program, 1983-1986 E8-359 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2066 08-71 Surface Surface Transportation Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2078 E8-382 Trade Trade Representative, Office of United States NOTICES Andean Trade Preference Act (ATPA), as Amended:

Notice Regarding the 2007 Annual Review, 2068-2069 E8-307 Transportation Transportation Department See Federal Aviation Administration See Federal Railroad Administration See National Highway Traffic Safety Administration See Surface Transportation Board Transportation Transportation Security Administration NOTICES Transportation Worker Identification Credential (TWIC): Enrollment Dates; Ports of Bourne, MA; Green Bay, WI; Pittsburgh, PA; Texas City, TX; Salisbury, MD; and Toledo, OH, 2058-2059 E8-360 Treasury Treasury Department See Comptroller of the Currency RULES Financial Crimes Enforcement Network:

Amendment Regarding Financial Institutions Exempt from Establishing Anti-Money Laundering Programs, 1975-1976 E8-315 Veterans Veterans Affairs Department NOTICES Meetings: Health Services Research and Development Service Merit Review Board, 2079-2080 08-52 Separate Parts In This Issue Part II Health and Human Services Department, Children and Families Administration, 2082-2142 E7-24860 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 8 Friday, January 11, 2008 Rules and Regulations DEPARTMENT OF ENERGY 10 CFR Part 609 RIN 1901-AB21 Loan Guarantees for Projects That Employ Innovative Technologies AGENCY: Office of the Chief Financial Officer, Department of Energy.

ACTION: Final rule. SUMMARY: The Department of Energy

(DOE)today publishes a final rule to amend DOE's October 23, 2007 final rule concerning loan guarantees for projects employing innovative technologies. This final rule removes an extraneous paragraph, originally included in the proposed rule, that was inadvertently retained in the October 23 final rule. DATES: This rule is effective January 11, 2008. FOR FURTHER INFORMATION CONTACT: David G. Frantz, Director, Loan Guarantee Program Office, Office of the Chief Financial Officer, 1000 Independence Avenue, SW., Washington, DC 20585-0121,

(202)586-8336, e-mail: *lgprogram@hq.doe.gov* . SUPPLEMENTARY INFORMATION: I. Background On October 23, 2007 (72 FR 60115), DOE promulgated a rule establishing procedures for the loan guarantee program authorized by Title XVII of the Energy Policy Act of 2005 (“Act”) (42 U.S.C. 16511-16514). Title XVII authorizes the Secretary of Energy, after consultation with the Secretary of the Treasury, to make loan guarantees for projects that “(1) avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases; and

(2)employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued.” (42 U.S.C. 16513(a)) Earlier, on May 16, 2007, the Department had published a Notice of Proposed Rulemaking and Opportunity for Comment (NOPR, 72 FR 27471) to establish regulations for the Title XVII loan guarantee program. Prior to publication of the final rule, on August 8, 2006, DOE had issued Guidelines for Proposals Submitted in Response to the First Solicitation for loan guarantees. The Guidelines were published in the **Federal Register** on August 14, 2006 (71 FR 46451), and the First Solicitation was issued on August 8, 2006. II. Discussion of Amendment Today's final rule amends the October 23, 2007 final rule by removing a paragraph in section 609.1 regarding the application of the final rule to Pre-Applications, Applications, Conditional Commitments, and Loan Guarantee Agreements that were issued or entered into pursuant to the First Solicitation. DOE proposed in the NOPR that in order to ensure that DOE complied with the Revised Continuing Appropriations Resolution, 2007 (Pub. L. 110-5) but did not prejudice Pre-Applicants that responded to the First Solicitation, the regulations would specify that they do not apply to the Pre-Applications, Applications, Conditional Commitments, and Loan Guarantee Agreements issued or entered into pursuant to the First Solicitation. Proposed § 609.1(c)(1). DOE proposed that the only exceptions to this would be the default, recordkeeping, and audit requirements proposed for inclusion in DOE's regulations. Proposed § 609.1(c)(2). DOE also proposed in the NOPR to permit DOE and an Applicant to agree in a Loan Guarantee Agreement entered into pursuant to the First Solicitation that additional provisions of DOE's regulations would apply to the particular project. Proposed § 609.1(c)(3). DOE received and responded to public comments on these issues in the notice of final rulemaking (72 FR 60132-60133). In the final rule, DOE modified the application of part 609 to those who responded to the First Solicitation by providing that “[e]xcept as specified in [section 609.1(c)(1)], these regulations apply to all projects and loan guarantees pursuant to Title XVII, including those pursuant to the First Solicitation.” (72 FR 60133). Thus, the final rule provides that DOE's regulations apply to all projects pursuant to Title XVII, except for section 609.3 (“Solicitations”), section 609.4 (“Submission of pre-applications”), and section 609.5 (“Evaluation of pre-applications”). DOE, however, inadvertently left in the final rule proposed paragraph 609.1(c)(3), re-numbered as paragraph 609.1(c)(2) in the final rule, which would allow DOE and Applicants who submitted Pre-Applications pursuant to the First Solicitation to agree to make additional provisions of Part 609 applicable to their projects. The change in coverage makes this paragraph of section 609.1 superfluous, and DOE removes paragraph (c)(2) with today's final rule. III. Issuance of a Final Rule DOE has determined, pursuant to 5 U.S.C. 553(b)(B) and (d)(3), that prior notice and an opportunity for public comment on this rule are unnecessary and there is good cause to waive the requirement for a 30-day delay in effective date. DOE has determined that the revision DOE is making to Part 609 is a technical change or correction about which the public would have no particular interest in providing comments. As explained earlier in this preamble, DOE is revising section 609.1 to remove a paragraph allowing DOE and Applicants who submitted Applications pursuant to the First Solicitation to agree to make other provisions of part 609 applicable to those projects. This paragraph was included inadvertently in the final rule, and is superfluous because 609.1(c)(1) specifies which sections of part 609 do not apply to such Applications. Based on the foregoing, DOE finds that good cause exists to waive both the requirement to provide prior notice and an opportunity to comment on this rulemaking and the requirement for a 30-day delay in effective date. IV. Procedural Review Requirements A. Executive Order 12866 Today's regulatory action has been determined not to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action is not subject to review under that Executive Order by the Office of Information and Regulatory Affairs

(OIRA)of the Office of Management and Budget (OMB). B. National Environmental Policy Act of 1969 DOE has determined that this final rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR, part 1021, which applies to a rulemaking that amends an existing rule or regulation which does not change the environmental effect of the rule or regulation being amended. C. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. DOE has found that prior notice and opportunity for public comment are not required for this rulemaking. Therefore, the analytical requirements of the Regulatory Flexibility Act do not apply to today's rule. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. D. Paperwork Reduction Act This rule does not impose any new collection of information subject to review and approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ). E. Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. This final rule does not impose a Federal mandate on State, local or tribal governments. The rule would not result in the expenditure by State, local, and tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995. F. Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a Family Policymaking Assessment for any rulemaking that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment. G. Executive Order 13132 Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. DOE has determined that this rule would not preempt State law and 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. No further action is required by Executive Order 13132. H. Executive Order 12988 DOE has determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988. I. Treasury and General Government Appropriations Act, 2001 DOE has reviewed today's rule under OMB and DOE guidelines concerning dissemination of information to the public and has concluded that it is consistent with applicable policies in those guidelines. J. Executive Order 13211 Today's rule would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects. K. Congressional Notification As required by 5 U.S.C. 801, the Department will submit to Congress a report regarding the issuance of today's final rule prior to the effective date set forth at the outset of this rule. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2). V. Approval by the Office of the Secretary of Energy Issuance of this rule has been approved by the Office of the Secretary. List of Subjects in 10 CFR Part 609 Administrative practice and procedure, Energy, Loan programs, and Reporting and recordkeeping requirements. Issued in Washington, DC, on January 7, 2008. Steve Isakowitz, Chief Financial Officer. For the reasons set out in the preamble, DOE amends part 609 of subchapter H of chapter II of title 10 of the Code of Federal Regulations as set forth below: PART 609—LOAN GUARANTEES FOR PROJECTS THAT EMPLOY INNOVATIVE TECHNOLOGIES 1. The authority citation for part 609 continues to read as follows: Authority: 42 U.S.C. 7254, 16511-16514. § 609.1 [Amended] 2. Section 609.1 is amended by removing paragraph (c)(2) and redesignating paragraph (c)(1) as paragraph (c). [FR Doc. E8-325 Filed 1-10-08; 8:45 am] BILLING CODE 6450-01-P SMALL BUSINESS ADMINISTRATION 13 CFR Part 101 RIN 3245-AF68 Seals and Insignia AGENCY: U.S. Small Business Administration. ACTION: Direct final rule. SUMMARY: The U.S. Small Business Administration

(SBA)is revising its regulations specifying the description and authorized use of its official seal. These revisions will further define the authorized and unauthorized use of the official seal by SBA and add criteria for approving and denying requests to use the official seal. SBA believes that this rule is non-controversial, and the Agency anticipates no significant adverse comment. If SBA receives a significant adverse comment, it will withdraw the rule. DATES: This rule is effective February 25, 2008 without further action, unless significant adverse comment is received by February 11, 2008. If significant adverse comment is received, SBA will publish a timely withdrawal of the rule in the **Federal Register** . ADDRESSES: You may submit comments, identified by RIN 3245-AF68, by one of the following methods:

(1)Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments; or

(2)Mail/Hand Delivery/Courier: Julie Clowes, Attorney Advisor, Office of General Counsel, 409 Third Street, SW., Washington, DC 20416. SBA will post all comments on *http://www.Regulations.gov* . If you wish to submit comments that contain confidential business information

(CBI)as defined in the User Notice at *http://www.Regulations.gov* , please submit the comments to Julie Clowes, at 409 Third Street, SW., Washington, DC 20416, or send an e-mail to *julie.clowes@sba.gov* . Highlight the comments that you consider to contain the CBI and explain why you believe SBA should hold this information as confidential. SBA will review the information and make the final determination of whether it will publish the information or not. FOR FURTHER INFORMATION CONTACT: Julie Clowes, Office of General Counsel, at

(202)619-0445 or by e-mail at: *julie.clowes@sba.gov* . SUPPLEMENTARY INFORMATION: A. Statutory Authority and Background Section 5(a) of the Small Business Act (15 U.S.C. 634(a)) gives SBA the power to adopt, alter and use a seal which shall be judicially noticed. When initially created, the official seal was only used to certify or authenticate official SBA records. SBA's regulations at 13 CFR 101.105 were narrowly constructed to reflect that one use. Through the years, the Agency has discovered a need to formally identify itself to the public through use of the official seal. This revision to 13 CFR 101.105 broadens SBA's regulatory authority to use its official seal and establishes penalties for unauthorized use. In order to gain a better understanding of what may or may not be an appropriate use of an official Federal agency seal, SBA first researched the Federal laws affecting use of an agency's seal and the seal regulations of other Federal agencies. The research showed that use of seals by Federal agencies is rather varied. Many agencies authorize use for marketing and outreach purposes such as awards, certificates, plaques, flags, business cards, signage and publications. Because this type of use identifies with the mission of the Agency, SBA incorporated these marketing uses into the revised regulations. Additionally, SBA identified unauthorized uses of the seal, emphasizing the need to prevent an actual or implied endorsement of a commercial product or service. A subsection on how to request written permission from the Administrator to use the SBA seal and a statement of the penalties, as defined in the U.S. Code, were also incorporated into the revised regulations. The Agency believes there is good cause to bypass notice and comment and proceed to a direct final rule pursuant to 5 U.S.C. 553(b). The rule is non-controversial and merely alters who may use SBA's official seal and for what purpose. Because this rule only impacts Agency procedure and practice, notice and comment is unnecessary. Although SBA believes this direct final rule will not elicit any significant adverse comments, if such comments are received, SBA will publish a timely notice of withdrawal in the **Federal Register** . B. Compliance With Executive Orders 12866, 12988, and 13132, the Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory Flexibility Act (5 U.S.C. 601-602) The Office of Management and Budget

(OMB)has determined that this rule does not constitute a significant regulatory action under Executive Order 12866. This rule meets applicable standards set forth in §§ 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. This action does not have retroactive or preemptive effect. This rule will not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purposes of Executive Order 13132, SBA determines that this rule has no federalism implications warranting preparation of a federalism assessment. SBA has determined that this rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., Chapter 35. The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires administrative agencies to consider the effect of their actions on small entities, small non-profit enterprises, and small local governments. Pursuant to the RFA, when an agency issues a rule, the agency must prepare a regulatory flexibility analysis which describes the impact of the rule on small entities. However, section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. In this case, the regulations address the administrative requirements for the Agency's use of its official seal. In other words, this rule will not result in the direct regulation of small entities, so no further analysis is required by the RFA. Therefore, SBA certifies that this rule will not have a significant economic impact on a substantial number of small entities within the meaning of RFA. List of Subjects in 13 CFR Part 101 Administrative practice and procedure, Authority delegations, Intergovernmental relations, Investigations, Organizations and functions, Reporting and recordkeeping requirements, Seals and insignia. For the reasons set forth in the preamble, amend part 101 of title 13 of the Code of Federal Regulations as follows: PART 101—ADMINISTRATION 1. The authority citation for part 101 continues to read as follows: Authority: 5 U.S.C. 552 and App. 3, secs. 2, 4(a), 6(a), and 9(a)(1)(T); 15 U.S.C. 633, 634, 687; 31 U.S.C. 6506; 44 U.S.C. 3512; E.O. 12372 (July 14, 1982), 47 FR 30959, 3 CFR, 1982 Comp., p. 197, as amended by E.O. 12416 (April 8, 1983), 48 FR 15887, 3 CFR, 1983 Comp., p. 186. 2. Revise § 101.105 to read as follows: § 101.105 Who may use SBA's official seal and for what purpose?

(a)*General.* This section describes the official seal of the SBA and prescribes rules for its use.

(b)*Official Seal.* The official seal of the SBA is illustrated below. ER11JA08.000

(c)*Authorized Use.* The official seal and reproductions of the seal may only be used as follows:

(1)Certify and authenticate originals and copies of any books, records, papers or other documents on file within SBA or extracts taken from them or to provide certification for the purposes authorized in 28 U.S.C. 1733;

(2)SBA award certificates and medals;

(3)SBA awards for career service;

(4)Security credentials and employee identification cards;

(5)Business cards for SBA employees;

(6)Official SBA signs;

(7)Plaques; the design of the SBA seal may be incorporated in plaques for display in Agency auditoriums, presentation rooms, lobbies, offices and on buildings occupied by SBA;

(8)The SBA flag;

(9)Officially authorized reports or publications of the SBA; or

(10)For such other purposes as determined necessary by the Administrator.

(d)*Unauthorized use.* The official seal shall not be used, except as authorized by the Administrator, in connection with:

(1)Contractor operated facilities;

(2)Souvenir or novelty items;

(3)Toys or commercial gifts or premiums;

(4)Letterhead design, except on official SBA stationery;

(5)Clothing or equipment; or

(6)Any article which may disparage the seal or reflect unfavorably upon SBA.

(e)SBA's seal will not be used in any manner which implies SBA endorsement of commercial products or services or of the user's policies or activities.

(f)*Reproduction of Official Seal.* Requests for permission to reproduce the SBA seal in circumstances other than those listed in paragraph

(c)of this section must be made in writing to the Administrator. The decision whether to grant permission will be made in writing on a case-by-case basis, in consultation with the General Counsel, with consideration of any relevant factors which may include the benefit or cost to the Agency of granting the request; the unintended appearance of endorsement or authentication by SBA; the potential for misuse; the reputability of the use; the extent of control by SBA over the use; and the extent of control by SBA over distribution of any products or publications bearing the SBA seal.

(g)*Penalties for Unauthorized Use.* Fraudulent or wrongful use of SBA's seal can lead to criminal penalties under 18 U.S.C. 506 or 18 U.S.C. 1017. Dated: January 4, 2008. Steven C. Preston, Administrator. [FR Doc. E8-338 Filed 1-10-08; 8:45 am] BILLING CODE 8025-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0047; Directorate Identifier 2007-NM-197-AD; Amendment 39-15329; AD 2008-01-04] RIN 2120-AA64 Airworthiness Directives; Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are superseding an existing airworthiness directive

(AD)for the products listed above. This 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: The Bombardier CL-600-2B19 airplanes have had a history of flap failures at various positions for several years. Flap failure may result in a significant increase in required landing distances and higher fuel consumption than planned during a diversion. * * * We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective February 15, 2008. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of September 5, 2007 (72 FR 46555, August 21, 2007). ADDRESSES: You may examine the AD docket on the Internet at *http://www.regulations.gov* or in person at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC. FOR FURTHER INFORMATION CONTACT: Dan Parrillo, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone

(516)228-7305; fax

(516)794-5531. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking

(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on October 17, 2007 (72 FR 58763) and proposed to supersede AD 2007-17-07, Amendment 39-15165 (72 FR 46555, August 21, 2007). That NPRM proposed to correct an unsafe condition for the specified products. That NPRM proposed to retain the requirements of AD 2007-17-07, i.e., revising the airplane flight manual

(AFM)to incorporate Canadair Regional Jet Temporary Revision

(TR)RJ/165, dated July 6, 2007, into the AFM; adding operational procedures into the AFM; training flight crewmembers and operational control/dispatch personnel on the operational procedures; and doing corrective “maintenance actions.” That NPRM also proposed to require training flight crewmembers on reduced or zero flap landing, and doing additional corrective “maintenance actions” that include a pressure test of the flexible drive-shaft, and corrective actions if necessary. You may obtain further information by examining the MCAI in the AD docket. Comments We gave the public the opportunity to participate in developing this AD. We considered the comments received. Request To Exclude Certain Parts From Inspection Comair requests that we exclude from the proposed actions actuators with less than 2,000 flight hours since new or since repair as of July 12, 2007 (the issue date of Bombardier Service Bulletin 601R-27-150). Comair states that those actuators would not require the inspections of Part C of the Accomplishment Instructions of the service bulletin. Comair suggests that paragraph “(f)(3)” of the NPRM contain a statement qualifying under what conditions flap actuators must comply with Part C of the service bulletin by stating that new actuators, and those recently repaired where it can be shown that the inboard pinion shaft seals, part numbers (P/Ns) 853SC177-1/-2, were replaced, should be exempt from Part C (low temperature torque check test). We infer that Comair meant to refer to paragraph (g)(3) of the NPRM. We referred to Bombardier Service Bulletin 601R-27-150 as the appropriate source of service information for accomplishing the actions specified in paragraph (g)(3) of the NPRM. Paragraph (g)(3) of the NPRM proposes to require doing actions in accordance with Part C of the service bulletin. We agree that the actions specified in paragraph (g)(3) of this AD apply only to certain actuators as specified in paragraph 1.D., “Compliance,” of the service bulletin. The actions in paragraph (g)(3) of this AD do not apply to new actuators with 2,000 or fewer flight hours and repaired actuators that have 2,000 or fewer flight hours since the pinion seals were changed. We have coordinated with TCCA, and we have revised paragraph (g)(3) of this AD to clarify which airplanes are subject to that paragraph. Request To Remove Requirement Specified in Paragraph (g)(3) of the NPRM Mesaba Airlines requests that we remove the requirement proposed in paragraph (g)(3) of the NPRM to do a low temperature torque test of the flap actuators and all applicable corrective actions. Mesaba Airlines states that Bombardier and the flap actuator manufacturer (Eaton) are very close to certifying a new seal for the flap actuator. Mesaba Airlines explains that this new seal is intended to fix the internal fluid leakage issue in the actuator that could result in an actuator problem (and result in the actuator failing the low temperature torque test). Mesaba Airlines notes that once the modified flap actuator is certified, a fleet retrofit with the modified actuator would result in a more robust fix for the actuator issue. Mesaba Airlines further states that there is no guarantee currently that an actuator installed to replace an actuator that fails the low temperature torque test would not have the same issue shortly after installation (negating the benefit of performing the test). Mesaba Airlines concludes that the flight operations requirements instituted under AD 2007-17-07 provide an acceptable margin of safety until the modified actuator becomes available for retrofit. We disagree with the request to remove the requirement specified in paragraph (g)(3) of this AD. Bombardier and TCCA are discussing possible terminating action for Part C (low temperature torque test) of Bombardier Service Bulletin 601R-27-150. Although it has been proposed that the replacement of the current actuators with actuators incorporating the new inboard seal should be terminating action for the actuator cold soak requirement specified in Part C of the service bulletin, this has not yet been agreed to. Additionally, the new seal is still undergoing endurance testing at Eaton and is not yet approved. Once this new seal is developed, approved, and available, we might consider additional rulemaking. The actions specified in paragraph (g)(3) of this AD are intended to mitigate the potential of flap failures utilizing the solutions that are currently available. We have not revised this AD in this regard. However, according to the provisions of paragraph (h)(1) of the AD, operators may request an alternative method of compliance if the request includes data that prove that the new action would provide an acceptable level of safety. In regard to Mesaba Airlines' statement that there is no guarantee that a replacement actuator installed to replace an actuator failing the low temperature torque test would not have the same issue shortly after installation, we acknowledge that there is no guarantee that a replacement unit will not fail. However, replacing a known contaminated unit with a new unit, as required by paragraph (g)(3) of this AD, adequately addresses the identified unsafe condition. The actions in paragraph (g)(3) mitigate the risk of a failure as time in service increases. As stated earlier, we have revised paragraph (g)(3) of this AD to clarify that the actions apply only to certain actuators with more than 2,000 flight hours since new or actuators that have accumulated more than 2,000 flight hours since the pinion shaft seals were replaced. Bombardier has determined that the effects of oil contamination typically do not manifest until the actuators have accumulated over 6,000 flight hours, depending on aircraft utilization. The 24-month compliance time specified in paragraph (g)(3) of this AD is necessary to ensure that actuators that are in the range of 6,000 flight hours are inspected. We have not revised this AD in this regard. Request To Allow Another Method of Compliance With Part C of the Service Bulletin Comair also requests that we allow the replacement of the inboard pinion shaft seals, P/Ns 853SC177-1/-2, as a method of compliance with Part C of the service bulletin. Comair notes that it has had and will have many actuators removed in accordance with Maintenance Requirement Manual, Certification Maintenance Requirements

(CMR)Task C27-50-111-10, Functional Check of the Inboard Flap Actuator Torque Limiter. Comair states that actuators removed to comply with this CMR task should not also be subject to Part C of the service bulletin because the CMR task is an example of an event when the pinion seals must be replaced. We agree with the commenter that replacement actuators with inboard pinion shaft seals, P/Ns 853SC177-1/-2, are not subject to the actions in Part C of the service bulletin. As specified in paragraph 1.D., “Compliance,” of the service bulletin, Part C only applies to certain actuators with more than 2,000 flight hours since new or since repair where it can be shown that the inboard pinion shaft seals P/Ns 853SC177-1/-2 were replaced. As stated previously, we have revised paragraph (g)(3) of this AD to clarify the actuators subject to the actions in that paragraph. If a repair was done and the inboard pinion shaft seals were replaced, the actuator would not be subject to Part C of the service bulletin unless the part had over 2,000 flight hours since the seal replacement. Request To Allow Previous Alternative Methods of Compliance (AMOCs) Comair also requests that we add to the AMOC paragraph of this AD a statement that AMOCs approved previously according to AD 2007-17-07 are approved as AMOCs for the corresponding provisions of this AD. We agree that AMOCs approved previously in accordance with AD 2007-17-07 are acceptable for compliance with the corresponding provisions of this AD. We have revised paragraph (h)(1) of this AD accordingly. Request To Remove Requirements Larry Nelson, a private citizen, states that the training requirements in AD 2007-17-07 and paragraphs (f)(3) and (g)(1) of the NPRM do not meet the requirements of sections 39.3 and 39.5 of the Federal Aviation Regulations (14 CFR 39.3 and 14 CFR 39.5). The commenter notes that section 14 CFR 39.3 states that rules “* * * apply to the following products: Aircraft, aircraft engines, propellers, and appliances.” The commenter concludes that the training specified in the NPRM has nothing to do with the aircraft. The commenter adds that paragraphs

(a)and

(b)of section 14 CFR 39.5 state, “An unsafe condition exists in the product;” and “the condition is likely to exist or develop in other products of the same type design.” The commenter states that the perceived unsafe condition, although part of the aircraft, actually applies to the specific parts mentioned in paragraphs (f)(1), (g)(2), and (g)(3) of the NPRM (flap flex shafts and flap actuators). We infer that the commenter requests we remove the requirements for training and for doing any actions related to parts (and not the airplane itself) from the NPRM. We disagree. Section 14 CFR 39.11 describes the types of actions that ADs can require, including “conditions and limitations you must comply with.” In section 14 CFR 39.11, we intended to retain broad authority to require whatever types of corrective actions are determined to be most effective in addressing identified unsafe conditions. In this AD, we have found that one of the factors contributing to the identified unsafe condition is lack of training in operating an airplane when flap failure occurs in-flight (such as in freezing conditions). Due to the unsafe condition, we determined that these training requirements, in conjunction with the other requirements of this AD, are necessary to safely operate the airplane; and you must comply with them if you are an operator. As for the commenter's statement that the unsafe condition only applies to the part and not the airplane itself, we do not agree. We routinely issue ADs against the product that has a part installed that we have found to be unsafe. The AD applies to the product, and not the parts themselves, because parts that are not installed on operated products do not create an unsafe condition. As stated above, we determined that inadequate training and operating limitations also contributed to the unsafe condition of this AD. We have not revised the AD in this regard. Request for Clarification of Compliance Larry Nelson also requests clarification on how to provide compliance documentation for the operations/dispatch and flight crewmembers' training specified in paragraph (f)(3) of this AD. The commenter states that section 39.11 of the Federal Aviation Regulations (14 CFR 39.11) specifies, “Airworthiness directives specify inspections you must carry out, conditions and limitations you must comply with, and any actions you must take to resolve an unsafe condition.” The commenter states that this requirement would be met until one or more parts are changed. The commenter notes that since this NPRM is written against the airplane and does not include the specific parts addressed in the AD, NPRM, and service bulletin, it would therefore be difficult to manage. We find that clarification is necessary. As stated in paragraph (f)(3) of this AD, the training on the information in paragraph (f)(2) of this AD must be approved by the Principal Operations Inspector (POI). The method for documenting compliance should be included in the training approved by the POI. However, the method in which operators implement training in their operations and the method in which operators document compliance may vary greatly. Therefore, we have not included that information in this AD. We have not revised this AD in this regard. Conclusion We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of the AD. 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 required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance We estimate that this AD will affect 684 products of U.S. registry. We also estimate that it will take about 27 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $1,477,440, or $2,160 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 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 this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. 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 the NPRM, 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. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-15165 (72 FR 46555, August 21, 2007) and adding the following new AD: **2008-01-04 Bombardier, Inc. (Formerly Canadair):** Amendment 39-15329. Docket No. FAA-2007-0047; Directorate Identifier 2007-NM-197-AD. Effective Date

(a)This airworthiness directive

(AD)becomes effective February 15, 2008. Affected ADs

(b)This AD supersedes AD 2007-17-07, Amendment 39-15165. Applicability

(c)This AD applies to Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, certificated in any category, serial numbers 7003 through 7990 and 8000 and subsequent. Subject

(d)Air Transport Association

(ATA)of America Code 27: Flight Controls. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: The Bombardier CL-600-2B19 airplanes have had a history of flap failures at various positions for several years. Flap failure may result in a significant increase in required landing distances and higher fuel consumption than planned during a diversion. * * * This AD retains the requirements of AD 2007-17-07, i.e., revising the airplane flight manual

(AFM)to incorporate a temporary revision into the AFM; adding operational procedures into the AFM; training flight crewmembers and operational control/dispatch personnel on the operational procedures; and doing corrective “maintenance actions.” The corrective “maintenance actions” include the cleaning and lubrication of the flexible shafts, and applicable related investigative and corrective actions (which include a detailed inspection of the actuator connector sealant bead for signs of damage or delamination, repair of damaged sealant, and if necessary, a low temperature torque check on the actuator and if torque test results are not satisfactory, an installation of a serviceable actuator or, if no serviceable actuators are available, contacting the FAA for corrective action), and installing metallic seals in the flexible drive-shafts, and applicable related investigative and corrective actions (which include a detailed inspection of the mating surfaces on the flexible drive-shaft for damage (scratches or dents), and if mating surfaces have damage, cleaning the sealing washer and mating surfaces and applying sealant). This AD also requires training flight crewmembers on reduced or zero flap landing and doing additional corrective “maintenance actions” that include a pressure test of the flexible drive-shaft and corrective actions (which include replacing any flexible drive-shaft that exhibits leakage (any sign of bubbles within one minute during the pressure test in water) with a serviceable flexible drive-shaft), and a low temperature torque test of the flap actuators and corrective actions (which include installation of a serviceable actuator if torque test results are not satisfactory). Restatement of Requirements of AD 2007-17-07

(f)Unless already done, do the following actions.

(1)Part I. Airplane Flight Manual

(AFM)Change: Within 30 days after September 5, 2007 (the effective date of AD 2007-17-07), revise the Canadair Regional Jet Airplane Flight Manual CSP A-012, by incorporating the information in Canadair Regional Jet Temporary Revision

(TR)RJ/165, dated July 6, 2007, into the AFM. Note 1: The actions required by paragraph (f)(1) of this AD may be done by inserting a copy of Canadair Regional Jet TR RJ/165, dated July 6, 2007, into the Canadair Regional Jet Airplane Flight Manual CSP A-012. When this TR has been included in general revisions of the AFM, the general revisions may be inserted in the AFM.

(2)Part II. Operational Procedures: Within 30 days after September 5, 2007, revise the Limitations Section of the Canadair Regional Jet Airplane Flight Manual CSP A-012, to include the following statement. This may be done by inserting a copy of paragraph (f)(2) of this AD in the AFM. “1. Flap Extended Diversion Upon arrival at the destination airport, an approach shall not be commenced, nor shall the flaps be extended beyond the 0 degree position, unless one of the following conditions exists: a. When conducting a precision approach, the reported visibility (or RVR) is confirmed to be at or above the visibility associated with the landing minima for the approach in use, and can be reasonably expected to remain at or above this visibility until after landing; or b. When conducting a non-precision approach, the reported ceiling and visibility (or RVR) are confirmed to be at or above the ceiling and visibility associated with the landing minima for the approach in use, and can be reasonably expected to remain at or above this ceiling and visibility until after landing; or c. An emergency or abnormal situation occurs that requires landing at the nearest suitable airport; or d. The fuel remaining is sufficient to conduct the approach, execute a missed approach, divert to a suitable airport with the flaps extended to the landing position, conduct an approach at the airport and land with 1000 lb (454 kg) of fuel remaining. Note 1: The fuel burn factor (as per AFM TR/165) shall be applied to the normal fuel consumption for calculation of the flaps extended missed approach, climb, diversion and approach fuel consumption. Note 2: Terrain and weather must allow a minimum flight altitude not exceeding 15,000 feet along the diversion route. Note 3: For the purpose of this AD, a “suitable airport” is an airport that has at least one usable runway, served by an instrument approach if operating under Instrument Flight Rules (IFR), and the airport is equipped as per the applicable regulations and standards for marking and lighting. The existing and forecast weather for this airport shall be at or above landing minima for the approach in use. 2. Flap Failure After Takeoff When a takeoff alternate is filed, terrain and weather must allow a minimum flight altitude not exceeding 15,000 feet along the diversion route to that alternate, or other suitable airport. The fuel at departure shall be sufficient to divert to the takeoff alternate or other suitable airport with the flaps extended to the takeoff position, conduct and approach and land with 1000 lb (454 kg) of fuel remaining. Note: The fuel burn factor (as per AFM TR/165) shall be applied to the normal fuel consumption for calculation of the flaps extended, climb, diversion and approach fuel consumption. 3. Flap Zero Landing Operations where all useable runways at the destination and alternate airports are forecast to be wet or contaminated (as defined in the AFM) are prohibited during the cold weather season (December to March inclusive in the northern hemisphere) unless one of the following conditions exists: a. The flap actuators have been verified serviceable in accordance with Part C (Low Temperature Torque Test of the Flap Actuators) of SB 601R-27-150, July 12, 2007, or b. The flight is conducted at a cruise altitude where the SAT is −60 °C or warmer. If the SAT in flight is colder than −60 °C, descent to warmer air shall be initiated within 10 minutes, or c. The Landing Distance Available on a useable runway at the destination airport is at least equal to the actual landing distance required for flaps zero. This distance shall be based on Bombardier performance data, and shall take into account forecast weather and anticipated runway conditions, or d. The Landing Distance Available on a useable runway at the filed alternate airport, or other suitable airport is at least equal to the actual landing distance for flaps zero. This distance shall be based on Bombardier performance data, and shall take into account forecast weather and anticipated runway conditions. Note 1: If the forecast destination weather is less than 200 feet above DH or MDA, or less than 1 mile (1500 meters) above the authorized landing visibility (or equivalent RVR), as applied to the usable runway at the destination airport, condition 3.a., 3.b., or 3.d. above must be satisfied. Note 2: When conducting No Alternate IFR (NAIFR) operations, condition 3.a., 3.b., or 3.c. above must be satisfied.”

(3)Part III. Training: As of 30 days after September 5, 2007, no affected airplane may be operated unless the flight crewmembers of that airplane and the operational control/dispatch personnel for that airplane have received training that is acceptable to the Principal Operations Inspector

(POI)on the operational procedures required by paragraph (f)(2) of this AD.

(4)Part IV. Maintenance Actions: Within 120 days after September 5, 2007, do the cleaning and lubrication of the flexible shafts, installation of metallic seals in the flexible drive-shafts, and all applicable related investigative and corrective actions by doing all the applicable actions specified in “PART A” of the Accomplishment Instructions of Bombardier Service Bulletin 601R-27-150, dated July 12, 2007; except if torque test results are not satisfactory, before further flight, install a serviceable actuator in accordance with the service bulletin or, if no serviceable actuators are available, contact the Manager, New York Aircraft Certification Office, FAA, for corrective action. Do all applicable related investigative and corrective actions before further flight. New Requirements of This AD: Actions and Compliance

(g)Unless already done, do the following actions.

(1)As of November 30, 2008, no affected airplane may be operated unless the flight crewmembers of that airplane have received simulator training on reduced or zero flap landing that is acceptable to the POI. Thereafter, this training must be done during the normal simulator training cycle, at intervals not to exceed 12 months.

(2)Within 24 months or 4,000 flight hours after the effective date of this AD, whichever occurs first: Do a pressure test of the flexible drive-shaft, and do all applicable corrective actions, by doing all the applicable actions specified in “PART B” of the Accomplishment Instructions of Bombardier Service Bulletin 601R-27-150, dated July 12, 2007. Do all applicable corrective actions before further flight.

(3)For airplanes having flap actuators, part numbers (P/Ns) 852D100-19/-21, 853D100-19/-20, and 854D100-19/-20, specified in paragraphs (g)(3)(i) and (g)(3)(ii) of this AD: Within 24 months after the effective date of this AD, do a low temperature torque test of the flap actuators, and do all applicable corrective actions, by doing all the applicable actions specified in “PART C” of the Accomplishment Instructions of Bombardier Service Bulletin 601R-27-150, dated July 12, 2007. Do all applicable corrective actions before further flight.

(i)Airplanes having actuators that have not been repaired and that have accumulated more than 2,000 flight hours since new.

(ii)Airplanes having actuators that have been repaired and that have accumulated more than 2,000 flight hours on the inboard pinion shaft seals, P/Ns 853SC177-1/-2. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows:

(1)The maintenance tasks specified in the first row of the table in “Part IV. Maintenance Actions” of the MCAI do not specify a corrective action if an actuator is not serviceable ( *i.e.* , torque test results are not satisfactory). However, this AD requires contacting the FAA or installing a serviceable actuator before further flight if torque test results are not satisfactory. (Reference paragraph (f)(4) of this AD.)

(2)Although paragraph 2. of “Part III. Training” of the MCAI recommends accomplishing the initial training within 1 year, this AD requires accomplishing the training before November 30, 2008, in order to ensure that the actions are completed prior to the onset of cold weather operations.

(3)The MCAI does not specify which actuators are applicable to the actions specified in “Part C” of Bombardier Service Bulletin 601R-27-150, dated July 12, 2007. This AD requires that “Part C” of the service bulletin only be done for the actuators specified in paragraph (g)(3) of this AD. Other FAA AD Provisions

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

(1)Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Dan Parrillo, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone

(516)228-7305; fax

(516)794-5531. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. AMOCs approved previously in accordance with AD 2007-17-07 are approved as AMOCs for the corresponding provisions of this AD.

(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 Canadian Airworthiness Directive CF-2007-10, dated July 18, 2007; Bombardier Service Bulletin 601R-27-150, dated July 12, 2007; and Canadair Regional Jet Temporary Revision RJ/165, dated July 6, 2007, to the Canadair Regional Jet Airplane Flight Manual CSP A-012; for related information. Material Incorporated by Reference

(j)You must use Bombardier Service Bulletin 601R-27-150, including Appendix A, dated July 12, 2007; and Canadair Regional Jet Temporary Revision RJ/165, dated July 6, 2007, to the Canadair Regional Jet Airplane Flight Manual CSP A-012; as applicable, to do the actions required by this AD, unless the AD specifies otherwise.

(1)The Director of the Federal Register previously approved the incorporation by reference of Bombardier Service Bulletin 601R-27-150, including Appendix A, dated July 12, 2007; and Canadair Regional Jet Temporary Revision RJ/165, dated July 6, 2007, to the Canadair Regional Jet Airplane Flight Manual CSP A-012 on September 5, 2007 (72 FR 46555, August 21, 2007).

(2)For service information identified in this AD, contact Bombardier, Inc., Canadair, Aerospace Group, P.O. Box 6087, Station Centre-ville, Montreal, Quebec H3C 3G9, Canada.

(3)You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call

(202)741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Issued in Renton, Washington, on January 3, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-249 Filed 1-10-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0374; Directorate Identifier 2007-SW-02-AD; Amendment 39-15313; AD 2007-26-11] RIN 2120-AA64 Airworthiness Directives; Intertechnique Zodiac Aircraft Systems, Oxygen Reserve Cylinders AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule; request for comments. SUMMARY: We are adopting a new airworthiness directive

(AD)for certain oxygen reserve cylinders. This AD results from mandatory continuing airworthiness information

(MCAI)originated by an aviation authority of another country with which we have a bilateral agreement to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: This Airworthiness Directive

(800)647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Uday Garadi, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Regulations and Guidance Group, Fort Worth, Texas 76193-0110, telephone

(817)222-5123, fax

(817)222-5961. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Discussion The European Aviation Safety Agency (EASA), which is the technical agent for the member states of the European community, has issued EASA AD No. 2006-0286R1, dated March 22, 2007, to correct an unsafe condition for the specified products. The MCAI states: This Airworthiness Directive

(AD)is issued following information concerning the risk of high-pressure oxygen cylinder tearing with sudden emptying. These cylinders are used for missions at high altitudes or to ensure respiratory air for passengers feeling sick. It has been demonstrated that the material characteristics of the Aluminum Alloy 5283 (AA5283) from which the cylinders are manufactured deteriorate in the course of time and may possibly lead these oxygen cylinders to tear and abruptly vent aboard an aircraft. You may obtain further information by examining the MCAI and the service information in the AD docket. Relevant Service Information Intertechnique has issued Service Bulletin No. GLD/GLF-35-150, dated September 20, 2006 and Eurocopter has issued Alert Service Bulletin Nos. 05.00.54 for the Model AS350B3 helicopters and 05.42 for the Model SA 315B helicopters, both dated August 16, 2006. The actions described in the MCAI are intended to correct the same unsafe condition identified in the service information. FAA's Determination and Requirements of This AD The Model Airbus 300 series; Pilatus P-6; Dassault Aviation Mystere-Falcon 20; Falcon 50, Falcon 200, and Falcon 900 airplanes; Eurocopter AS350 and Eurocopter SA315 helicopters; and other aircraft may be equipped with these oxygen reserve cylinders, which are not approved by the Department of Transportation (DOT). Without the DOT approval, these oxygen reserve cylinders are not eligible for use in aircraft operating in the United States. Pursuant to our bilateral agreement with France, the State of Design, we have been notified of the unsafe condition described in the MCAI and service information. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on aircraft of various type designs. Differences Between the AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. However, we have made the following changes: • The MCAI requires removal of the affected oxygen cylinders at specific time intervals; however, this AD requires removal before further flight. • The MCAI requires certain procedures to be used for emptying the cylinders as well as certain action for cylinders held as spares. These actions are beyond the scope of the action needed to correct this unsafe condition and are not included in this AD. These differences are highlighted in the “Differences Between the FAA AD and the MCAI” section of this AD. FAA's Determination of the Effective Date An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because of the risk of oxygen cylinders exploding on board an aircraft and creating a fire hazard. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days. Comments Invited This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0374; Directorate Identifier 2007-SW-02-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments. We will post all comments we receive, without change, to *http://regulations.gov* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD. Costs of Compliance We estimate that this AD will affect about 468 aircraft of U.S. registry. We also estimate that it will take about 1/2 of a work-hour per aircraft to remove the cylinders. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $4000, assuming that oxygen cylinders are installed on 100 aircraft. 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 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 this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **2007-26-11 Intertechnique Zodiac Aircraft Systems:** Amendment 39-15313. Docket No. FAA-2007-0374; Directorate Identifier 2007-SW-02-AD. Effective Date

(a)This airworthiness directive

(AD)becomes effective January 28, 2008. Other Affected ADs

(b)None. Applicability

(c)This AD applies to Intertechnique (F5341), aluminum alloy AA5283, oxygen cylinders manufactured by Societe Metallurgique de Gerzat SAS with GLD series, GLF series, PC2300 or SLF300 part numbers, installed in any aircraft certificated in any category. These oxygen reserve cylinders are installed on but not limited to Model Airbus 300 series; Pilatus P-6; Dassault Aviation Mystere-Falcon 20, Falcon 50, Falcon 200, and Falcon 900 airplanes; and Eurocopter AS350 and Eurocopter SA315 helicopters. Reason

(d)The mandatory continued airworthiness information

(MCAI)states: This Airworthiness Directive

(e)Unless already done, remove any affected oxygen reserve cylinder before further flight. Differences Between the FAA AD and the MCAI

(f)This AD differs from the MCAI as follows:

(1)The MCAI requires removal of the affected oxygen cylinders at specific time intervals; however, this AD requires removal before further flight.

(2)The MCAI requires certain procedures to be used for emptying the cylinders as well as certain action for cylinders held as spares. These actions are beyond the scope of the action needed to correct this unsafe condition and are not included in this AD. Subject

(g)Air Transport Association of America

(ATA)Code 3530: Portable Oxygen System. Other Information

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

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Safety Management Group, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to *ATTN:* Uday Garadi, Aviation Safety Engineer, Regulations and Guidance Group, Fort Worth, Texas 76193-0110, telephone

(817)222-5123, fax

(817)222-5961.

(2)*Airworthy Product:* Use only FAA-approved corrective actions. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent) if the State of Design has an appropriate bilateral agreement with the United States. 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)Mandatory Continuing Airworthiness Information

(MCAI)EASA Airworthiness Directive No. 2006-0286R1, dated March 22, 2007; Intertechnique Service Bulletin No. GLD/GLF-35-150, dated September 20, 2006; and Eurocopter Alert Service Bulletin Nos. 05.00.54 for the Model AS350B3 and 05.42 for the Model SA315B, both dated August 16, 2006, contain related information. Issued in Fort Worth, Texas, on December 3, 2007. David A. Downey, Manager, Rotorcraft Directorate, Aircraft Certification Service. [FR Doc. E7-25391 Filed 1-10-08; 8:45 am] BILLING CODE 4910-13-P SOCIAL SECURITY ADMINISTRATION 20 CFR Parts 404 and 416 [Docket No. SSA-2006-0096] RIN 0960-AG40 Methods for Conducting Personal Conferences When Waiver of Recovery of a Title II or Title XVI Overpayment Cannot Be Approved AGENCY: Social Security Administration (SSA). ACTION: Final rules. SUMMARY: We are revising our title II regulations and adding title XVI regulations on personal conferences when waiver of recovery of an overpayment cannot be approved. These final rules allow for the conferences to be conducted face-to-face, by telephone, or by video teleconference in these circumstances. DATES: These final rules are effective February 11, 2008. FOR FURTHER INFORMATION CONTACT: Robin Strauss, Social Insurance Specialist, Social Security Administration, Office of Income Security Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401,

(410)965-7944, for information about this **Federal Register** document. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at *http://www.socialsecurity.gov* . SUPPLEMENTARY INFORMATION: Electronic Version The electronic file of this document is available on the date of publication in the **Federal Register** at *http://www.gpoaccess.gov/fr/index.html* . Background Our existing regulations at § 404.506 state that we will waive recovery of a title II overpayment if the individual was without fault in causing the overpayment and if recovery would defeat the purpose of title II of the Social Security Act or be against equity and good conscience. Section 404.506 further states that, if we cannot approve waiver after reviewing the information the individual has given to support his or her contention that the recovery of the overpayment should be waived, we will offer the individual a personal conference. The personal conference policy was established so that the decisionmaker would have the opportunity to assess an individual's contention through personal, versus written, contact. Our existing regulations at § 416.550 state that we will waive recovery of a title XVI overpayment if the individual was without fault in causing the overpayment and if recovery would either defeat the purpose of title XVI, or be against equity and good conscience, or impede the efficient administration of title XVI. There is currently no title XVI regulation regarding personal conferences. Section 404.506(e)(1) states that the individual is given the opportunity to “appear personally” at the personal conference. Current regulations do not further specify the method in which this appearance may be made. Our longstanding policy contained in Social Security Ruling

(SSR)94-4p, which implemented the decisions in *Buffington, et al.* v. *Schweiker* and *Califano* v. *Yamasaki* , provides that a face-to-face pre-recoupment hearing will be conducted prior to the denial of waiver of recovery of an overpayment. However, a face-to-face appearance at the field office is not always convenient for the beneficiary. Often, if an individual is not able to come to the face-to-face conference, field office personnel will go to the person to hold the conference. Offering additional appearance options for the conference would improve service to the beneficiaries and reduce costly home visits by field personnel. In order to fulfill our stewardship responsibilities to the Social Security trust fund, we must employ methods that will simplify our personal conference procedures and use our resources most efficiently. We should be using all available technology when we conduct personal conferences. Therefore, we are revising the regulations to allow for personal conferences to be conducted face-to-face at a place we designate (usually in the field office), by telephone, or by video teleconference. We will give the choice to the individual; the individual will still be provided the opportunity to appear face-to-face by choosing to come to us for the personal conference, or may choose to participate by telephone or video teleconference. If the individual elects to conduct the personal conference by video teleconference, the individual will designate the location for his or her end of the video teleconference. Any individual who is interested in conducting the personal conference by video teleconference can contact us for additional information and assistance with this process. Because we are offering claimants two new and convenient ways to participate in a personal conference—in addition to the face-to-face conferences at our field offices we currently offer—we believe the need for our personnel to make costly home visits will significantly decrease. Therefore, we will consider conducting face-to-face conferences at locations other than SSA field offices only on a case-by-case basis, and only in those limited circumstances where:

(a)a claimant has exhausted all other means of obtaining a personal conference, and

(b)conducting a personal conference by any other means would be so inadequate, owing to a claimant's physical or mental condition, as to infringe upon the person's right to a hearing. This process is in no way meant to circumscribe an individual's right to reasonable accommodation or to relieve SSA of our responsibility to provide such accommodation in accordance with 29 U.S.C. 794. These final rules will not affect the individual's right to review the claims file, have a representative present for the proceedings, cross-examine witnesses, or submit documentary evidence. Those provisions will not change. For example, claimants who choose to conduct the personal conference via telephone or video teleconference will be given an opportunity to submit documentary evidence by mail or fax prior to the scheduled conference. If necessary, the conference could be rescheduled to allow claimants time to do this. In conducting the personal conference face-to-face at a place we designate, by telephone, or by video teleconference, we will be fulfilling our stewardship responsibilities while offering an additional convenience to the individual and continuing to protect the individual's right to present his or her contention that he or she meets the requirements for waiver of recovery of an overpayment. The decisionmaker will still be able to properly assess the person's contentions regarding fault under these new procedures. We already successfully conduct some hearings by telephone and by video teleconference. For example, the administrative review of an initial determination for Medicare Part D subsidies is conducted either by a telephone hearing or a case review. See § 418.3625. Additionally, some administrative hearings to review claims under title II (including administrative law judge review of denial of waiver based on a personal conference), and other claims under title XVI are now conducted via video teleconferencing. See §§ 404.936 and 416.1436. Our experience in these contexts has demonstrated that these procedures adequately protect a claimant's due process rights. Explanation of Changes We are changing the regulations in 20 CFR parts 404 and 416 to reflect the methods for conducting personal conferences when waiver of recovery of an overpayment cannot be approved as follows: • We are changing the regulations at § 404.506 to reflect the various methods we can use to conduct the personal conference. These methods are: face-to-face in a location we designate (usually in the field office), via telephone, or via video teleconference. • Currently, part 416 has no reference to personal conferences when waiver of recovery of the overpayment cannot be approved. We are adding a new section that is similar to the regulations at § 404.506. New § 416.557 includes the various methods we can use to conduct the personal conference and describes the individual's rights and responsibilities regarding the personal conference. Since SSR 94-4p only provides for a pre-recoupment hearing that is conducted face-to-face before waiver of recovery of an overpayment can be denied, the changes in §§ 404.506 and 416.557 expand that policy. Therefore, we are also publishing a notice rescinding SSR 94-4p concurrently with the effective date of these final rules on the same day we publish these final rules. Public Comments On March 5, 2007, we published proposed rules in the **Federal Register** at 72 FR 9709 and provided a 60-day comment period. We received comments from two organizations and one individual. The comments from the individual were totally supportive of the proposed rules, noting that the rule will provide beneficiaries with practical options for presenting further evidence in favor of waiver of recovery, even when they cannot appear at the SSA office for a face-to-face conference. We carefully considered all of the comments in publishing these final rules. Because some of the comments were long and quite detailed, we have condensed, summarized and paraphrased them in the following discussion. However, we have tried to present all views adequately and to address carefully all of the significant issues raised by the commenters that are within the scope of the proposed rules. We have not addressed in this preamble comments that are outside the scope of the rulemaking proceeding. *Comment:* Both organizations which commented raised the concern that the regulations were not consistent with SSA's obligation under Section 504 of the Rehabilitation Act to provide reasonable accommodation for disabled individuals. In support of this proposition, both commenters cited the example in the preamble. This example said that SSA would consider conducting a face-to-face personal conference at a location other than an SSA field office where the claimant was deaf and bedridden. The commenters were concerned that this implies that SSA will only provide accommodation and accessibility measures to the most severely limited program participants and not to all persons with disabilities. *Response:* The example in the preamble was not intended to represent the only type of situation in which SSA would consider conducting a face-to-face personal conference at a location other than an SSA field office. These requests will be decided on a case-by-case basis and will be consistent with our obligations under section 504 of the Rehabilitation Act to provide reasonable accommodation to disabled people. To avoid any confusion, we did not include the example in the preamble to these final rules. *Comment:* One organization commented that they felt that our criteria for considering conducting face-to-face conferences at locations other than SSA field offices (described in paragraph three of the “Background” section of the preamble), “seems to circumscribe individual rights under section 504.” They recommend that SSA either withdraw this statement or redraft it to be more consistent with section 504. *Response:* We do not feel that the description of when a face-to-face personal conference will be conducted at a location other than an SSA field office circumscribes the claimant's rights in any way. In addition to conducting personal conferences face-to-face in the field office, the new rule offers beneficiaries two additional options for conducting personal conferences (by telephone and by video teleconferencing) and retains an option for face-to-face conferences at locations other than the field office on a case-by-case basis. We believe that this procedure is consistent with our obligation to provide reasonable accommodation under the Rehabilitation Act. However, to make our intent clear, we have added a sentence at the end of the paragraph explaining that the intent of this regulation is neither to circumscribe the individual's right to request reasonable accommodation nor to relieve SSA of its obligation to provide it in accordance with the law. *Comment:* One organization suggested that the regulation be more specific about the different ways in which a personal conference can be conducted, such as by text telephone. Both organizations which commented recommended that specific language be included in the regulation about SSA's responsibility to provide reasonable accommodation. *Response:* Our offices regularly conduct business via text telephone, relay services, and various other methods. These methods are all implied when we describe conducting a personal conference by telephone. As to the suggestion for including specific language in the regulation about SSA's responsibility to provide reasonable accommodation, we do not believe that this is necessary. Section 504 of the Rehabilitation Act already sets forth SSA's obligation to provide reasonable accommodation to disabled individuals. Our statement in paragraph three of the Background section of the preamble evidences our understanding of that obligation in the personal conference context. *Comment:* One of the organizations was concerned that local SSA offices may attempt to coerce claimants into choosing an option for conducting the personal conference that is most convenient for their office. They suggest that SSA require the distribution of information about a disabled individual's right to request reasonable accommodation in the personal conference process, and to ensure that employees in the field offices understand the importance of providing disabled individuals with this information. *Response:* The field office personnel deal with disabled claimants daily, and understand SSA's obligation to provide reasonable accommodation when requested. Also, as described in the regulation, it is the claimant who chooses the method for conducting the personal conference. We expect that they would select the option that best accommodates any limitations they may have. *Comment:* One commenter suggested that adjustment to recover the overpayment after waiver of recovery is denied should be delayed, if the claimant appeals the decision, until after the appeals process has ended. They state that this is a more equitable way of collecting the overpayments, particularly for disabled individuals with low incomes. *Response:* Beginning adjustment or recovery of an overpayment following denial of waiver of recovery does not constitute any change in existing policy. See § 404.506(g). As stated under the “Explanation of Changes” section of this preamble, part 416 did not have a reference to personal conferences when waiver of recovery of the overpayment cannot be approved. We simply added a new section that is similar to the regulations at § 404.506 to the title XVI regulations that codifies the policies on personal conferences that have long been in place. Courts have found that this process comports with due process and with the statute. With regard to the commenter's concerns about recoupment from low-income title XVI beneficiaries, our regulations provide a 10 percent limitation of recoupment rate for title XVI overpayments in most cases. Additionally, individuals are given the opportunity to request that the adjustment or recovery be made at a lower rate than the one proposed. If an individual requests a lower rate, a rate of withholding that is appropriate to the financial condition of the overpaid individual will be set after evaluation of all the pertinent facts. See § 416.571. *Comment:* One organization was concerned that these changes will make it more difficult for the claimant to receive and provide pertinent information, and for SSA personnel to make credibility determinations. They are also concerned that many claimants, particularly those who can least afford to repay an overpayment, will not have access to technology such as video teleconferencing equipment. *Response:* As cited in the “Background” section of this preamble, SSA is already successfully conducting some hearings by telephone and by video teleconference, including administrative law judge review of denial of waiver based on a personal conference. As for a claimant's access to certain technological equipment, the method of conducting the personal conference is their choice and, as stated above, holding a face-to-face conference at a location other than the SSA field office will be considered on a case-by-case basis, if requested. Moreover, any individual who is interested in conducting the personal conference by video teleconference can contact us for additional information and assistance with this process. Other Changes In addition to the changes already discussed above, we have made minor, non-substantive changes for clarification purposes only. Regulatory Procedures Executive Order 12866 We have consulted with the Office of Management and Budget

(OMB)and determined that these final rules meet the criteria for a significant regulatory action under Executive Order 12866, as amended. Thus, they were reviewed by OMB. We have also determined that these final rules meet the plain language requirement of Executive Order 12866, as amended. Regulatory Flexibility Act We certify that these final rules would not have a significant economic impact on a substantial number of small entities because they affect only individuals. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required. Paperwork Reduction Act These final rules contain information collection burdens in §§ 416.557(c)(3) and 416.557(d)(8) that require OMB clearance under the Paperwork Reduction Act of 1995 (PRA). As required by the PRA, we have submitted a clearance request to OMB for approval of these sections. (As requested by OMB, we also included associated sections §§ 404.506(e)(3) and 404.506(f)(8), which deal with personal conferences but are not included in the text of the regulation). We will publish the OMB number and expiration date upon approval. As required by the PRA, we published a notice of proposed rulemaking on March 5, 2007 at 72 FR 9709, in which we solicited comments under the PRA on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility and clarity; and on ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology. No public comments were submitted relating to any of these issues. (Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security-Disability Insurance; 96.002, Social Security-Retirement Insurance; 96.004, Social Security-Survivors Insurance; and 96.006, Supplemental Security Income) List of Subjects 20 CFR Part 404 Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors and Disability Insurance; Reporting and recordkeeping requirements, Social Security. 20 CFR Part 416 Administrative practice and procedure, Aged, Blind, Disability benefits, Public assistance programs, Reporting and recordkeeping requirements, Supplemental Security Income. Dated: November 30, 2007. Michael J. Astrue, Commissioner of Social Security. For the reasons set out in the preamble, we are amending subpart F of part 404 and subpart E of part 416 of chapter III of title 20 of the Code of Federal Regulations as follows: PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950-) Subpart F—[Amended] 1. The authority citation for subpart F of part 404 continues to read as follows: Authority: Secs. 204, 205(a), 702(a)(5), and 1147 of the Social Security Act (42 U.S.C. 404, 405(a), 902(a)(5), and 1320b-17); 31 U.S.C. 3720A. 2. Section 404.506 is amended by adding a sentence at the end of paragraph

(c)to read as follows: § 404.506 When waiver may be applied and how to process the request.

(c)* * * We will offer to the individual the option of conducting the personal conference face-to-face at a place we designate, by telephone, or by video teleconference. The notice will advise the individual of the date and time of the personal conference. PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED Subpart E—[Amended] 1. The authority citation for subpart E of part 416 continues to read as follows: Authority: Secs. 702(a)(5), 1147, 1601, 1602, 1611(c) and (e), and 1631(a)-(d) and

(g)of the Social Security Act (42 U.S.C. 902(a)(5), 1320b-17, 1381, 1381a, 1382(c) and (e), and 1383(a)-(d) and (g)); 31 U.S.C. 3720A. 2. Section 416.557 is added to read as follows: § 416.557 Personal conference.

(a)If waiver cannot be approved (i.e., the requirements in § 416.550

(a)and

(b)are not met), the individual is notified in writing and given the dates, times and place of the file review and personal conference; the procedure for reviewing the claims file prior to the personal conference; the procedure for seeking a change in the scheduled date, time and/or place; and all other information necessary to fully inform the individual about the personal conference. The file review is always scheduled at least 5 days before the personal conference. We will offer to the individual the option of conducting the personal conference face-to-face at a place we designate, by telephone, or by video teleconference. The notice will advise the individual of the date and time of the personal conference.

(b)At the file review, the individual and the individual's representative have the right to review the claims file and applicable law and regulations with the decisionmaker or another of our representatives who is prepared to answer questions. We will provide copies of material related to the overpayment and/or waiver from the claims file or pertinent sections of the law or regulations that are requested by the individual or the individual's representative.

(c)At the personal conference, the individual is given the opportunity to:

(1)Appear personally, testify, cross-examine any witnesses, and make arguments;

(2)Be represented by an attorney or other representative (see § 416.1500), although the individual must be present at the conference; and

(3)Submit documents for consideration by the decisionmaker.

(d)At the personal conference, the decisionmaker:

(1)Tells the individual that the decisionmaker was not previously involved in the issue under review, that the waiver decision is solely the decisionmaker's, and that the waiver decision is based only on the evidence or information presented or reviewed at the conference;

(2)Ascertains the role and identity of everyone present;

(3)Indicates whether or not the individual reviewed the claims file;

(4)Explains the provisions of law and regulations applicable to the issue;

(5)Briefly summarizes the evidence already in file which will be considered;

(6)Ascertains from the individual whether the information presented is correct and whether he/she fully understands it;

(7)Allows the individual and the individual's representative, if any, to present the individual's case;

(8)Secures updated financial information and verification, if necessary;

(9)Allows each witness to present information and allows the individual and the individual's representative to question each witness;

(10)Ascertains whether there is any further evidence to be presented;

(11)Reminds the individual of any evidence promised by the individual which has not been presented;

(12)Lets the individual and the individual's representative, if any, present any proposed summary or closing statement;

(13)Explains that a decision will be made and the individual will be notified in writing; and

(14)Explains repayment options and further appeal rights in the event the decision is adverse to the individual.

(e)SSA issues a written decision to the individual (and his or her representative, if any) specifying the findings of fact and conclusions in support of the decision to approve or deny waiver and advising of the individual's right to appeal the decision. If waiver is denied, adjustment or recovery of the overpayment begins even if the individual appeals.

(f)If it appears that the waiver cannot be approved, and the individual declines a personal conference or fails to appear for a second scheduled personal conference, a decision regarding the waiver will be made based on the written evidence of record. Reconsideration is the next step in the appeals process. [FR Doc. E8-314 Filed 1-10-08; 8:45 am] BILLING CODE 4191-02-P DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 291 [Docket No. FR-4712-C-04] RIN 2502-AH72 Good Neighbor Next Door Sales Program; Technical Correction AGENCY: Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD. ACTION: Technical correction. SUMMARY: This document makes a correction to HUD's November 1, 2006, final rule establishing regulations for the Good Neighbor Next Door

(GNND)Sales Program. It has come to HUD's attention that the regulatory text of the November 1, 2006, final rule contained a typographical error regarding properties available for sale under the GNND Sales Program. The purpose of this document is to make the necessary correction. DATES: *Effective Date:* January 11, 2008. FOR FURTHER INFORMATION CONTACT: Ivery W. Himes, Director, Asset Management and Disposition Division, Office of Single Family Asset Management, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 9172, Washington, DC 20410-8000; telephone

(202)708-1672 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number through TTY by calling the toll-free Federal Information Relay Service at

(800)877-8339. SUPPLEMENTARY INFORMATION: I. Background On November 1, 2006 (71 FR 64422), HUD published a final rule establishing regulations for the Good Neighbor Next Door

(GNND)Sales Program. The GNND Sales Program seeks to improve the quality of life in distressed urban communities by encouraging law enforcement officers, teachers, and firefighters/emergency medical technicians, whose daily responsibilities and duties reflect a high level of public service commitment and represent a nexus to the needs of the community, to purchase and live in homes in these communities. The November 1, 2006, final rule, codified the GNND Sales Program regulations at 24 CFR part 291, subpart F. II. Need for Correction It has come to HUD's attention that the regulatory text of the November 1, 2006, final rule contained a typographical error regarding properties available for sale under the GNND Sales Program. The preamble to the final rule correctly makes clear that occupied properties, properties located in Asset Control Areas, and properties that HUD determines will be sold through an alternative sales method will not be made available for purchase under the GNND Sales Program ( *see* 61 FR 64422, third column). However, due to typographical error regarding the closing of a parenthetical, § 291.510(b) of the regulatory text (entitled “Eligible properties”) incorrectly provides that: Under the GNND Sales Program, single-unit properties acquired by HUD located in HUD-designated revitalization areas (except occupied properties), those located in Asset Control Areas, or those that HUD has determined will be sold through an alternative sales method will be made available to interested law enforcement officers, teachers, and firefighters/emergency medical technicians prior to listing the properties for sale to other purchasers. Rather than ending after the phrase “occupied properties,” the parenthetical should close at the end of the list of excluded properties after the phrase “those that HUD has determined will be sold through an alternative sales method.” The purpose of this document is to make the necessary correction to § 291.510(b). List of Subjects in 24 CFR Part 291 Community facilities, Conflict of interests, Homeless, Lead poisoning, Low and moderate income housing, Mortgages, Reporting and recordkeeping requirements, Surplus government property. Accordingly, 24 CFR part 291 is corrected by making the following correcting amendment: PART 291—DISPOSITION OF HUD-ACQUIRED SINGLE FAMILY PROPERTY 1. The authority citation for 24 CFR part 291 continues to read as follows: Authority: 12 U.S.C. 1701 *et seq.* ; 42 U.S.C. 1441, 1441a, 1551a, and 3535(d). 2. Revise § 291.510(b) to read as follows: § 291.510 Overview of the GNND Sales Program.

(b)*Eligible properties.* Under the GNND Sales Program, single-unit properties acquired by HUD located in HUD-designated revitalization areas (except occupied properties, those located in Asset Control Areas, or those that HUD has determined will be sold through an alternative sales method) will be made available to interested law enforcement officers, teachers, and firefighters/emergency medical technicians prior to listing the properties for sale to other purchasers. Dated: January 3, 2008. Brian D. Montgomery, Assistant Secretary for Housing—Federal Housing Commissioner. [FR Doc. E8-355 Filed 1-10-08; 8:45 am] BILLING CODE 4210-67-P DEPARTMENT OF THE TREASURY 31 CFR Part 103 RIN 1506-AA88 Financial Crimes Enforcement Network; Amendment Regarding Financial Institutions Exempt from Establishing Anti-Money Laundering Programs AGENCY: Financial Crimes Enforcement Network, Department of the Treasury. ACTION: Final rule. SUMMARY: The Financial Crimes Enforcement Network (“FinCEN”) is amending the provision in its regulations that defers, for certain categories of financial institutions, the application of the anti-money laundering program requirements in section 352 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (“USA PATRIOT”) Act of 2001. Two of the categories of financial institutions specifically exempted from having to establish an anti-money laundering program subsequently have been required by regulation to establish such programs, and this rulemaking will amend the regulations to reflect those changes. DATES: *Effective Date:* January 11, 2008. FOR FURTHER INFORMATION CONTACT: Regulatory Policy and Programs Division (FinCEN),

(800)949-2732 (toll-free). SUPPLEMENTARY INFORMATION: I. Background A. USA PATRIOT Act Section 352 On October 26, 2001, the President signed into law the USA PATRIOT Act (Pub. L. 107-56). Title III of the USA PATRIOT Act makes a number of amendments to the anti-money laundering provisions of the Bank Secrecy Act (“BSA”), which is codified in subchapter II of chapter 53 of title 31, United States Code. These amendments are intended to make it easier to prevent, detect, and prosecute money laundering and the financing of terrorism. Section 352(a) of the USA PATRIOT Act, amended section 5318(h) of the BSA, effective April 24, 2002, to require every financial institution to establish an anti-money laundering program that includes, at a minimum:

(i)The development of internal policies, procedures, and controls;

(ii)the designation of a compliance officer;

(iii)an ongoing employee training program; and

(iv)an independent audit function to test programs. The definition of “financial institution” in sections 5312(a)(2) and (c)(1) of the BSA is broad. It includes categories of institutions that were already subject to some federal anti-money laundering regulations at the time the USA PATRIOT Act was passed, such as banks, savings associations, credit unions, and money services businesses (such as money transmitters and currency dealers or exchangers). The definition also includes: Registered securities broker-dealers; futures commission merchants; dealers in precious metals, stones, or jewels; pawnbrokers; loan or finance companies; trust companies; private bankers; insurance companies; travel agencies; telegraph companies; sellers of vehicles, including automobiles, airplanes, and boats; persons engaged in real estate closings and settlements; investment bankers; investment companies; and commodity pool operators and commodity trading advisors that are registered or require to register under the Commodity Exchange Act (7 U.S.C. 1 et seq.). Section 352 of the USA PATRIOT Act requires *all* of these businesses to establish anti-money laundering programs. Section 5318(h)(2) of the BSA, however, also grants the Secretary of the Treasury, and by extension his delegate FinCEN, the authority to exempt certain financial institutions from the requirement to institute anti-money laundering programs. In April 2002, FinCEN issued a series of interim final rules implementing section 352 of the USA PATRIOT Act. 1 At the same time, FinCEN also exempted certain financial institutions, including dealers in precious metals, stones, or jewels, and insurance companies, from having to comply with section 352 of the USA PATRIOT Act for a six month period. 2 In November 2002, FinCEN replaced this six month exemption from the application of the anti-money laundering program requirements in section 352 with an open-ended exemption (“Temporary Exemption Rule”). 3 1 These rules prescribed requirements for anti-money laundering programs for banks, savings associations, credit union, registered securities broker-dealers, futures commission merchants, and introducing brokers that are regulated by a federal functional regulator or a self-regulatory organization, and casinos. 67 FR 21110 (Apr. 29, 2002) (interim final rules). At the same time, FinCEN also issued interim final rules that required money services businesses (67 FR 21114 (Apr. 29, 2002)), mutual funds (67 FR 21117 (Apr. 29, 2002)), and operators of credit card systems (67 FR 21121 (Apr. 29, 2002)) to establish anti-money laundering programs. 2 *Id.* 3 31 CFR 103.170, 67 FR 67547 (Nov. 6, 2002), corrected at 67 FR 68953 (Nov. 14, 2002). B. Updating 31 CFR Section 103.170 In the years since the Temporary Exemption Rule was published, FinCEN has promulgated a number of rules that require two previously exempted categories of financial institutions (dealers in precious metals, stones, or jewels, 4 and insurance companies 5 ) to establish anti-money laundering programs. 6 Although FinCEN has, through the publication of the above-mentioned rules, *ipso jure* revoked the exemptions previously issued to those categories of financial institutions, 7 the Temporary Exemption Rule is being amended to reflect these revocations and eliminate possible confusion. 4 31 CFR 103.170(b)(i) 5 31 CFR 103.170(b)(ix). Only those insurance companies falling within the definition contained in 31 CFR 103.137(a)(9) are required to have an anti-money laundering program. The removal of the entire category of “insurance companies” from the exempted list should not be read to limit the breadth of the definition for purposes of the availability of the safe harbor under 31 U.S.C. 5318(g)(3) for voluntary reports of suspicious activities. See 70 FR 66755 (Nov. 3, 2005), fn 4. 6 FinCEN issued rules in 2005 requiring dealers in precious stones, metals, and jewels ((See 70 FR 33702 (June 9, 2005) (interim final rule)), and certain insurance companies (See 70 FR 66754 (Nov. 3, 2005) (final rule)) to establish anti-money laundering programs. 7 The removal of the temporary exemption occurs automatically pursuant to 31 CFR section 103.170(c), which states that “[t]he exemptions described in paragraphs (a)(2) and

(b)of [this rule] shall not apply to any financial institution that is otherwise required to establish an anti-money laundering program by this subpart I.” II. Administrative Procedure Act Under the Administrative Procedure Act (“APA”), notice of a proposed rulemaking is not required when the agency, for good cause, finds “that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 8 FinCEN is making technical amendments to the Temporary Exemption Rule to ensure that the list of temporarily exempted financial institutions is accurate and not confusing. FinCEN, therefore, finds that publishing the amendments for comment is unnecessary. 8 5 U.S.C. 553(b). In addition, publication of a substantive rule not less than 30 days before its effective date is required by the APA except as otherwise provided by the agency for good cause. 9 For the same reasons described above with respect to notice and opportunity for comment, FinCEN finds that there is good cause for making these technical amendments effective on January 11, 2008. 9 5 U.S.C. 553(d). III. Regulatory Flexibility Act Because no notice of proposed rulemaking is required for this final rule, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply. 10 10 See 5 U.S.C. 601(2) (for purposes of Regulatory Flexibility Act analyses, the term “rule” means any rule for which the agency publishes a general notice of proposed rulemaking). IV. Executive Order 12866 This final rule is not a “significant regulatory action” as defined in Executive Order 12866. Accordingly, a regulatory assessment is not required. List of Subjects in 31 CFR Part 103 Banks and banking, Brokers, Counter money laundering, Counter-terrorism, Currency, Foreign banking, Reporting and recordkeeping requirements. Authority and Issuance For the reasons set forth above, FinCEN is amending 31 CFR part 103 as follows: PART 103—FINANCIAL RECORDKEEPING AND REPORTING OF CURRENCY AND FOREIGN TRANSACTIONS 1. The authority citation for part 103 continues to read as follows: Authority: 12 U.S.C. 1829b and 1951-1959; 31 U.S.C. 5311-5314 and 5316-5332; title III, secs. 311, 312, 313, 314, 319, 326, 352, Pub. L. 107-56, 115 Stat. 307. Subpart I—Anti-Money Laundering Programs § 103.170 [Amended] 2. Section 103.170 is amended by: a. Removing paragraphs (b)(1)(i) and (b)(1)(ix); and b. Redesignating paragraphs (b)(1)(ii) as (b)(1)(i); (b)(1)(iii) as (b)(1)(ii); (b)(1)(iv) as (b)(1)(iii); (b)(1)(v) as (b)(1)(iv); (b)(1)(vi) as (b)(1)(v); (b)(1)(vii) as (b)(1)(vi); (b)(1)(viii) as (b)(1)(vii); (b)(1)(x) as (b)(1)(viii); (b)(1)(xi) as (b)(1)(ix); and (b)(1)(xii) as (b)(1)(x). Dated: December 20, 2007. James H. Freis, Jr., Director, Financial Crimes Enforcement Network. [FR Doc. E8-315 Filed 1-10-08; 8:45 am] BILLING CODE 4810-02-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0546; FRL-8347-7] Thiabendazole; Threshold of Regulation Determination AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes by rule that there is no need for a tolerance or tolerance exemption under the Federal Food Drug and Cosmetic Act (FFDCA) for the use of the fungicide thiabendazole as a seed treatment on dry peas. This determination is based on EPA's finding that any residues that remain in food from this use will be both non-detectable and below the level of regulatory concern. DATES: This regulation is effective January 11, 2008. Objections and requests for hearings must be received on or before March 11, 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-2007-0546. 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: Susan Stanton, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(703)305-5218; e-mail address: *stanton.susan@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-2007-0546 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 11, 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-2007-0546, 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. Background In the **Federal Register** of October 3, 2007 (72 FR 56325) (FRL-8151-6), EPA issued a proposed rule pursuant to sections 408(e) and 701(a) of the Federal Food, Drug, and Cosmetic Act (FFDCA). The proposed rule explained the Agency's determination that the use of the fungicide thiabendazole [2-(4-thiazolyl)benzimidazole] as a seed treatment on dry peas does not need an FFDCA tolerance or tolerance exemption based on EPA's finding that any residues that remain in food from this use will be both non-detectable and below the level of regulatory concern. The proposed rule included a discussion of the Agency's threshold of regulation

(TOR)policy and identified the information (including toxicity data, residue data and the analytical method) that EPA relied on in making this TOR determination; it also established a 60-day public comment period. There were no comments received in response to the proposed rule. III. Action on the Proposed Regulation Based upon the rationale and findings set forth in the proposed rule, the use of thiabendazole as a seed treatment on dry peas (including field pea, pigeon pea, chickpea or lentil) is designated as below the threshold of regulatory concern and thus as not requiring a tolerance or a tolerance exemption under FFDCA. The use is identified as such under 40 CFR 180.2010 (Threshold of regulation determinations). Designation of this use as below the level of regulatory concern does not legalize any detectable residues of thiabendazole on food. It does mean that, despite labeling for this use on a food or feed crop, it may be registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 *et seq* ., without obtaining a tolerance or exemption from the requirement of a tolerance as otherwise required by 40 CFR 152.112(g). The text of the regulation has been clarified on this point. Adequate analytical methodology (High Pressure Liquid Chromatography/Fluorescence Detector (HPLC/FLD) method) is available to detect residues of thiabendazole in/on dry peas. 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* . IV. Statutory and Executive Order Reviews 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, as amended by Executive Order 13422, 72 FR 2763, January 18, 2007). 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 or Safety Risks* (62 FR 19885, April 23, 1997). This 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). In addition, pursuant to section 605(b) of the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601 *et seq* .), the Agency, for the reasons explained in the proposed rule, certifies that this rule will not have a significant adverse economic impact on a substantial number of small entities because this rule does not have any adverse economic impacts. This 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* (59 FR 22951, November 6, 2000) do not apply to this rule. In addition, this rule does not impose an 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). 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, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: December 31, 2007. Debra Edwards, Director, 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. Section 180.2010 is amended by adding text to read as follows: § 180.2010 Threshold of regulation determinations. The following pesticide chemical uses on food or feed, or food or feed crops, do not need a tolerance or exemption from the requirement of a tolerance, and may be registered under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 *et seq* ., without obtaining such tolerance or exemption, based on EPA's determination that the uses are below the threshold of regulation. Pesticide Chemical CAS Reg. No. Use/Limits Analytical Method Thiabendazole 148-79-8 As a seed treatment for dry pea (including field pea, pigeon pea, chickpea or lentil), using a maximum application rate of 0.075 pounds of active ingredient per 100 pounds of seed. Vines or hay grown from treated seed may not be fed to livestock. High Performance Liquid Chromatography/Florescence Detector method 1 ; Modification of *Ion-Pairing Liquid Chromatographic Determination of Benzimidazole Fungicides in Foods* , Gilvydis and Walters, JAOAC, vol. 73, no. 5, 1990. 1 Available 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* [FR Doc. E8-267 Filed 1-10-08; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 48 CFR Parts 1516, 1533, and 1552 [Docket ID No. EPA-HQ-OARM-2003-0001; FRL-8515-8] RIN 2030-AA89 Acquisition Regulation: Guidance on Use of Award Term Incentives; Administrative Amendments AGENCY: Environmental Protection Agency. ACTION: Final rule. SUMMARY: The Environmental Protection Agency

(EPA)amends the EPA Acquisition Regulation (EPAAR) to add policy, procedures, and contract clauses for the use of award term incentives. This rule makes two administrative changes to the EPAAR. One change is to reflect the Civilian Board of Contract Appeals as EPA's new forum for appeals under the Contract Disputes Act of 1978. The other change corrects a numbering error in Subpart 1516.4. DATES: This final rule is effective on February 11, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OARM-2003-0001. All documents in the docket are listed on the *www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, 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 *www.regulations.gov* or in hard copy at EPA Docket Center, OEI Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the OEI Docket is

(202)566-1752. FOR FURTHER INFORMATION CONTACT: Marilyn E. Chambers, U.S. EPA, Office of Acquisition Management, Mail Code (3802R), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number:

(202)564-4398; fax number:

(202)565-2474; e-mail address: *chambers.marilyn@epa.gov.* I. Supplementary Information A. Background EPA published a proposed rule in the **Federal Register** at 72 FR 56708, October 4, 2007 to add guidance to the EPAAR on the use of award term contracts and make two administrative changes. The comment period closed on December 3, 2007. One comment was received. The respondent pointed out, effective January 6, 2007, the Board of Contract Appeals that existed at the General Services Administration was terminated and the cases were transferred to the Civilian Board of Contract Appeals. Our proposed rule stated EPA has changed its forum for appeals under the Contract Disputes Act of 1978 from the Department of Interior Board of Contract Appeals to the General Services Administration Board of Contract Appeals. The rule should have stated EPA has changed its forum for appeals under the Contract Disputes Act of 1978 from the Department of Interior Board of Contract Appeals to the Civilian Board of Contract Appeals. The final rule is revised to substitute the Civilian Board of Contract Appeals for the General Services Administration Board of Contract Appeals in section 1533.203. No other changes were made to the proposed rule. II. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This proposed rule is not a significant regulatory action for the purposes of Executive Order 12866; therefore, no review is required by the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB). B. Paperwork Reduction Act The Paperwork Reduction Act does not apply because this rule does not contain information requirements that require the approval of OMB under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 *et seq.* ). C. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601, *et seq.* The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impact of today's rule on small entities, “small entity” is defined as:

(1)A small business that meets the definition of a small business found in the Small Business Act and codified 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, because the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed 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. Since award term incentives will be available equally to large and small entities, this rule will not have a significant economic impact on 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 their regulatory actions on State, local, and Tribal governments, and the private sector. This proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in one year. Any private sector costs for this action relate to paperwork requirements and associated expenditures that are far below the level established for UMRA applicability. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA. E. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045, entitled “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. This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because it does not involve decisions on environmental health or safety risks. F. 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” are 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.” Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation. This 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. This rule amends the EPAAR to provide guidance on the use of award term incentives and make other administrative changes. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. G. 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 6, 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.” “Policies that have tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule does not have tribal implications. It does not have substantial direct effects on tribal governments, 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 in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule. H. 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, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities, unless to do so would be inconsistent with applicable law, or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule does not involve technical standards. Therefore, EPA is not considering use of any voluntary consensus standards. I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use” (66 FR 28335 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866. 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 rule does 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. This rule does not involve human health or environmental effects. K. Submission to Congress and the Government Accountability Office The Congressional Review Act, 5 U.S.C. 801, *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on February 11, 2008. List of Subjects in 48 CFR Parts 1516, 1533 and 1552 Government procurement. Dated: December 26, 2007. John C. Gherardini, Acting Director, Office of Acquisition Management. Therefore, 48 CFR Chapter 15 is amended as set forth below: PART 1516—TYPES OF CONTRACTS 1. The authority citation for part 1516 continues to read as follows: Authority: The provisions of this regulation are issued under 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); and 41 U.S.C. 418b. 2. Add section 1516.401-1 to read as follows: 1516.401-1 General. 3. Add section 1516.401-170 to read as follows: 1516.401-70 Award term incentives.

(a)Award term incentives enable a contractor to become eligible for additional periods of performance under a current contract by achieving prescribed performance measures under that contract.

(b)Award term incentives are designed to motivate contractors to superior performance. Accordingly, the prescribed performance measures, i.e., acceptable quality levels

(AQL)which must be achieved by a contractor to become eligible for an award term typically will be in excess of the AQLs necessary for Government acceptance of contract deliverables.

(c)The Award Term Incentive Plan sets forth the evaluation process, including the evaluation criteria and performance measures, and serves as the basis for award term decisions. The Award Term Incentive Plan may be unilaterally revised by the Government.

(d)Award term incentives may be used in conjunction with options. The Federal Acquisition Regulation does not prescribe a level of performance for the exercise of options, as contrasted with award term incentives, which should require superior performance as discussed in paragraph

(b)of this subsection. Award term incentive periods will follow any option periods. (e)(1) The Government has the unilateral right not to grant or to cancel award term incentive periods and the associated award term incentive plans if—

(i)The Contracting Officer has failed to initiate an award term incentive period, regardless of whether the contractor's performance permitted the Contracting Officer to consider initiating the award term incentive period; or

(ii)The contractor has failed to achieve the performance measures for the corresponding evaluation period; or

(iii)The Government notifies the contractor in writing it does not have funds available for the award term; or

(iv)The Government no longer has a need for the award term incentive period at or before the time an award term incentive period is to commence.

(2)When an award term incentive period is not granted or cancelled, any—

(i)Prior award term incentive periods for which the contractor remains otherwise eligible are unaffected.

(ii)Subsequent award term incentive periods are thereby also cancelled.

(f)Award term incentives may be appropriate for any type of service contract. 4. Add section 1516.401-270 to read as follows: 1516.401-270 Definition. Acceptable quality level

(AQL)as used in this subpart means the minimum percent of deliverables which are compliant with a given performance standard that would permit a contractor to become eligible for an award term incentive. Because the performance necessary for eligibility for the award term incentive may be in excess of that necessary for the Government acceptance of contract deliverables, the AQLs associated with the award term incentive may exceed the AQLs associated with the acceptance of contract deliverables. For example, under contract X, acceptable performance is 75 percent of reports submitted to the Government within five days. However, to be eligible for an award term incentive, 85 percent of reports must be submitted to the Government within five days. 1516.405 [Redesignated as 1516.406] 5. Redesignate section 1516.405 as section 1516.406. 1516.404-2 [Redesignated as 1516.405-2] 6. Redesignate section 1516.404-2 as section 1516.405-2. 1516.404-272 [Redesignated as 1516.405-270] 7. Redesignate section 1516.404-272 as section 1516.405-270. 1516.404-273 [Redesignated as 1516.405-271] 8. Redesignate section 1516.404-273 as section 1516.405-271. 1516.404-274 [Redesignated as 1516.405-272] 9. Redesignate section 1516.404-274 as section 1516.405-272. 10. Amend newly designated section 1516.406 to add new paragraphs

(c)and

(d)to read as follows: 1516.406 Contract clauses.

(c)The Contracting Officer shall insert the clauses at 1552.216-77, Award Term Incentive, 1552.216-78, Award Term Incentive Plan, and 1552.216-79 Award Term Availability of Funds in solicitations and contracts when award term incentives are contemplated. The clauses at 1552.216-77 and 1552.216-78 may be used on substantially the same basis.

(d)If the Contracting Officer wishes to use the ratings set forth in the National Institutes of Health

(NIH)Contractor Performance System

(CPS)on the contract at hand as the basis for contractor eligibility for an award term incentive, the Contracting Officer shall insert the clause at 1552.216-78 with its Alternate I. PART 1533—PROTESTS, DISPUTES AND APPEALS 11. The authority citation for part 1533 continues to read as follows: Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); and 41 U.S.C. 418b. 12. Revise section 1533.203 to read as follows: 1533.203 Applicability. The Civilian Board of Contract Appeals

(CBCA)will hear appeals from final decisions of EPA Contracting Officers issued pursuant to the Contracts Disputes Act. The rules and regulations of the CBCA appear in 48 CFR Chapter 61. PART 1552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 13. The authority citation for part 1552 continues to read as follows: Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); and 41 U.S.C. 418b. 14. Add section 1552.216-77 to read as follows: 1552.216-77 Award term incentive. As prescribed in 1515.406(c), insert a clause substantially the same as follows: Award Term Incentive (FEB 2008)

(a)General. This contract may be extended as set forth in paragraph

(b)based on overall contractor performance as evaluated in accordance with the Clause entitled “Award Term Incentive Plan,” provided the Agency has a need for the effort at or before the time an award term is to commence, and if the contractor receives notice of the availability of funding for an award term period pursuant to the “Award Term Availability of Funds” clause. The Contracting Officer is responsible for the overall award term evaluation and award term decision. The Contracting Officer will unilaterally decide whether or not the contractor is eligible for an award term extension, and in conjunction with the Contracting Officer's Representative, will determine the need for continued performance and funding availability.

(b)Period of performance. Provided the contractor has achieved the performance measures, e.g., acceptable quality levels, set forth in the clause “Award Term Incentive Plan,” the Contracting Officer may extend the contract by exercising ____ [insert the total award term incentive periods] additional award term incentive period(s) of ____ [insert the award term incentive period] months each. The total maximum period of performance under this contract, if the Government exercises any option periods and all award term incentive periods is ____ [insert the total of the base period, option periods (if any), and award term incentive periods] years.

(c)Right not to grant or cancel the award term incentive.

(1)The Government has the unilateral right not to grant or to cancel award term incentive periods and the associated award term incentive plans if—

(ii)The contractor has failed to achieve the performance measures for the corresponding evaluation period; or

(iii)The Government notifies the contractor in writing it does not have funds available for the award term incentive periods; or

(iv)The Government no longer has a need for the award term incentive period at or before the time an award term incentive period is to commence.

(2)When an award term incentive period is not granted or cancelled, any—

(i)Prior award term incentive periods for which the contractor remains otherwise eligible are unaffected.

(ii)Subsequent award term incentive periods are thereby also cancelled.

(d)Cancellation of an award term incentive period that has not yet commenced for any of the reasons set forth in paragraph

(c)of this clause shall not be considered either a termination for convenience or termination for default, and shall not entitle the contractor to any termination settlement or any other compensation. If the award term incentive is cancelled, a unilateral modification will cite this clause as the authority.

(e)Award term incentive administration. The award term incentive evaluation(s) will be completed in accordance with the schedule in the Award Term Incentive Plan. The contractor will be notified of the results and their eligibility to be considered for the respective award term incentive no later than 120 days after an evaluation period.

(f)Review process. The contractor may request a review of an award term incentive evaluation which has resulted in the contractor being ineligible for the award term incentive. The request shall be submitted in writing to the Contracting Officer within 15 days after notification of the results of the evaluation. (end of clause) 15. Add section 1552.216-78 to read as follows: 1552.216-78 Award Term Incentive Plan. As prescribed in 1515.406(c), insert a clause substantially the same as follows: Award Term Incentive Plan (FEB 2008)

(a)The Award Term Incentive Plan provides for the evaluation of performance, and, together with Agency need and availability of funding, serves as the basis for award term decisions. The Award Term Incentive Plan may be unilaterally revised by the Government. Any changes to the Award Term Incentive Plan will be made in writing and incorporated into the contract through a unilateral modification citing this clause. The Government will consult with the contractor prior to the issuance of a revised Award Term Incentive Plan, but is not required to obtain the contractor's consent to the revisions.

(b)[describe the evaluation periods and associated award term incentive periods, e.g., months 1-18 for award term incentive period I, and months 19-36 for award term incentive period II]

(c)[describe the evaluation schedule, e.g., 90 days after the end of the evaluation period]

(d)In order to be eligible for an award term incentive period the contractor must achieve all of the acceptable quality levels

(AQL)for the evaluated tasks, both individual and aggregate, for that evaluation period. Failure to achieve any AQL renders the contractor ineligible for the associated award term incentive period. [identify the most significant tasks. Describe the AQL for each task as well as an overall AQL for the associated evaluation periods, e.g., an AQL of 90% each for tasks 1 and 3, and an AQL of 85% for task 7, and an overall AQL of 90% for the months 1-18 evaluation period]

(e)[If the contract will contain a quality assurance surveillance plan (QASP), reference the QASP, e.g., attachment 2. Typically, the performance standards and AQLs will be defined in the QASP] (end of clause) Alternate 1 (FEB 2008) As prescribed in 1516.406(d), substitute paragraphs substantially the same as following paragraphs

(b)through

(e)for paragraphs

(b)through

(e)in the basic clause:

(b)At the conclusion of each contract year, an average contract rating shall be determined by using the numerical ratings entered into the National Institutes of Health

(NIH)Contractor Performance System

(CPS)for this contract. The NIHCPS is an interactive database located on the Internet which EPA uses to record contractor performance evaluations.

(c)The contract year average rating shall be obtained by dividing the combined ratings by the number of ratings, for example: Criteria Rating Quality of Product or Service 5. Cost Control 4. Timeliness of Performance 4. Business Relations 5. 18 (combined rating). / 4 (number of ratings). = 4.5 contract year average rating.

(d)The contractor shall be evaluated for performance from the start of the contract through Year __ [identify the evaluation period, e.g., year three]. The average rating for each contract year (as derived in paragraph

(c)above) will be combined and divided by [insert the number of evaluation periods] to obtain an overall average rating, for example: Evaluation period Average rating Year One 4.5. Year Two 4.75. Year Three 4.75. 14 (combined average rating). / 3 (number of evaluation periods). = 4.66 overall average rating.

(e)Based on the overall average rating as determined under paragraph (d), provided that no individual rating, i.e., Quality of Product or Service, Cost Control, Timeliness of Performance, or Business Relations is below a 3, the contractor shall be eligible for the following award term periods:

(1)Overall average rating of 4.6 to 5.0—Two award term incentive periods of __ [insert the number of months] months.

(2)Overall average rating of 4.0 to 4.6—One award term incentive period of __ [insert the number of months] months. 16. Add section 1552.216-79 to read as follows: 1552.216-79 Award Term Availability of Funds. As prescribed in 1515.406(c), insert the following clause: Award Term Availability of Funds (FEB 2008) Funds are not presently available for any award term. The Government's obligation under any award term is contingent upon the availability of appropriated funds from which payment can be made. No legal liability on the part of the Government for any award term payment may arise until funds are made available to the Contracting Officer for an award term and until the Contractor receives notice of such availability, to be confirmed in writing by the Contracting Officer. (end of clause) [FR Doc. E8-356 Filed 1-10-08; 8:45 am] BILLING CODE 6560-50-P 73 8 Friday, January 11, 2008 Proposed Rules DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 606, 610, 630, 640, 660, 820, and 1270 [Docket No. 2006N-0221] Requirements for Human Blood and Blood Components Intended for Transfusion or for Further Manufacturing Use; Extension of Comment Period AGENCY: Food and Drug Administration, HHS. ACTION: Proposed rule; extension of comment period. SUMMARY: The Food and Drug Administration

(FDA)is extending to August 4, 2008, the comment period for the proposed rule that appeared in the **Federal Register** of November 8, 2007 (72 FR 63416). In the proposed rule, FDA had requested comments by February 6, 2008. The agency is taking this action in response to requests for an extension to allow interested persons additional time to submit comments. DATES: Submit written and electronic comments by August 4, 2008. ADDRESSES: You may submit comments, identified by Docket No. 2006N-0221, by any of the following methods: *Electronic Submissions* Submit electronic comments in the following ways: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • Agency Web site: *http://www.fda.gov/dockets/ecomments* . Follow the instructions for submitting comments on the agency Web site. *Written Submissions* Submit written submissions in the following ways: • FAX: 301-827-6870. • Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. To ensure more timely processing of comments, FDA is no longer accepting comments submitted to the agency by e-mail. FDA encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal or the agency Web site, as described previously, in the ADDRESSES portion of this document under *Electronic Submissions* . *Instructions* : All submissions received must include the agency name and Docket No(s). and Regulatory Information Number

(RIN)(if a RIN number has been assigned) for this rulemaking. All comments received may be posted without change to *http://www.fda.gov/ohrms/dockets/default.htm* , including any personal information provided. For additional information on submitting comments see the “Comments” 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.fda.gov/ohrms/dockets/default.htm* and insert the docket number(s), found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. FOR FURTHER INFORMATION CONTACT: Brenda R. Friend,Center for Biologics Evaluation and Research (HFM-17), Food and Drug Administration,1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448, 301-827-6210. SUPPLEMENTARY INFORMATION: I. Background In the **Federal Register** of November 8, 2007 (72 FR 63416), FDA published a proposed rule with a 90-day comment period to request comments on the proposed rule. The proposed rule would establish regulations for blood and blood components, including Source Plasma and Source Leukocytes, to add donor requirements that are consistent with current practices in the blood industry, and to more closely align the regulations with current FDA recommendations. The agency has received requests for a 180-day extension of the comment period for the proposed rule. Each request conveyed concern that the current 90-day comment period does not allow sufficient time to develop a meaningful or thoughtful response to the proposed rule. FDA has considered the requests and is extending the comment period for the proposed rule for 180 days, until August 4, 2008. The agency believes that a 180-day extension allows adequate time for interested persons to submit comments without significantly delaying rulemaking on these important issues. II. Request for Comments Interested persons may submit to the Division of Dockets Management (see ADDRESSES ) written or electronic comments on this document. Submit a single copy of electronic comments or two paper copies of any mailed comments, except that individuals may submit one paper copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. Please note that in January 2008, the FDA Web site is expected to transition to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. After the transition date, electronic submissions will be accepted by FDA through the FDMS only. When the exact date of the transition to FDMS is known, FDA will publish a **Federal Register** notice announcing that date. Dated: January 2, 2008. Jeffrey Shuren, Assistant Commissioner for Policy. [FR Doc. E8-297 Filed 1-10-08; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 931 [Docket ID: OSM-2007-0021; SATS No. NM-047-FOR] New Mexico Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior. ACTION: Proposed rule; public comment period and opportunity for public hearing on proposed amendment. SUMMARY: We are announcing receipt of a proposed amendment to the New Mexico regulatory program (hereinafter, the “New Mexico program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). New Mexico is proposing additions of and revisions to the New Mexico Annotated Code

(NMAC)to improve and clarify the public notification process during permitting actions, to correct outdated citations, to comply with formatting requirements for New Mexico administrative law; the revisions also include non-substantive editorial changes. New Mexico revised its program to provide additional safeguards, clarify ambiguities, and achieve stylistic consistency. This document gives the times and locations that the New Mexico program and proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested. DATES: We will accept written comments on this amendment until 4 p.m., mountain standard time February 11, 2008. If requested, we will hold a public hearing on the amendment on February 5, 2008. We will accept requests to speak until 4 p.m., mountain standard time on January 28, 2008. ADDRESSES: You may submit comments by either of the following methods: • *Mail/Hand Delivery/Courier:* Bob Postle, Branch Chief, Field Operations, Program Support Division, Western Region, Office of Surface Mining, Reclamation, and Enforcement, 505 Marquette Ave. NM Suite 1200, Albuquerque, NM 87102, Telephone:

(505)248-5070, Internet address: *bpostle@osmre.gov.* • *Federal eRulemaking Portal: http://www.regulations.gov.* The proposed rule is listed under the agency name “OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT.” The proposed rule has been assigned Docket ID: OSM-2007-0021. If you would like to submit comments through the Federal eRulemaking Portal, go to *www.regulations.gov* and do the following. Click on the “Advanced Docket Search” button on the right side of the screen. Type in the Docket ID OSM-2007-0021 and click the “Submit” button at the bottom of the page. The next screen will display the Docket for NM-047-FOR. If you click on OSM-2007-0021, you can view the proposed rule, add comments, and view any comments submitted by other persons. *Docket:* You may access the docket for this rulemaking at *www.regulations.gov* . Search for Docket ID: OSM-2007-0021. At *www.regulations.gov* , you may review and print a copy of the New Mexico program amendment, a listing of any scheduled public hearings, and all written comments received in response to this document. The information may also be obtained at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting OSM's Albuquerque Area Office. Bob Postle, Branch Chief, Field Operations, Program Support Division, Western Region, Office of Surface Mining Reclamation and Enforcement, 505 Marquette Ave. NM Suite 1200, Albuquerque, NM 87102, Telephone:

(505)248-5070. Bill Brancard, Director, Mining and Minerals Division, New Mexico Energy, Minerals, and Natural Resources Department, 1220 South St. Francis Drive, Sante Fe, New Mexico 87505, Telephone:

(505)476-3400. FOR FURTHER INFORMATION CONTACT: Bob Postle, Telephone:

(505)248-5070, Internet address: *bpostle@osmre.gov.* SUPPLEMENTARY INFORMATION: I. Background on the New Mexico Program II. Description of the Proposed Amendment III. Public Comment Procedures IV. Procedural Determinations I. Background on the New Mexico Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (a)(7). On the basis of these criteria, the Secretary of the Interior conditionally approved the New Mexico program on December 31, 1980. You can find background information on the New Mexico program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 31, 1980, **Federal Register** (45 FR 86459). You can also find later actions concerning New Mexico's program and program amendments at 30 CFR 931.10, 931.11, 931.13, 931.15, 931.16, and 931.30. II. Description of the Proposed Amendment By letter dated November 28, 2007, New Mexico sent us a proposed amendment to its program (SATS No. NM-047-FOR) under SMCRA (30 U.S.C. 1201 *et seq.* ). New Mexico proposed this amendment at its own initiative. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES . New Mexico proposes revisions to the New Mexico Annotated Code

(NMAC)19.8. New Mexico proposed the revisions to improve and clarify the public notification process during permitting actions, correct outdated citations, and comply with formatting requirements for New Mexico administrative law; these revisions include many non-substantive editorial changes which are not described below. Specifically, New Mexico proposes the following substantive revisions: NMAC 19.8.7.701.F requires the permit application to include the owner of record and residents of dwellings and structures within one-half mile of any part of the proposed permit area (the previous requirement was limited to properties contiguous to any part of the proposed permit area). NMAC 19.8.8.812.D requires, consistent with the above proposed rule, that all dwellings and structures within one-half mile of the proposed permit area are included on the permit application maps (the previous rule required that only dwellings and structures within 1000 feet be included on the maps). NMAC 19.8.11.1100.B(1) requires that notice of a permit application or permit revision be provided by at least three of the following methods: mailing a notice to the owners of record within one-half mile of the proposed permit area, posting a notice in four publicly accessible places, publishing a notice in a newspaper, and radio broadcasted public service announcements. If there is a significant non-English speaking population living within the area, a method to reach these people must be used. NMAC 19.8.11.1100.D(5) requires that written notifications shall be mailed to persons on a list maintained by the Director. NMAC 19.8.11.1100.E(3) requires that written notifications be posted on a Web site after an application is received. NMAC 19.8.11.1100.F require that the Director shall hold a public meeting within 60 days of receipt of a completed application for a new permit or a permit revision. III. Public Comment Procedures Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the New Mexico program. Written Comments Send your written or electronic comments to OSM at one of the two addresses given above (see ADDRESSES ). Your comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than the two listed above will be included in the docket for this rulemaking and considered. Availability of Comments Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Public Hearing If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., mountain standard time, on January 28, 2008. If you are disabled and need reasonable accommodation to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard. Public Meeting If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the docket for this rulemaking. IV. Procedural Determinations Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis performed for the Federal regulations. Executive Order 12866—Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget

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

(a)and

(b)of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met. Executive Order 13132—Federalism This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian Tribes and have determined that the rule does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. The rule does not involve or affect Indian Tribes in any way. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is

(1)considered significant under Executive Order 12866, and

(2)likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 *et seq.* ). Regulatory Flexibility Act The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The State submittal, which is the subject of this rule, is based on Federal regulations for which an analysis was prepared and certification made that such regulations would not have a significant economic effect on a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

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

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

(c)does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the analysis prepared for the Federal regulations. Unfunded Mandates This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based on Federal regulations for which an analysis was prepared and a determination made that the Federal regulations did not impose an unfunded mandate. List of Subjects in 30 CFR Part 931 Intergovernmental relations, Surface mining, Underground mining. Dated: December 7, 2007. Allen D. Klein, Regional Director, Western Regional Coordinating Center. [FR Doc. E8-359 Filed 1-10-08; 8:45 am] BILLING CODE 4310-05-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 224 [Docket No. 071128765-7769-01] RIN 0648-AW32 Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for Black Abalone AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: We, NMFS, have completed a review of the status of black abalone ( *Haliotis cracherodii* ) under the Endangered Species Act (ESA). After reviewing the best scientific and commercial information available, evaluating threats facing the species, and considering efforts being made to protect black abalone, we have concluded that the species is in danger of extinction throughout all of its range and are proposing to list the species as endangered under the ESA. This proposal is based on information indicating that: the disease known as withering syndrome has spread to areas throughout the range of the species, has been responsible for the local extirpation of populations throughout a large part of the species' range, and threatens remaining black abalone populations; low adult densities below the critical threshold density required for successful fertilization exist throughout a large part of the species' range; and, a number of interacting factors (e.g., suboptimal water temperatures, reduced genetic diversity, and illegal harvest) may further hamper natural recovery of the species. A critical habitat designation is being considered and may be proposed in a subsequent **Federal Register** notice. If the proposed listing is finalized, a recovery plan will be prepared and implemented. DATES: Comments on this proposal must be received by April 10, 2008. Public hearing

(s)will be held promptly if any person so requests by February 25, 2008. Notice of the location

(s)and time(s) of any such hearing(s) will be published in the **Federal Register** not less than 15 days before the hearing(s) is(are) held. ADDRESSES: You may submit comments, identified by [RIN 0648-AW32], by any one of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal *http://www.regulations.gov* . • Facsimile (fax): 562-980-4027, Attn: Melissa Neuman. • Mail: Submit written comments to Chief, Protected Resources Division, Southwest Region, National Marine Fisheries Service, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. 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. We will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. A draft black abalone status review report and other reference materials regarding this determination can be obtained via the Internet at: http://www.nmfs.noaa.gov. The draft status review report and list of references are also available by submitting a request to the Assistant Regional Administrator, Protected Resources Division, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. FOR FURTHER INFORMATION CONTACT: Melissa Neuman, NMFS, Southwest Region

(562)980-4115; or Lisa Manning, NMFS, Office of Protected Resources

(301)713-1401. SUPPLEMENTARY INFORMATION: Background Black abalone was added to the National Marine Fisheries Service's (NMFS') Candidate Species list on June 23, 1999 (64 FR 33466) and remained on this list after NMFS redefined the term “candidate species” on April 15, 2004 (69 FR 19975). We initiated an informal ESA status review of black abalone on July 15, 2003, and formally announced initiation of a status review on October 17, 2006 (71 FR 61021), at the same time soliciting information from the public. On December 27, 2006, we received a petition from the Center for Biological Diversity

(CBD)to list black abalone as either an endangered or threatened species under the ESA and to designate critical habitat for the species concurrently with any listing determination. We published a 90-day finding on April 13, 2007 (72 FR 18616), stating that the CBD petition presented substantial scientific and commercial information indicating that the petitioned actions may be warranted. In June 2007, we assembled a Status Review Team

(SRT)to review the available information, assess the extinction risk and threats facing the species, and produce an ESA status review report for black abalone. The draft status review report (VanBlaricom *et al.* , 2007) (hereafter “status report”) provides a thorough account of black abalone biology and natural history, and assesses demographic risks, threats and limiting factors, and overall extinction risk. The key background information and findings of the draft status report are summarized below. Taxonomy and Species Description Abalone, members of the gastropod genus Haliotis, are marine gastropods that occur throughout most of the world (Cox, 1962). There are approximately 60 species (Geiger, 1999) found in temperate to tropical waters from the intertidal zone (i.e., the area of the foreshore and seabed that is exposed to the air at low tide and submerged at high tide) to depths of over 50 m. All are benthic, occurring on hard substrate, relatively sedentary, and generally herbivorous, feeding on attached or drifting algal material. There are seven species of abalone native to the west coast of North America (Geiger, 1999). The taxonomic classification of black abalone is as follows: Phylum Mollusca, Class Gastropoda, Subclass Prosobranchia, Order Archaeogastropoda, Superfamily Pluerotomariacea, Family Haliotidae, Genus *Haliotis* , Species *cracherodii* . Leach

(1814)gave the first formal description of this shallow-living abalone (upper intertidal zone to subtidal depths of 6 m), describing the shell as smooth, circular, and black to slate blue in color. There are five to nine open respiratory pores that are flush with the shell's surface. Typically, the shell's interior is white (Haaker *et al.* , 1986), with a poorly defined or no muscle scar (Howorth, 1978). Adults attain a maximum shell length of approximately 20 cm (throughout this document we use the maximum diameter of the elliptical shell as the index for individual body size). The muscular foot of the black abalone allows the animal to clamp tightly to rocky surfaces without being dislodged by wave action. Locomotion is accomplished by an undulating motion of the foot. A column of shell muscle attaches the body to the shell. The mantle and black epipodium, a sensory structure and extension of the foot which bears lobed tentacles of the same color (Cox, 1960), circle the foot and extend beyond the shell of a healthy black abalone. The internal organs are arranged around the foot and under the shell. Historical and Current Distribution There is some debate regarding the northern extent of the historic range of black abalone. Many have cited the historic range as extending from Coos Bay, Oregon, USA to Cabo San Lucas, Southern Baja California, Mexico (Geiger, 2000). However, the northernmost documented record of black abalone (based on museum specimens) is from Crescent City (Del Norte County, California, USA; Geiger, 2004). Most experts agree that the current range of black abalone extends from Point Arena (Mendocino County, California, USA) south to Northern Baja California, Mexico. Black abalone may exist, but are considered extremely rare, north of San Francisco (Morris *et al.* , 1980) to Crescent City, California, USA and south of Punta Eugenia to Cabo San Lucas, Baja California, Mexico (P. Raimondi, pers. comm.). Within this broad geographic range, black abalone generally inhabit coastal and offshore island intertidal habitats on exposed rocky shores where bedrock provides deep, protective crevice shelter (Leighton, 2005). Population Structure Recent studies have evaluated population structure in black abalone (Hamm and Burton, 2000; Chambers *et al.* , 2006; Gruenthal, 2007) using various methods. These studies indicate:

(1)minimal gene flow among populations;

(2)black abalone populations are composed predominantly of closely related individuals produced by local spawning events;

(3)gene flow among island populations is relatively greater than between island and mainland populations; and

(4)the overall connectivity among black abalone populations is low and likely reflects limited larval dispersal, and a low degree of exchange among populations. Habitat Black abalone occur over a broad latitudinal range, though the range appears to have narrowed somewhat from historic times. This broad range, in addition to their small-scale distribution (high intertidal to 6 m depth), is associated with an evolved capability to withstand extreme variation in environmental conditions such as temperature, salinity, moisture, and wave action. Black abalone occur on a variety of rock types, including igneous, metamorphic, and sedimentary rocks at a number of locations. Complex surfaces with cracks and crevices in upper and middle intertidal zones may be crucial recruitment habitat and appear to be important for adult survival as well (Leighton, 1959; Leighton and Boolootian, 1963; Douros, 1985, 1987; Miller and Lawrenz-Miller, 1993; VanBlaricom *et al.* , 1993; Haaker *et al.* , 1995). Complex configurations of rock surfaces likely afford protection from predators, direct impacts of breaking waves, wave-born projectiles, and excessive solar heating during daytime low tides. Movement Planktonic larval abalone movement is almost certainly determined primarily by patterns of water movement in nearshore habitats near spawning sites. Individual larvae may be able to influence movement to some degree by adjusting vertical position in the water column, but to our knowledge the ability of black abalone larvae to move in this way has not been documented. Movement behavior of post-metamorphic juvenile black abalone is likewise unknown. Leighton

(1959)and Leighton and Boolootian

(1963)indicate that black abalone larvae may settle and metamorphose in the upper intertidal zone, using crevices and depressions (including those formed by abrasive action of other intertidal mollusks) as habitat. Leighton and Boolootian

(1963)suggest that young black abalone move lower in the intertidal zone as they begin to grow, occupying the undersides of large boulders. To our knowledge there is no published information on direct observations of movement behavior of small ( <20 mm) juvenile black abalone in the field. Qualitative (Leighton, 2005; VanBlaricom, unpublished observations) and quantitative (Bergen, 1971; Blecha *et al.* , 1992; VanBlaricom and Ashworth, in preparation; Richards, unpublished observations) studies of movement in black abalone suggest that smaller abalone (<65 mm) move more frequently than larger abalone, movement is more frequent during night hours compared to daylight hours, and that larger abalone may remain in the same location for many years. Diet Larvae are lecithotrophic (i.e., receive nourishment via an egg yolk) and apparently do not feed while in the plankton. From the time of post-larval metamorphosis to a size of about 20 mm, black abalone are highly cryptic, occurring primarily on the undersides of large boulders or in deep narrow crevices in solid rocky substrata. In such locations the primary food sources are thought to be microbial and possibly diatom films (Leighton, 1959; Leighton and Boolootian, 1963; Bergen, 1971). At roughly 20 mm black abalone move to more open locations, albeit still relatively cryptic, gaining access to both attached macrophytes and to pieces of drift plants cast into the intertidal zone by waves and currents. As black abalone continue to grow, the most commonly observed feeding method is entrapment of drift plant fragments. Webber and Giese (1969), Bergen (1971), Hines and Pearse (1982), and Douros

(1987)have confirmed the importance of large kelps in the diet of juvenile and adult black abalone. The primary food species are said to be *Macrocystis pyrifera* and *Egregia menziesii* in southern California (i.e., south of Pt. Conception) habitats, and *Nereocystis leutkeana* in central and northern California habitats. Reproduction Black abalone have separate sexes and are “broadcast” spawners. Gametes from both parents are shed into the sea, and fertilization is entirely external. Resulting larvae are minute and defenseless, receive no parental care or protection of any kind, and are subject to a broad array of physical and biological sources of mortality. Species with a broadcast-spawning reproductive strategy are subject to strong selection for maximum fecundity of both sexes. Only through production of large numbers of gametes can broadcast spawners overcome high mortality of gametes and larvae and survive across generations. It is not uncommon for broadcast-spawning marine species, a group including many taxa of fish and invertebrates, to produce millions of eggs or sperm per individual per year. Broadcast spawners are also subject to other kinds of selection for certain traits associated with reproduction, including spatial and temporal synchrony in spawning and mechanisms that increase probabilities for union of spawned gametes. Spawning Density As intertidal organisms on exposed rocky shores, black abalone typically release gametes into environments of extreme turbulence. As a consequence, eggs and sperm must be released from adults in relatively close spatial and temporal proximity in order to have any chance of union and fertilization before rapid dispersal and loss of opportunity. A central problem for conservation of black abalone is the dramatic reduction in densities over the past quarter-century in almost the entire geographic range of the species. Reductions in density are so extreme and widespread that considerable attention is now focused on assessment of critical density thresholds for successful reproduction, recruitment, and population sustainability. A review of critical density thresholds, below which recruitment failure occurs, for other marine, broadcast-spawning invertebrates (i.e., sea urchins, sea cucumbers, hard clams, scallops, giant clams, and geoduck clams) has revealed that critical density thresholds exist across a broad taxonomic range. However, despite apparent risks of local extinction when populations decline below critical density thresholds, there are several cases where combinations of circumstances allow populations to recover to densities above the critical thresholds. Thus, for black abalone the key conservation issues are identification of critical density thresholds and an understanding of circumstances, if any, that may allow escape from high risks of local extinction when thresholds are breached. Babcock and Keesing

(1999)estimated critical density thresholds at 0.15-0.20 m-2 for greenlip abalone ( *Haliotis laevigata* ). Tissot

(2007)reviewed recruitment patterns in three long-term data sets for black abalone in California: in each case, recruitment failed when declining population densities fell below 0.75-1.1 m-2. Tissot

(2007)noted that densities in most black abalone populations south of Cayucos, California, have fallen below the densities noted. Recent evidence suggests that disease-induced increases in the mortality rate of black abalone continue to move northward along the mainland coast of California (e.g., Raimondi *et al.* , 2002; Miner *et al.* , 2006). Thus, critical density thresholds are thought to have been violated for most of the black abalone populations in California, and because of the spread of the disease known as withering syndrome (as explained below), the number and geographic scope of populations with densities falling below sustainable levels is expected to increase. Larval Settlement A sequence of studies and discoveries by Morse and colleagues (Morse *et al.* , 1979; Morse and Morse, 1984; Trapido-Rosenthal and Morse, 1986; Morse, 1990; Morse, 1992), Douros (1985), and Miner *et al.*

(2006)suggest that availability of crustose coralline algae in appropriate intertidal habitats may be significant to the success of the larval recruitment process in black abalone; and, that the presence of adult black abalone may facilitate larval settlement and metamorphosis because the activities and presence of the abalone favor the maintenance of substantial substratum cover by crustose coralline algae. Although crustose coralline algae are ubiquitous in rocky benthic habitats along the west coast of North America, a mechanistic understanding of processes that sustain these algal populations has not been established to our knowledge. If the presence of black abalone facilitates the abundance of crustose coralline algae, it follows that the issue of critical density thresholds may take on added importance. Larval Dispersal and Recruitment Indirect methods for assessing larval dispersal in abalone (Tegner and Butler, 1985; Prince *et al.* , 1988; Hamm and Burton, 2000; Chambers *et al.* , 2005; Chambers *et al.* , 2006; Gruenthal, 2007) point to consistent results. Given that most abalone larvae are drifting in the water for a period of about 3-10 days before settlement and metamorphosis (e.g., McShane, 1992), abalone in general, including black abalone, have limited capacity for dispersal over distances beyond a few kilometers, and are able to do so only rarely. Tissot

(2007)has estimated empirically that successful recruitment of black abalone requires the presence of local adult populations at densities of 0.75-1.1 m −2 or greater, and that the number of known populations of adult black abalone at or above putative threshold densities is diminishing over time in a geographically progressive manner. Tissot

(2007)further noted that virtually all monitored black abalone populations continue to decrease in mean density over time. This combination of observations emphasizes the importance of critical density thresholds in the sustainability and conservation of black abalone populations throughout their range. Patterns of aggregation may mitigate effects of decline below a critical density threshold (VanBlaricom, unpublished data). However, only one or two populations in California that have sustained mass mortality due to withering syndrome are known to be increasing in numbers. Thus, even if an ability for black abalone to aggregate exists, it may not be sufficient to facilitate successful recruitment and population sustainability under current environmental conditions. Growth and Maximum Size Available data on black abalone growth suggest that young animals reach maximum shell diameters of about 2 cm in their first year, then grow at rates of 1-2 cm per year for the next several years. Growth begins to slow at lengths of about 10 cm, corresponding to an age range of 4-8 yrs. Beyond this point, growth is less predictable, shell erosion may become a significant factor, and size distributions for older animals may vary according to local conditions. Growth and erosion of shells may come into equilibrium in older black abalone, such that growth can be viewed as facultatively determinant. Maximum recorded shell length for black abalone was listed at 213 mm by Wagner and Abbott (1990). Ault

(1985)reported a maximum shell length of black abalone at 215 mm. Leighton

(2005)indicated a shell length of 216 mm reported by Owen (unpublished observation). At least two black abalone of approximately 220 mm maximum shell length were known to be alive at San Nicolas Island in January 2007 (VanBlaricom, Neuman, and Witting, unpublished observations), but the cryptic locations of the animals have made measurements awkward and possibly not accurate. Monitoring and measurement of these individuals will continue in association with ongoing population surveys. Mortality Mortality rates caused by withering syndrome appear to be sensitive to fluctuations in local sea surface temperatures (Friedman *et al.* , 1997; Raimondi *et al.* , 2002; Harley and Rogers-Bennett, 2004; Vilchis *et al.* , 2005). There is evidence that, in the short term, population-scale mortality rates vary in space and time from near zero to high proportions of local populations. The available evidence suggests that mortality rates driven by withering syndrome are highest during periods following elevations in sea surface temperature (e.g., Raimondi *et al.* , 2002). Over the long term, all available evidence indicates substantial increases in mortality rates, and consequent reductions in densities, in populations throughout the range of black abalone that have been afflicted by withering syndrome (e.g., Tissot, 2007). More detail regarding the severe risk that withering syndrome poses to the future survival of the species is presented below (see *Summary of Factors Affecting the Species* and *Population Modeling: Geographic Spread of Disease vs. Disease Resistance* ). Physical oceanographic conditions, predation by octopuses, lobsters, sea stars, fishes, sea otters, and shorebirds, competition with sea urchins, and food limitation may all impose mortality at varying rates depending on black abalone life stage. The draft status report (VanBlaricom *et al.* , 2007) provides additional qualitative information regarding the relative importance of these sources of mortality. The importance of anthropogenic mortality (i.e., commercial and recreational harvest, illegal harvest, incidental losses, pollution) is also discussed in the draft status report and in other sections of this proposed rule (see *Summary of Factors Affecting the Species* ). Abundance There are two types of data that can be examined to provide a better understanding of variation in black abalone abundance over time: fishery-dependent and fishery-independent data. Based on a detailed examination of these two data types, Tissot

(2007)evaluated trends in black abalone abundance over the last 3 decades. Fishery-dependent Information An intertidal fishery focused on red ( *Haliotis rufescens* Swainson, 1822), green ( *Haliotis fulgens* Philippi, 1845), and black abalone began in the 1850s in Central California and in the 1880s in Baja California, Mexico (Bonnot, 1930; Lundy, 1997). The fishery peaked at 1,860 mt in 1879 (Cox, 1962). By 1913, the intertidal fishery was closed because of concerns regarding overfishing (Bonnot, 1930). From 1913-1928, commercial and recreational dive fisheries developed, but black abalone were not documented prior to 1940. During the 18 th and 19 th centuries, two predatory forces on black abalone populations in Southern California had been removed. First, the Native American Chumash and Gabrielino/Tongva cultures of the southern California Islands, who were known to have harvested black abalones in large numbers for food over periods of five to ten millennia, and fur hunters responsible for the elimination of southern sea otter populations south of Point Conception by the time of the U.S. Civil War. There is uncertainty regarding the ecological importance of sea otter predation on black abalone, but the potential for strong interactions is substantial given known effects of sea otter predation on red abalone (for more detailed information on the effects of sea otter predation see *Summary of Factors Affecting the Species* below). California Department of Fish and Game landings data (1940-1993) indicate that black abalone were intensively exploited only after other more marketable species had been largely depleted. Black abalone landings peaked in 1973 at 868 mt. During the peak decade of black abalone fishing from 1972-1981, Rogers-Bennett *et al.*

(2002)estimate that approximately 3.5 million individuals were taken in the commercial fishery, and an additional 6,729 animals were taken in the recreational fishery. By 1993 both fisheries for black abalone were closed due to concerns regarding severe population declines (Haaker *et al.* , 1992). Rogers-Bennett *et al.*

(2002)estimated baseline abundance, prior to overfishing and mass mortalities due to withering syndrome (for more detailed information on withering syndrome see *Summary of Factors Affecting the Species* below), for black abalone using landings data from the peak of the commercial and recreational fisheries (1972-1981), assuming that the population was at least as large as the number taken in the fishery, that the fishery “sampled” all size classes, and that no new individuals were added to the population during the 10-year peak of the fishery. With these assumptions, the baseline minimum estimate of abundance for black abalone prior to overexploitation and withering syndrome was 3.54 million animals. This estimate provides a historic perspective on patterns in abundance, defines a relevant baseline abundance against which to compare modern day trends, and helps to assess the species' current status and risks. However, it should be noted that the estimate was calculated using data from a period of time when black abalone reached extraordinary abundance levels on the Channel Islands, possibly in response to the elimination of subsistence harvests by indigenous peoples, limited public access in modern times, and regional-scale extinctions of sea otters. The abalone fishery in Mexico dates to approximately 1860, but modern commercial harvests did not develop until the 1940s. The fishery is pursued by 22 fishing cooperatives, distributed across 4 management zones on the Pacific coast of the Baja California peninsula. Five cooperatives are present in management zone 1, which is the northernmost of the zones and extends from the U.S.-Mexico border to Punta Malarrimo, Baja California Sur. Reported commercial fishery data for black abalone during 1990-2003 comes entirely from management zone 1. During this time period, the commercial catch of black abalone in Mexico declined from a high of 28 mt in 1990 to <0.5 mt in 2003, an overall decline of greater than 98 percent (J. Palleiro, unpublished data; Sierra-Rodriguez *et al.* , 2006). These data suggest similar fishery declines to those in California. The decline in Mexico is attributed primarily to large mortality events associated with withering syndrome, rather than to overfishing. Fishery-independent Information The earliest fishery-independent black abalone abundance estimates were generated beginning in 1975 at survey stations on the Palos Verdes Peninsula of Los Angeles County, California (Miller and Lawrenz-Miller, 1993). Black abalone densities ranged from 1.0 to 6.8 m −2 from 1975-1976, but declined during the remainder of the survey interval to less than 0.3 m −2 by 1987. Douros

(1987)reported densities as great as 127 m-2 in certain surge channels at Santa Cruz Island in 1983-1984, but typical densities within a study site ranged from 30 to 90 m-2. Other field studies during the 1980s on Santa Cruz Island yielded black abalone densities of 0 to 50 m −2 (Haaker *et al.* , 1992). Tissot (1995), also studying black abalone populations on Santa Cruz Island, found averages of 43 to 58 m −2 for surf-exposed and protected subpopulations, respectively, in 1987. These densities declined over the next 6 years due to withering syndrome, dropping to less than 1 m −2 by 1993. As of this writing, only one site on Santa Cruz Island (Willows Anchorage) has experienced an increase in local density since 1993. Several studies monitoring black abalone abundance at other Channel Islands found similar declines through the late 1980s and early 1990s. From 1985 to 1989, mean densities for black abalone populations on Anacapa, Santa Rosa, Santa Barbara, and San Miguel islands were obtained annually along permanent transects established by the Channel Islands National Park (Richards and Davis, 1993). Densities ranged from 20 to 50 m −2 on early visits, but fell to <10 m −2 by 1989 for all islands except for San Miguel due to mass mortalities associated with withering syndrome. By 1996, local densities fell to 1.0 m −2 or less on San Miguel Island. At San Nicolas Island, densities of black abalones averaged >10 m −2 at nine monitored sites from 1981 to the early 1990s. Withering syndrome was first seen at San Nicolas Island in spring 1992 (VanBlaricom *et al.* , 1993), and densities declined during the middle 1990s to <1 abalone m −2 at all sights except one (VanBlaricom, unpublished data. The highest local density of black abalone recorded among the several studies of island populations in the 1980s was 296 individuals, primarily adults, in a single quadrat of 1 m 2 at San Nicolas Island on November 23, 1988, at site 7 (VanBlaricom, 1993; unpublished data). In recent years, three fishery-independent surveys for black abalone have been conducted along the mainland coast and offshore islands of Baja California, Mexico. In 2002, a survey for black abalone was done at Bahia Tortugas, just south of Punta Eugenia and located at the north end of management zone 2. Only four individuals were found, ranging in maximum shell diameter from 121 to 152 mm (Sierra Rodriguez *et al.* , 2006). A second survey was conducted in 2004. Black abalone were found at low densities where they occurred, with 98 percent of located animals measuring <120 cm in maximum shell diameter. No animals were found with symptoms of withering syndrome during the 2004 survey. Black abalone were found along the mainland coast of management zone 1, and on Isla Guadalupe and Isla San Jeronimo. The only black abalone found in Baja California Sur were at Bahia Tortugas (Sierra-Rodriguez *et al.* , 2006). The third study was conducted in 2005 in regions of upwelling on rocky intertidal benches along the northern Baja California coast from Costa Azul to Punta Baja (Raimondi, unpublished data). Twelve sites, suspected to have been affected by withering syndrome, were surveyed for suitable habitat (rocky crevices) in the mid to low intertidal zone, and then timed searches were conducted for black abalone. Black abalone were not densely aggregated at any site surveyed in this study; however, a large proportion of the individuals found were small (<50 mm). This evidence of recent recruitment in northern Baja California is promising given that there is no evidence of successful recruitment to mainland California sites affected by withering syndrome (south of Pt. Piedras Blancas in northern San Luis Obispo County). Raimondi (unpublished data) hypothesized that the discrepancy between the patterns of recruitment in the two regions may be because:

(1)healthy populations exist somewhere in Mexico (perhaps on offshore islands), and these are seeding northern areas; or

(2)recruitment dynamics are different for withering syndrome-impacted sites in Mexico versus those in California. Fresh shells, in some cases containing flesh, were found at three of the twelve sites, suggesting that withering syndrome may still be impacting areas of Northern Baja California. Large numbers of older shells were identified at a few sites, suggesting that black abalone were abundant in these areas in the past. Consideration as a “Species” Under the ESA The ESA defines a species as “any species or subspecies of wildlife or plants, or any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Black abalone is a marine invertebrate and is not a subspecies; therefore, it may not be subdivided into a listable unit below the taxonomic species level. Status of Black Abalone Black abalone have experienced major declines in abundance that prompted eventual closure of the commercial and recreational fisheries and resulted in local extinctions and low local densities in the majority of long-term monitoring studies in California. These declines have been particularly severe in the southern California Islands, which were major foci for the commercial fishery from 1970-1993 and where abalone densities were high (>40 m −2 ) as late as the mid-1980s. Although the geographic range of black abalone extends to northern California, the vast majority of abalone populations have historically occurred south of Monterey, particularly in the Channel Islands (Cox, 1960; Karpov *et al.* , 2000). Thus, black abalone populations have been severely reduced over an area that covers more than half of the species' geographic range, and black abalone from these areas historically comprised greater than 90 percent of the commercial fishery catch and the majority of the adult black abalone populations in California. Both the commercial fishery trends and long-term monitoring studies indicate that significant declines in black abalone abundance began in southern California in the mid-1980s. The first evidence of decline came from Palos Verdes in the late 1970s and early 1980s and at Laguna Beach in 1985-1986 (Tissot, 1988). However, in the case of Palos Verdes, the decline may have been due to other factors (Miller and Lawrenz-Miller, 1993). By 1986, declining populations and associated observations of withering syndrome had spread to the northern Channel Islands, starting at Anacapa, progressing to Santa Rosa, Santa Cruz, and Santa Barbara islands, and finally reaching San Miguel Island in 1989 (Tissot, 1991; Davis *et al.* , 1992; Tissot, 1995). By the early 1990s, declines were observed on San Nicolas Island (VanBlaricom *et al.* , 1993) and north of Point Conception on the mainland to Government Point, Santa Barbara County (Altstatt *et al.* , 1996). During the 1990s, declines in abundance were noted north of Government Point to Cayucos in San Luis Obispo County (Altstatt *et al.* , 1996; Raimondi *et al.* , 2002). Noted declines were also observed in central Baja California, Mexico, around Bahia Tortugas during El Nino events in the late 1980s and 1990s (Altstatt *et al.* , 1996; Pedro Sierra-Rodriquez, personal communication) and may be linked to declines in the fishery that occurred in the 1990s. Thus, the spread of withering syndrome is strongly associated with declines in abundance and with a pattern of increased northward expansion co-occurring with increasing coastal warming and El Nino events (Tissot, 1995; Altstatt *et al.* , 1996; Raimondi *et al.* , 2002). To our knowledge there are no data available on black abalone populations north of San Mateo County on the mainland coast of California. As a consequence, we lack information on the remaining stocks of black abalone not influenced by withering syndrome. The two northernmost sites have either not been studied since 1995 (Ano Nuevo; Tissot, 1995) or have only been recently established in large, dispersed areas (Pigeon Point; Raimondi and Miner, pers. comm.). Establishment of long-term monitoring studies in northern California (e.g., in San Francisco County and north of the Golden Gate) would serve an important need in documenting northward progression of withering syndrome and mass mortality in the northern limit of the geographic range of black abalone. Natural recovery of severely reduced abalone populations can be a very slow process (e.g., Tegner, 1992). This is largely due to the low reproductive efficiency of widely dispersed adult populations coupled with short larval dispersal distances (see *Reproduction* and *Spawning Density* above). Therefore, severely reduced populations, in addition to providing few reproductive adults, also experience reduced effectiveness of fertilization and eventual recruitment of larval abalone. Moreover, many studies have shown that abalone larvae generally do not disperse widely. For example, Prince *et al.*

(1988)and McShane

(1992)showed a strong correlation between the abundances of adult and newly recruited abalone at several sites in South Australia, which suggests that larvae are not dispersed very far from their point of origin. Similarly, Tegner

(1992)showed that recruitment of juvenile green abalone was rare in Palos Verdes, California, where adult abalone were very uncommon even though abundant adult stocks were found less than 30 km away in the Channel Islands. Thus, although more abundant black abalone populations occur in central and perhaps northern California, decimated stocks in southern California are unlikely to receive significant recruitment from these distant populations (Hamm and Burton, 2000). Studies indicate that a local adult density “threshold” exists and influences local recruitment. Recovery will largely depend on the density of local brood stocks and whether this density is below the critical value necessary for successful recruitment (Tegner, 1992). Based on field experiments, Babcock and Keesing

(1999)showed that recruitment failure occurred in greenlip abalone at adult densities of 0.15-0.20 m −2 . Based on empirical data from three long-term studies of black abalone in California, recruitment failure occurred below adult densities of 0.75-1.10 m −2 . Given that the majority of populations south of Cayucos in central California are below this threshold, many significantly so, it seems unlikely that these populations will be able to recover naturally to their former abundances, at least in the near future. Moreover, given the continued decline of most populations and the continued northward expansion of withering syndrome with warming events (Raimondi *et al.* , 2002), it seems likely that black abalone populations will continue to decline on a large scale. Assessment of Risk of Extinction Analysis of Demographic Risk The demographic risks that black abalone face were assessed by considering four criteria (abundance, growth rate/productivity, spatial structure/connectivity, and genetic and life history diversity) and other key risks (e.g., threats). These criteria provide a strong indication of the level of extinction risk faced by a species. A species at very low levels of abundance and with few populations will be less tolerant to environmental variation, catastrophic events, genetic processes, demographic stochasticity, ecological interactions, and other processes. Productivity or a growth rate that is unstable or declining over a long period of time may reflect a variety of causes, but indicates poor resiliency to future environmental variability or change. For species at low levels of abundance, in particular, declining or highly variable productivity confers a high level of extinction risk. A species with a geographic spatial structure that is not widely distributed across a variety of well-connected habitats will have a diminished capacity for recolonizing locally extirpated populations, and is at increased risk of extinction due to environmental perturbations and catastrophic events. A species that has lost locally adapted genetic and life-history diversity may lack the raw resources necessary to endure short- and long-term environmental changes. The SRT concluded that black abalone face high levels of risk in each of the four demographic criteria. The SRT unanimously scored the species' abundance as high risk due to critically low population abundance as indicated by local density levels. Severe declines in abundance (greater than 90 percent) have occurred at the majority (76 percent) of long-term monitoring study sites, including all sites in southern California (Tissot, 2007). The high risk to abundance is attributable to population densities below the minimum threshold density necessary for successful fertilization (0.75 - 1.1 m −2 ). Additionally, this factor contributes significantly to long-term risk of extinction, and, coupled with low spatial connectivity between populations (i.e., making recolonization unlikely) and the ongoing activity and expansion of withering syndrome, is likely to contribute to short-term risk of extinction in the foreseeable future. The majority of the SRT concluded that there is a very high risk of black abalone extinction due to low growth and productivity. Population growth is negative in all areas south of Cayucos, California, except for two locations in the southern California Islands. Furthermore, all sites south of Cayucos, but for the two isolated island locations, have exhibited recruitment failure because of local densities below the minimum threshold for successful fertilization. This high level of risk due to poor growth rate and productivity, by itself, likely indicates a high risk of extinction in the near future. The majority of the SRT concluded that black abalone are at high to very high risk because of compromised spatial structure and population connectivity. Dispersion data among local populations indicates that there is poor connectivity among populations. Such limited connectivity reduces the likelihood that disease resistance to withering syndrome, if it exists, will spread to other populations. Furthermore, the poor connectivity among populations makes it unlikely that populations extirpated by disease or catastrophic events will be recolonized in the foreseeable future. The SRT unanimously concluded that black abalone are at high extinction risk because of low genetic diversity. Genetic diversity in a population is determined by estimating the number of possible alleles that may exist at gene loci. Genetic diversity provides a mechanism for populations to adapt to their changing environment. Thus, the more genetic variation in a population, the better the chance that at least some individuals will have the capability to adapt to a new environment and will be able to pass this capability on to subsequent generations. Loss of genetic diversity in populations may occur because of factors that cause a major reduction in abundance and/or isolate a subset of individuals from the rest of the population. Genetic diversity has likely declined in black abalone populations because of catastrophic losses that the species has experienced throughout a large part of its range. As a result, populations have become small and more isolated, exacerbating the effects of naturally occurring low exchange rates between populations because of limited larval dispersal. Overfishing and disease have contributed to the loss of genetic diversity within black abalone populations, and, as a result, the ability of extant (i.e., currently existing) black abalone populations to exhibit resilience in the face of other threats, such as other diseases, has been compromised. Low genetic diversity, in combination with low spatial connectivity between populations, suggests that even if some genetic resiliency exists locally, it is not likely to spread and establish itself in other extant populations. Population Modeling: Geographic Spread of Disease vs. Disease Resistance VanBlaricom *et al.*

(2007)calculated the probability of extinction with time using a simple formula that accounts for the main threat that black abalone faces, withering syndrome. The probability of extinction is considered as a function of two parameters (R=the probability that the northward spread of withering syndrome will cease very soon and S=the probability that resistance will emerge very soon on a large spatial scale in the host), using the logic that if withering syndrome alone results in a high enough risk of extinction in a short time (i.e., 30 years-the expected life span of black abalone), then that may suffice to evaluate whether the species is in danger of extinction currently or in the foreseeable future. Assuming R and S are independent, the overall probability of functional extinction (i.e., the reproductive potential of isolated survivors is zero and no viable populations remain) in 30 years based on the SRT members' best professional judgment was 95.7 percent. The collective view of the SRT is that the risk is at a level where functional extinction without active management has a very high likelihood of occurring. This probability should not be interpreted as a prediction of the demise of the last individual black abalone within 30 years. Summary of Factors Affecting the Species According to Section 4 of the ESA, the Secretary of Commerce determines whether a species is threatened or endangered because of any (or a combination) of the following factors: the present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; or other natural or man-made factors affecting its continued existence. We examined these factors for their historic, current, and/or potential impact on black abalone and considered them, along with current species distribution and abundance, to help determine the species' present vulnerability to extinction. Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range Most of the threats that result in substrate destruction, such as coastal development, recreational access, cable repairs, nearshore military operations and benthic community shifts, occur infrequently, have a narrow geographic scope, or have uncertain or indirect effects on black abalone. Some exceptions may exist in the cases of sedimentation and sea level rise in that these threats have the potential to produce more widespread impacts, but the certainty that these factors will affect black abalone is low. For example, sea level rise may result in loss of suitable habitat in a preferred depth range because of increased erosion, turbidity, and siltation, but we currently lack information to determine whether these habitat changes will be important factors for further decline. Suboptimal water temperatures are likely to have contributed to the decline of black abalone and pose a serious threat to the ability of the species to persist because elevated water temperatures are correlated with accelerated rates of withering syndrome transmission and disease-induced mortality. Water temperatures can become elevated because of anthropogenic sources of thermal effluent and long-and short-term climate change (e.g., global climate change and El Nino - Southern Oscillation). For example, discharge from the Diablo Canyon nuclear power plant in San Luis Obispo County, California and recent El Nino - Southern Oscillation oceanographic events in the Pacific Ocean have produced short-term periods of ocean warming and are associated with increased rates of mortality due to withering syndrome over relatively small spatial scales. Although there is no explicitly documented causal link between the existence of withering syndrome and global climate change, patterns observed over the past 3 decades suggest that progression of ocean warming associated with large-scale climate change may facilitate further and more prolonged vulnerability of black abalone to effects of withering syndrome. Finally, we view the severity, geographic scope, and level of certainty that black abalone are affected by reduced food quality and quantity as being relatively low compared to other factors. Davis *et al.*

(1992)posited that a key consequence of kelp forest ecosystem disruption, due to a variety of reasons such as El Nino events, was reduced food supply for black abalone. Although reductions in kelp abundance occurred in the early 1980s, subsequent studies (e.g., Friedman *et al.* , 1997) have suggested that reduced food supply probably did not trigger the mass mortalities caused by withering syndrome. Kelp abundances had recovered from El Nino effects in southern California by the time withering syndrome was first observed in 1985, and the abundant black abalone populations at San Nicolas Island showed no response in density to the 1982-1984 El Nino disturbances, despite dramatic reductions in kelp abundance near the Island (VanBlaricom, 1993). Thus, this factor has likely not played an important role in the overall decline of the species, and, unless new information surfaces, this factor is not believed to pose a significant threat in the future. Overutilization for Commercial, Recreational, Scientific or Educational Purposes Throughout most of the species' range, local densities are below the critical threshold density required for successful spawning and recruitment. This predicament has occurred because of mass mortalities due to withering syndrome (see Disease or Predation below) and overutilization for commercial and recreational purposes (i.e., prior to the fishery closure in 1993). Data from abalone fisheries in California and Baja California, Mexico, indicate a decline in landings of at least 93 percent during the 1990s. These reductions, however, may not be indicative of declines due only to fishing activities because mass mortalities caused by withering syndrome had begun in many locations at approximately the same time. Rogers-Bennett *et al.*

(2002)estimate that the California abalone fisheries may have contributed up to 99 percent of the reduction in black abalone abundance in the United States (see Abundance section above). Thus, the estimated take of 3.5 million black abalone during commercial and recreational abalone fishing likely contributed to the decline of local densities. This threat no longer exists in California because the black abalone fisheries were closed in 1993. The limited information we have from Mexico makes it difficult to ascertain the relative importance of fishing to overall species decline. Disease or Predation Withering syndrome in black abalone is caused by a *Rickettsia* -like prokaryotic organism, *Candidatus* Xenohaliotis californiensis' (Gardner *et al.* , 1995; Friedman *et al.* , 1997; Friedman *et al.* , 2000; Friedman *et al.* , 2002). *Candidatus* Xenohaliotis californiensis (hereafter “abalone rickettsia”) occurs in epithelial cells of the gastrointestinal tract. Infected symptomatic animals are unable to transfer digested food materials from the gut lumen into the epithelial cells and beyond, resulting in malnutrition, dramatic loss of tissue mass, and eventual death. Physiological manifestations of withering syndrome include reduced food intake and oxygen consumption, and increased ammonia excretion (Kismohandaka *et al.* , 1993). The same pathogen is known to cause symptoms of withering syndrome in red abalone, and mortality rate is positively associated with water temperature in both red and black abalone (Moore *et al.* , 2000a, b; Vilchis *et al.* , 2005). Andree *et al.*

(2000)have developed a rapid DNA-based test for the pathogen that causes withering syndrome, allowing detection of infections prior to onset of clinical symptoms in both black and red abalone. Moore *et al.*

(2001)have developed a histological method for rapid quantification of the intensity of infections by the pathogen that causes withering syndrome. In wild animals symptomatic for withering syndrome, weakness resulting from the disease may cause the individual to lose the typically secure grip on the rocky substratum in response to wave impacts, allowing attack by predators or scavengers before the individual succumbs to the disease itself. Transfer of pathogens from animal to animal is fecal to oral on a local scale, and is therefore likely facilitated by aggregation of abalone in natural habitats. Transmission pathways on large spatial scales are entirely unknown at present. The pathogen for withering syndrome is now reported to be endemic to all the coastal marine waters of central (Friedman and Finley, 2003) and southern California (Moore *et al.* , 2002) south of San Francisco. Information from Isla de Cedros and Islas San Benito, Baja California, Mexico, on pink (Haliotis corrugata Wood, 1828; termed “yellow” in Mexico) and green (termed “blue” in Mexico) abalone indicated the presence of abalone symptomatic for withering syndrome, and the presence of abalone rickettsia in tissue samples, for both species (Tinajero *et al.* , 2002). Recent data indicate the presence of abalone rickettsia in farmed and wild green ormer ( *Haliotis tuberculata* ) symptomatic for withering syndrome at a number of locations in the coastal marine waters of western Europe (Balseiro *et al.* , 2006). Evidence of effects of withering syndrome on black abalone was first noticed along the south shore of Santa Cruz Island in 1985, when a fisherman noticed a large number of dying black abalone and empty shells (Lafferty and Kuris, 1993). The primary symptoms of disease noted at the time included pedal atrophy and a diminished ability to maintain a grip on rocky substrata. Haaker *et al.*

(1992)and Richards and Davis

(1993)described the first observations of mass mortalities of black abalone in previously monitored populations on the island shores of Channel Islands National Park in 1986, and broadened the list of recognized symptoms to include epipodial and mantle discoloration, and lack of response to tactile stimulation. Haaker *et al.*

(1992)were the first authors to apply the term “withering syndrome” to the suite of symptoms and consequent mass mortalities observed in the field. Between 1985 and 1992, mass mortalities occurred at San Miguel, Santa Rosa, Anacapa, Santa Barbara, and San Clemente Islands, in all cases with symptoms indicating withering syndrome (Davis *et al.* , 1992; Haaker *et al.* , 1992; Lafferty and Kuris, 1993; Richards and Davis, 1993). Evidence of withering syndrome was first seen at San Nicolas Island in spring 1992 (VanBlaricom *et al.* , 1993) and was followed by widespread mass mortalities at the Island in the middle 1990s (Tissot, 2007). The delayed appearance of withering syndrome at San Nicolas Island, as compared to the other southern California Islands, remains unexplained but may have reflected patterns of dispersal by disease propagules. To our knowledge, no effort has been made to assess effects of withering syndrome at Santa Catalina Island, though the Island historically supported black abalone populations. The first reported occurrence of significant numbers of black abalone with symptoms of withering syndrome on the California mainland was in San Luis Obispo County in 1988 (Steinbeck *et al.* , 1992). Afflicted animals were found primarily within Diablo Cove, which receives warmed effluent seawater from the cooling system of a nearby nuclear power plant. A mass mortality of black abalone occurred at the site between 1988 and 1989, with mortality rates correlating well to local patterns of sea temperature elevation associated with power plant effluent. Since the mid-1990s withering syndrome has appeared sequentially in progressively more northward populations of black abalone on the mainland California coast (Altstatt *et al.* , 1996; Raimondi *et al.* , 2002; Miner *et al.* , 2006). The most recent observations available suggest that significant mortalities of black abalone associated with withering syndrome have occurred at least as far north as Pt. Piedras Blancas in northern San Luis Obispo County near San Simeon. Surveys for the microorganism responsible for withering syndrome have found positive results as far north as San Francisco (Finley and Friedman, 2000; Friedman and Finley, 2003). In the vast majority of cases where long-term monitoring data are available, the appearance of animals symptomatic for withering syndrome in a population lead inevitably to rapid and dramatic declines in population size, most often in excess of 90 percent (Tissot, 2007). The pattern has been documented for black abalone populations throughout the range in California. Reports indicate similar trends for black abalone populations in Mexico. As noted earlier, the exceptions are at San Miguel Island, where rates of decline at some long-term study sites have been atypically slow, and at one location each on Santa Cruz and San Nicolas islands. At Santa Cruz Island, a recruitment event in 2004 at Willows Anchorage produced an increase in local densities that persisted at least until this writing. At San Nicolas Island, black abalone numbers at study site 8 (as described by VanBlaricom, 1993) have increased and experienced recruitment each year since reaching a low point in 2001 due to withering syndrome, except for a small decline between surveys in 2006 and 2007. The pattern at this site can be plausibly interpreted as a possible result of genetically-based disease resistance on a local scale. These observations are exceptions that suggest the potential for resilience and recovery in populations reduced dramatically by withering syndrome. However, Tissot's

(2007)litany of negative impacts of withering syndrome in multiple locations across the entire range of the species, coupled with evidence of increasing geographic scope of impact, argues to the contrary. The preponderance of evidence indicates that withering syndrome continues to damage the size and sustainability of black abalone populations on a large scale, with little plausible basis for any predictions of reversal. Prior to the appearance of withering syndrome there was little evidence of significant diseases in black abalone (Haaker *et al.* , 1992). There is now substantial concern among scientists and marine resource managers about the emergence of virulent diseases in marine organisms on a global scale, in association with ocean warming in recent decades (e.g., Harvell *et al.* , 1999; Harvell *et al.* , 2002). Recent surveys of the literature suggest that the frequency of reporting of new diseases has increased for several major marine taxa, including mollusks (e.g., Ward and Lafferty, 2004). The appearance of withering syndrome is consistent with the reported pattern. As described above, mortality rates associated with withering syndrome often correlate to positive anomalies in sea surface temperature. Nevertheless, there is no explicitly documented causal link between the existence of withering syndrome and global climate change. We conclude that withering syndrome has been and continues to be the primary threat contributing to the decline of black abalone. The disease has caused mass mortality and near extirpation of populations throughout most of the species' range, and the disease continues to spread to populations in Monterey County and to the north. The rate at which the disease is spreading northward will likely be exacerbated by suboptimal (i.e., warmer) water temperatures that may result due to a variety of factors. Abalone face non-anthropogenic predatory pressure from a number of consumer species such as gastropods, octopuses, lobsters, sea stars, fishes and sea otters (Ault, 1985; Estes and VanBlaricom, 1985; Shepherd and Breen, 1992). At San Nicolas Island, VanBlaricom (unpublished observations) has observed directed predation on black abalone in rocky intertidal habitats by the ochre star *Pisaster ochraceus* [Brandt, 1835]), the octopus *Octopus bimaculatus* (Verrill, 1883), a large cottid fish, the cabezon ( *Scorpaenichthys marmoratus* Girard, 1854), and a shorebird, the black oystercatcher *Haematopus bachmani* Audubon, 1838. In addition, VanBlaricom (unpublished observations) has observed ingestion of small black abalone by three taxa normally viewed as herbivores: the lined shore crab *Pachygrapsus crassipes* (Randall, 1839); the purple sea urchin *Strongylocentrotus purpuratus* (Stimpson, 1857); and the turban snails Tegula spp. Despite the large number of identified predators on abalone, we are aware of no studies that estimate mortality rates of black abalone in association with the predator species that have been identified. While the effects of sea otter predation on red abalone are well documented, there are few data available to evaluate relationships of sea otters with other species of abalone in California. Given that black abalone overlap in habitat use, size distributions, and ecological attributes with red abalone is limited, the relationship between sea otters and black abalone is uncertain. Sea otters are known to feed on black abalone, but the quantitative ecological strength of the interaction has not been directly investigated and remains poorly known. Black abalone have been exposed to varying predation pressure through time, and this pressure is likely to continue. However, in the past, black abalone populations were much more robust and able to absorb losses due to predation without compromising viability. Now that the few remaining populations are smaller, more isolated, and still declining throughout the range, predation may pose risk to the future survival of the species. In addition, non-anthropogenic predation could limit the effectiveness of future recovery efforts by interacting with other limiting factors. Inadequate Regulatory Mechanisms There is evidence suggesting that aquaculture operations have provided a pathway for the spread of withering syndrome, and, unless the industry is carefully regulated in the future, may continue to do so. Past State and Federal regulations were not adequate to prevent the spread of the disease within and outside the United States through importation of infected animals from one aquaculture facility to another and outplanting of infected animals from aquaculture facilities to the wild. It is through the latter pathway that abalone rickettsia may have been introduced to two healthy populations of black abalone north of San Francisco (Friedman and Finley, 2003), placing those populations at higher risk of extinction. Recent state regulations to carefully monitor the health of abalone at aquaculture facilities and control the importation/exportation of abalone between facilities will likely reduce the threat that the aquaculture industry poses in the future. Currently, the state monitors aquaculture facilities for introduced organisms and disease on a regular basis. There is also a restriction on out-planting of abalone from facilities which have not met certification standards. If new state regulations to carefully monitor aquaculture facilities are effective, the future threat that they pose to black abalone will be limited. In fact, aquaculture may emerge as being an important, and possibly the only effective recovery tool, for restoring black abalone populations through captive propagation and enhancement efforts. Purposeful illegal harvest, typically termed poaching, has been a source of mortality for black abalone throughout their range since the establishment of harvesting regulations by the State of California. The chronic virtual absence of black abalone populations from highly accessible intertidal habitats near human population centers in California during the twentieth century can plausibly be viewed as evidence for the importance of poaching as a source of abalone mortality. Since the closure of the California black abalone fishery in 1993, a number of black abalone poaching cases along the California mainland coast, particularly in the northern portion of the black abalone's geographic range, have been documented by the California Department of Fish and Game

(CDFG)from 1993-2003 (Taniguchi, unpublished data). Some of these cases resulted in well-publicized arrests and trials of black abalone poachers. These events often involved removals of tens to hundreds of abalone, across all size categories present in the exploited populations, and without regard to harvest size limits in effect prior to commercial and recreational fishery closures. Enforcement effort has varied over the 10-year time period (1993-2003), increasing in 2000 because of coordinated efforts between CDFG marine and coastal regions and planned overflights along the Central California coast during low tides. CDFG wardens approximate that 80 percent of seized abalone were returned alive to the wild, but these animals were not monitored for long-term survival, and thus, these data are of limited use for calculating poaching-induced mortality estimates. The problem of poaching persists, and there is no evidence that existing regulatory mechanisms have effectively reduced the risks posed by illegal take. Inadequate regulatory mechanisms are likely to have contributed to the decline of black abalone and pose a serious threat to the ability of the species to recover. Other Natural or Man-made Factors Environmental pollutants and toxins are likely present in areas where black abalone have occurred and still do occur, but evidence suggesting causal and/or indirect negative effects on black abalone due to exposure to pollutants or toxins is lacking. Before a causal link between the bacteria that causes withering syndrome and mass mortalities of black abalone was established, efforts were made to link mass mortalities to pollutant concentrations (Gardner *et al.* , 1995); however, no link could be identified. There is one instance of abalone mortality associated with a pollution event, described by Martin *et al.* (1977). Toxic levels of copper in the cooling water effluent of the Diablo Canyon nuclear power plant were associated with abalone mortalities in a nearshore cove that received significant effluent flows. Growth and reproduction of black abalone were reported to have been impaired on the Palos Verdes Peninsula (Los Angeles County, California) in the late 1950s and early 1960s, in association with apparent combined effects of a significant El Nino event and poor water quality resulting from large-volume domestic sewage discharge by Los Angeles County (Leighton, 1959; Cox, 1962; Young, 1964; Miller and Lawrenz-Miller, 1993). There is ongoing concern that accidentally spilled oil from offshore drilling platforms or various types of commercial vessels could occur near shore in California and could affect a significant proportion of black abalone habitat; however, at this time we are uncertain how such an event would impact the species' overall status. The overall risk that environmental pollutants and toxins have posed is probably low, given their limited geographic scope and uncertain effects on black abalone; however, a single event in the future, depending on where it occurs, could irreparably damage the few remaining viable populations of black abalone. SRT Assessment of Overall Extinction Risk The SRT's analysis of overall risk to black abalone used categories that correspond to definitions in the ESA: in danger of extinction; likely to become endangered in the foreseeable future; or neither. The overall extinction risk assessment reflected informed professional judgment by each SRT member. This assessment was guided by integrating information about demographic risks, a consideration of the interactions among these risks, population projections over the next 30 years (i.e., time span approximating the average black abalone life span and a reasonable horizon for projecting current conditions into the future), as well as threats and other factors affecting black abalone. The SRT concluded unanimously that black abalone is in danger of extinction throughout all of its range. The spread of withering syndrome poses imminent and significant risk to the species and exacerbates the high levels of demographic risk to which black abalone are subject, including extremely low local densities, low levels of growth and productivity, limited spatial structure and connectivity, and loss of genetic diversity. In addition, the SRT estimated that there is approximately a 96-percent probability that black abalone will suffer functional extinction within the next 30 years. Consideration of “Significant Portion of Its Range” Because we conclude that black abalone is in danger of extinction throughout all of its range, it is not necessary for us to consider the question of whether black abalone is at risk throughout a significant portion of its range. Efforts Being Made to Protect the Species Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce to make listing determinations solely on the basis of the best scientific and commercial data available after taking into account efforts being made to protect a species. Therefore, in making a listing determination, we first assess a species' level of extinction risk and identify factors that have led to its decline. We then assess existing efforts being made to protect the species to determine if those measures ameliorate the risks. In judging the efficacy of existing protective efforts, we rely on the joint NMFS-U.S. Fish and Wildlife Service

(FWS)“Policy for Evaluation of Conservation Efforts When Making Listing Decisions” (“PECE;” 68 FR 15100; March 28, 2003). PECE provides direction for the consideration of protective efforts identified in conservation agreements, conservation plans, management plans, or similar documents (developed by Federal agencies, state and local governments, Tribal governments, businesses, organizations, and individuals) that have not yet been implemented, or have been implemented but have not yet demonstrated effectiveness. The policy articulates several criteria for evaluating the certainty of implementation and effectiveness of protective efforts to aid in determining whether a species should be listed as threatened or endangered. Evaluations of the certainty an effort will be implemented include whether: the necessary resources (e.g., funding and staffing) are available; the requisite agreements have been formalized such that the necessary authority and regulatory mechanisms are in place; there is a schedule for completion and evaluation of the stated objectives; and (for voluntary efforts) the necessary incentives are in place to ensure adequate participation. The evaluation of the certainty of an effort's effectiveness is made on the basis of whether the effort or plan: establishes specific conservation objectives; identifies the necessary steps to reduce threats or factors for decline; includes quantifiable performance measures for the monitoring of compliance and effectiveness; incorporates the principles of adaptive management; and is likely to improve the species' viability at the time of the listing determination. PECE also notes several important caveats. Satisfaction of the above mentioned criteria for implementation and effectiveness establishes a given protective effort as a candidate for consideration, but does not mean that an effort will ultimately change the risk assessment. The policy stresses that just as listing determinations must be based on the viability of the species at the time of review, so they must be based on the state of protective efforts at the time of the listing determination. PECE does not provide explicit guidance on how protective efforts affecting only a portion of a species' range may affect a listing determination, other than to say that such efforts will be evaluated in the context of other efforts being made and the species' overall viability. There are circumstances where threats are so imminent, widespread, and/or complex that it may be impossible for any agreement or plan to include sufficient efforts to result in a determination that listing is not warranted. Conservation measures that may apply to listed species include conservation measures implemented by tribes, states, foreign nations, local governments, and private organizations. Also, Federal, tribal, state, and foreign nations' recovery actions (16 U.S.C. 1533(f)), Federal consultation requirements (16 U.S.C. 1536), and prohibitions on taking (16 U.S.C. 1538) constitute conservation measures. In addition, recognition through Federal or state listing promotes public awareness and conservation actions by Federal, state, tribal governments, foreign nations, private organizations, and individuals. As evaluated pursuant to PECE, the protective efforts described below do not as yet, individually or collectively, provide sufficient certainty of implementation and effectiveness to counter the extinction risk assessment conclusion that the species is in danger of extinction throughout its range. National Marine Fisheries Service- Species of Concern Program Black abalone was added to NMFS' Candidate Species list on June 23, 1999 (64 FR 33466). The NMFS' Candidate Species List was revised and redefined and the NMFS' Species of Concern List was created on April 15, 2004 (69 FR 19975). Species of Concern are those species about which we have some concerns regarding status and threats, but for which insufficient information is available to indicate a need to list the species under the ESA. On October 17, 2006 (71 FR 61021), we formally announced initiation of a black abalone status review and at that time the species became a Candidate Species. Candidate Species are those petitioned species that are actively being considered for listing as endangered or threatened under the ESA, as well as those species for which we have initiated an ESA status review that has been announced in the **Federal Register** . Neither “Candidate Species” nor “Species of Concern” designations carry any procedural or substantive protections under the ESA, and thus, no federal measures that provide protection for black abalone are currently in place. National Marine Sanctuaries Program Three coastal national marine sanctuaries in California contain intertidal habitat suitable for black abalone: Channel Islands National Marine Sanctuary (CINMS), Monterey Bay National Marine Sanctuary (MBNMS), and Gulf of the Farallones National Marine Sanctuary (GFNMS). These sanctuary sites, administered by the National Oceanic and Atmospheric Administration, are protected by federal regulations pursuant to the National Marine Sanctuaries Act of 1972 as amended (16 U.S.C. 1431 *et seq.* ). The regulations, which are similar at all three sites, provide protection against some of the threats to black abalone. At all three sanctuaries, the inshore boundary extends to the mean high water line, thus encompassing intertidal habitat. Direct disturbance to or development of black abalone intertidal habitat is regulated at all three national marine sanctuaries by way of a prohibition on the alteration of, construction upon, drilling into, or dredging of the seabed (including the intertidal zone), with exceptions for anchoring, installing navigation aids, special dredge disposal sites (MBNMS only), harbor-related maintenance, and bottom tending fishing gear in areas not otherwise restricted. Water quality impacts to black abalone habitat are regulated by strict discharge regulations at all three national marine sanctuaries. Essentially, regulations provide that no discharge or deposit of pollutants is allowed within these sanctuaries, except for effluents required for normal boating operations (e.g., vessel cooling waters, effluents from marine sanitation devices, fish wastes and bait). Although these national marine sanctuaries do not regulate the take of black abalone, networks of marine reserves and marine conservation areas have been established by the CDFG within the CINMS and along portions of the MBNMS. Within these areas, especially within CINMS where the protected areas have been in place since 2003 and are within the Channel Islands National Park, multi-agency patrols provide elevated levels of enforcement presence and increase protection against poaching of black abalone. Full texts of the current CINMS, MBNMS and GFNMS regulations discussed above can be found at 15 Code of Federal Regulations (CFR), parts 922.71, 922.132, and 922.91, respectively. However, all of these sanctuary sites are currently undergoing management plan review processes, which include reviews of and updates to the regulations. Although the regulations may be modified, the level of protection provided to black abalone is not expected to decrease from that described above, and possibly may increase should proposed prohibitions be adopted for the release of introduced species, and should stricter regulations be adopted regarding large vessel discharges. In summary, while the Sanctuary regulations provide protection against some of the threats to black abalone and this level of protection may increase if new management plans are adopted, these regulations are unlikely to stop the progression of withering syndrome in the near future. At best, they may help slow down the rate at which the disease is progressing. State/Local Programs The depleted condition of abalone resources prompted the California Fish and Game Commission to eventually close all abalone fisheries south of San Francisco by 1997, beginning with the black abalone fishery in 1993. The southern abalone fishery was closed indefinitely with the passage of the Thompson bill (AB 663) in 1997. This bill created a moratorium on taking, possessing, or landing abalone for commercial or recreational purposes in ocean waters south of San Francisco, including all offshore islands. The Thompson bill also mandated the creation of an Abalone Recovery and Management Plan

(ARMP)which was finalized in December 2005. The bill further required the Fish and Game Commission to undertake abalone management in a manner consistent with the ARMP. The CDFG's ARMP provides a cohesive framework for the recovery of depleted abalone populations in southern California, and for the management of the northern California fishery and future fisheries. All of California's abalone species are included in this plan: red, green, pink, white ( *Haliotis sorenseni* Bartsch, 1940), pinto ( *H. kamtschatkana* Jonas, 1845, including *H.k. assimilis* ), black, and flat abalone ( *H. walallensis* Stearns, 1899). The plan also refers to a state aquaculture facility monitoring program that aims to ensure that aquaculture facilities in California will not facilitate transmission of disease and/or invasive/exotic species within or outside the State. Abalone in California vary in status from populations bordering on extinction (white abalone) to a sustainable population with a margin of harvestable animals that is still being fished (northern California red abalone). Recovery of at-risk abalone species and management of abalone fisheries are separate but continuous and complementary processes in the ARMP. The recovery portion of the plan addresses all abalone species that are subject to the fishing moratorium. The management portion of the plan applies to populations considered sustainable and fishable, such as the current northern California red abalone fishery. The ultimate goal of recovery is to move species from a perilous condition to a sustainable one with a margin of abalone available for fishing. The ultimate goal of management is to maintain sustainable fisheries under a long-term management plan that can be adapted quickly to respond to environmental or population changes. The ARMP provides a mechanism for helping to slow the progression of disease and invasive/exotic species through better monitoring of aquaculture facilities, however, this effort may only make a relatively small difference to the threat that disease poses given that spread of withering syndrome is due largely to factors other than aquaculture operations. The ARMP also provides a framework for restoring black abalone populations through translocation and captive propagation and enhancement programs; however, detailed plans and methodologies have neither been drafted nor tested and therefore their effectiveness for conserving black abalone remains uncertain. International Programs The World Conservation Union

(IUCN)publishes a Red List of species that are at high risk of extinction and, when data are sufficient, categorizes species as either Extinct (EX), Extinct in the Wild (EW), Critically Endangered (CR), Endangered (EN), Vulnerable (VU), Near Threatened (NT), or of Least Concern

(LC)(IUCN, 2001). In 2003 the IUCN, based on an assessment by Smith *et al.* (2003), placed black abalone on the Red List as Critically Endangered under criterion A4e. Under criterion A4, a species may be classified as Critically Endangered, Endangered, or Vulnerable when its population size, measured over the longer of 10 years or three generations, has declined greater than or equal to 80, 50, or 30 percent respectively, due to an “observed, estimated, inferred, projected or suspected population reduction (up to a maximum of 100 years) where the time period must include both the past and the future, and where the causes of reduction may not have ceased or may not be understood or may not be reversible, based on direct observation, an index of abundance appropriate to the taxon, a decline in area of occupancy, extent of occurrence and/or quality of habitat, actual or potential levels of exploitation, or the effects of introduced taxa, hybridization, pathogens, pollutants, competitors or parasites” (IUCN, 2006, p. 10). Inclusion on the IUCN Red List does not necessarily convey any regulatory protection for black abalone. Proposed Determinations Section 4(b)(1) of the ESA requires that the listing determination be based solely on the best scientific and commercial data available, after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any state or foreign nation to protect and conserve the species. We have reviewed the petition, the draft status report, and other available published and unpublished information, and have consulted with species experts and other individuals familiar with black abalone. On the basis of the best available scientific and commercial information, we conclude that black abalone is presently in danger of extinction throughout all of its range and should be added to the list of federally endangered species. The major risks that black abalone face include:

(1)the spread of a disease called withering syndrome;

(2)low adult densities below the critical threshold density required for successful spawning and recruitment;

(3)suboptimal water temperatures that have accelerated the spread of withering syndrome;

(4)reduced genetic diversity that will render extant populations less capable of dealing with both long- and short-term environmental or anthropogenic challenges; and

(5)illegal harvest of black abalone. The principal threat to black abalone is withering syndrome, which has caused mass mortality and near extirpation of populations in the recent past and threatens extant populations. The spread of withering syndrome threatens the species with a very high probability (96 percent) of extinction within the next 30 years. This threat is unlikely to be ameliorated by current conservation efforts. Service Policies on Endangered and Threatened Fish and Wildlife On July 1, 1994, NMFS and FWS published a series of policies regarding listings under the ESA, including a policy for peer review of scientific data (59 FR 34270) and a policy to identify, to the maximum extent possible, those activities that would or would not constitute a violation of section 9 of the ESA (59 FR 34272). Role of Peer Review The intent of the 1994 peer review policy is to ensure that listings are based on the best scientific and commercial data available. Prior to a final listing, we will solicit the expert opinions of at least three qualified specialists, concurrent with the public comment period. Independent specialists will be selected from the academic and scientific community, Federal and state agencies, and the private sector. In December 2004, the Office of Management and Budget

(OMB)issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Public Law 106-554), is intended to enhance the quality and credibility of the Federal Government's scientific information, and applies to influential or highly influential scientific information disseminated on or after June 16, 2005. To satisfy our requirements under the OMB Bulletin, we are obtaining independent peer review of the draft status review report, which supports this proposal to list black abalone as endangered; all peer reviewer comments will be addressed prior to dissemination of the final report and publication of the final rule. Identification of Activities That Would Constitute a Violation of Section 9 of the ESA The intent of the policy requiring us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the ESA, is to increase public awareness of the effect of listings on proposed and ongoing activities within the species' range. Section 9 of the ESA prohibits certain activities (e.g., importation, exportation, take, sale, and delivery) that directly or indirectly affect endangered species. These prohibitions apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. Section 7(a)(2) of the ESA requires Federal agencies to consult with NMFS to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or to destroy or adversely modify critical habitat. Under Section 7(a)(4), Federal agencies must confer with us on any of these activities to ensure that any such activity is not likely to jeopardize the continued existence of a species proposed for listing or destroy or adversely modify proposed critical habitat. Examples of Federal actions that may affect black abalone include permits and authorizations relating to coastal development and habitat alteration, oil and gas development, military operations, coastal power plant operations, toxic waste and other pollutant discharges, and aquaculture operations. Sections 10(a)(1)(A) and

(B)of the ESA authorize NMFS to grant exceptions to the ESA's Section 9 take prohibitions. Section 10(a)(1)(A) scientific research and enhancement permits may be issued to entities (Federal and non-federal) for scientific purposes or to enhance the propagation or survival of a listed species. Activities potentially requiring a section 10(a)(1)(A) research/enhancement permit if black abalone are listed include scientific research that targets black abalone. Under section 10(a)(1)(B), the Secretary may permit takings otherwise prohibited by section 9(a)(1)(B) if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity, provided that the requirements of section 10(a)(2) are met. Critical Habitat Critical habitat is defined in section 3 of the ESA as:

(i)the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features

(I)essential to the conservation of the species and

(II)which may require special management considerations or protection; and

(ii)specific areas outside the geographical area occupied by the species at the time it is listed upon a determination that such areas are essential for the conservation of the species (16 U.S.C. 1532(5)(A)). “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary (16 U.S.C. 1532(3)). Section 4(a)(3)(A) of the ESA requires that, to the maximum extent prudent and determinable, critical habitat be designated concurrently with the listing of a species (16 U.S.C. 1533(a)(3)(A)(i)). Designations of critical habitat must be based on the best scientific data available and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat. Once critical habitat is designated, section 7 of the ESA requires Federal agencies to ensure that they do not fund, authorize or carry out any actions that are likely to destroy or adversely modify that habitat. This requirement is in addition to the section 7 requirement that Federal agencies ensure that their actions do not jeopardize the continued existence of listed species. We are currently considering a proposal to designate critical habitat for black abalone, but at this time a designation is not determinable because:

(1)we currently lack information sufficient to perform required analyses of the impacts of the designation; and

(2)the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. Thus, we are seeking public input to assist in gathering and analyzing the best available scientific data and other information to support a critical habitat designation, which will be proposed in a subsequent **Federal Register** notice. We will continue to meet with co-managers and other stakeholders to review this information and the overall designation process. Joint NMFS/FWS regulations for listing endangered and threatened species and designating critical habitat at section 50 CFR 424.12(b) state that the agency “shall consider those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection” (hereafter also referred to as “essential features”). Pursuant to the regulations, such requirements include, but are not limited to the following:

(1)space for individual and population growth, and for normal behavior;

(2)food, water, air, light, minerals, or other nutritional or physiological requirements;

(3)cover or shelter;

(4)sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally;

(5)habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species. These regulations emphasize that the agency shall focus on essential features within the specific areas considered for designation. These features “may include, but are not limited to, the following: spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, geological formation, vegetation type, tide, and specific soil types.” Public Comments Solicited We have exercised our best professional judgment in developing this proposal to list black abalone. To ensure that the final action resulting from this proposal will be as accurate and effective as possible, we are soliciting comments and suggestions from the public, other governmental agencies, the scientific community, industry, and any other interested parties (See DATES and ADDRESSES ). Specifically, we are interested in information regarding:

(1)status of black abalone populations in the northern part of the range (north of Monterey County) and in Baja California, Mexico;

(2)current or planned activities within the range of black abalone and their possible impact on the species; and

(3)efforts being made to protect black abalone. We are also requesting quantitative evaluations describing the quality and extent of marine habitats for juvenile and adult black abalone as well as information on areas that may qualify as critical habitat for black abalone in California. Areas that include the physical and biological features essential to the recovery of the species should be identified. We recognize that there are areas within the proposed boundaries of black abalone that historically contained black abalone habitat, but may not be currently occupied by black abalone. For areas potentially qualifying as critical habitat, we are requesting information describing:

(1)the activities that affect the area or could be affected by the designation; and

(2)the economic costs and benefits of additional requirements or management measures likely to result from the designation. The economic cost to be considered in the critical habitat designation under the ESA is the probable economic impact “of the [critical habitat] designation upon proposed or ongoing activities” (50 CFR 424.19). Economic effects attributable to listing include actions resulting from section 7 consultations under the ESA to avoid jeopardy to the species and from the take prohibitions under section 9 of the ESA. Where possible, comments concerning economic impacts should distinguish the costs of listing from the incremental costs that can be directly attributed to the designation of specific areas as critical habitat. We will review all public comments and any additional information regarding the status of, and critical habitat for, black abalone in developing a final listing determination and a proposed critical habitat designation. Public Hearings If requested by the public by February 25, 2008, hearings will be held in several locations within the range of black abalone. If hearings are requested, details regarding locations, dates, and times will be published in a forthcoming **Federal Register** notice. References A complete list of all references cited herein is available upon request (see ADDRESSES section). Classification National Environmental Policy Act The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA). (See NOAA Administrative Order 216-6.) Executive Order 12866, Regulatory Flexibility Act and Paperwork Reduction Act As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this proposed rule is exempt from review under Executive Order 12866. This proposed rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act. Federalism In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, this proposed rule will be given to the relevant state agencies in each state in which the species is believed to occur, who will be invited to comment. NMFS has conferred with the State of California in the course of assessing the status of black abalone and considered, among other things, Federal, state and local conservation measures. As the process continues, we intend to continue engaging in informal and formal contacts with the States, and other affected local or regional entities, giving careful consideration to all written and oral comments received. List of Subjects in 50 CFR Part 224 Endangered and threatened species, Exports, Imports, Transportation. Dated: January 4, 2008. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 224 is proposed to be amended as follows: PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES 1. The authority citation of part 224 continues to read as follows: Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 *et seq.* 2. In § 224.101, paragraph

(d)is revised to read as follows: § 224.101 Enumeration of endangered marine and anadromous species.

(d)*Marine invertebrates.* The following table lists the common and scientific names of endangered species, the locations where they are listed, and the citations for the listings and critical habitat designations. Species 1 Common name Scientific name Where Listed Citation

(s)for Listing Determinations Citations

(s)for Critical Habitat Designations Black abalone *Haliotis cracherodii* USA, CA. From Crescent City, California, USA to Cape San Lucas, Baja California, Mexico, including all offshore islands. [FR CITATION WHEN PUBLISHED AS A FINAL RULE] N/A White abalone *Haliotis sorenseni* USA, CA. From Point Conception, California to Punta Abreojos, Baja California, Mexico including all offshore islands and banks. NOAA 2001; 66 FR 29054, May, 29, 2001. Deemed not prudent NOAA 2001; 66 FR 29054, May, 29, 2001. [FR Doc. E8-335 Filed 1-10-08; 8:45 am] BILLING CODE 3510-22-S 73 8 Friday, January 11, 2008 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request January 7, 2008. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding

(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;

(c)ways to enhance the quality, utility and clarity of the information to be collected;

(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax

(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling

(AMS)uses the data collected for grading and certification purposes and for hiring licensed samplers. The following forms are used by AMS for information collection: FV-159, *Application for Inspection of Unofficially Submitted Samples of Food Products,* the information collected is used to determine the purpose for which the inspection is desired for unofficially submitted samples. FV-356, *Application for Inspection and Certificate of Sampling,* the information is used to fill in the respondent's name and address, and to describe the containers, the location code marks and the number of containers in the lot. FV-468, *Application for License to Sample Processed Foods,* the information collected is used to hire prospective employees desiring to become licensed to sample processed foods and to certify as to the identification, location, kinds and condition of containers of processed products that are sampled. *Description of Respondents:* Business or other for-profit; Federal Government; State, Local or Tribal Government. *Number of Respondents:* 1,406. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 642. Agricultural Marketing Service *Title:* Organic Assessment Exemption under Commodity Research and Promotion Programs. *OMB Control Number:* 0581-0217. *Summary of Collection:* Under the 2002 Farm Bill, Section 501 of the Federal Agriculture Improvement and Reform Act of 1996 (FAIR Act) was amended on May 13, 2002. The FAIR Act amendment covers research and promotion programs established under the Commodity Promotion, Research, and Information Act of 1996 or freestanding legislation. Any person that produces and markets solely 100 percent organic products, and does not produce any conventional or non-organic products, is exempt from paying assessments. *Need and Use of the Information:* To be exempt from paying assessments, applicants must submit form AMS-15 to the applicable board or council prior to or during the initial applicable assessment period, and annually thereafter, as long as the applicant continues to be eligible for the exemption. The information collected will include name, company name, address, type of operation, list of commodities produced, a copy of the applicant's organic farm or organic handling operation certificate provided by a USDA-accredited certifying agent. *Description of Respondents:* Business or other for profit; Farms. *Number of Respondents:* 2,465. *Frequency of Responses:* Recordkeeping; Reporting: On occasion. *Total Burden Hours:* 1,233. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E8-309 Filed 1-10-08; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request January 8, 2008. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding

(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;

(c)ways to enhance the quality, utility and clarity of the information to be collected;

(202)720-8681. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Rural Housing Service *Title:* 7 CFR 1902-A, Supervised Bank Accounts. *OMB Control Number:* 0575-0158. *Summary of Collection:* 7 CFR 1902-A, Supervised Bank Accounts, prescribes the policies and procedures for disbursing loan and grant funds, establishing and closing supervised accounts, and placing Multi-Family housing reserve accounts in supervised accounts. Supervised accounts are accounts with a financial institution in the names of a borrower and the United States Government, represented by Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, or Farm Service Agency (Agency). Section 339 of the Consolidated Farm and Rural Development Act, 7 U.S.C. 1989 and Section 510 of the Housing Act of 1949, 42 U.S.C. 1480 are the legislative authority requiring the use of supervised accounts. *Need and Use of the Information:* The agency's state and field offices will collect information from borrowers and financial institutions and use the information to monitor compliance with agency regulations governing supervised accounts, such as establishing, maintaining, and withdrawing funds. In addition, the information will be used to ensure that the borrowers operate on a sound basis and use the loan and grant funds for authorized purposes. *Description of Respondents:* Business or other for-profit. *Number of Respondents:* 20,000. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 26,953. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E8-322 Filed 1-10-08; 8:45 am] BILLING CODE 3410--XT;P DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2007-0047] Codex Alimentarius Commission: Meeting of the Codex Committee on Natural Mineral Waters AGENCY: Office of the Under Secretary for Food Safety, USDA. ACTION: Notice of public meeting and request for comments. SUMMARY: The Office of the Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), and the Food and Drug Administration (FDA), U.S. Department of Health and Human Services (HHS), are sponsoring a public meeting on January 16, 2008. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States positions that will be discussed at the 8th Session of the Codex Committee on Natural Mineral Waters (CCNMW) of the Codex Alimentarius Commission (Codex), which will be held in Lugano, Switzerland on February 11-15, 2008. The Under Secretary for Food Safety and FDA recognize the importance of providing interested parties the opportunity to obtain background information on the 8th Session of the CCNMW and to address items that will be on the agenda. DATES: The public meeting is scheduled for Wednesday, January 16, 2008, from 9 a.m. to 12 noon. ADDRESSES: The public meeting will be held in Room 1A001, FDA, Center for Food Safety and Applied Nutrition (CFSAN), Harvey Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740. Codex documents related to the 8th Session of the CCNMW will be accessible via the World Wide Web at the following address: *http://www.codexalimentarius.net/current.asp.* The Acting U.S. Delegate to the CCNMW, Dr. Henry Kim, invites interested U.S. parties to submit their comments electronically to the following e-mail address: *henry.kim@fda.hhs.gov.* *Registration:* Register electronically to the same e-mail address above. Early registration is encouraged because it will expedite entry into the building and its parking area. If you require parking, please include the vehicle make and tag number, if known, when you register. Because the meeting will be held in a Federal building, you should also bring photo identification and plan for adequate time to pass through security screening systems. FOR FURTHER INFORMATION ABOUT THE 8th SESSION OF THE CCNMW CONTACT: Henry Kim, Acting U.S. Delegate to the CCNMW, Office of Food Safety, CFSAN, FDA, 5100 Paint Branch Parkway (HFS-317), College Park, MD 20740, Phone:

(301)436-2023, Fax:

(301)436-2651, e-mail: *henry.kim@fda.hhs.gov.* FOR FURTHER INFORMATION ABOUT THE PUBLIC MEETING CONTACT: Edith Kennard, Staff Officer, U.S. Codex Office, Food Safety and Inspection Service (FSIS), Room 4861, South Building, 1400 Independence Avenue, SW., Washington, DC 20250, Phone:

(202)720-5261, Fax:

(202)720-3157, e-mail: *edith.kennard@fsis.usda.gov* . SUPPLEMENTARY INFORMATION: Background The Codex Alimentarius Commission (Codex) was established in 1963 by two United Nations organizations, the Food and Agriculture Organization and the World Health Organization (WHO). Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure that fair practices are used in trade. The Codex Committee on Natural Mineral Waters (CCNMW) was established by the Commission as a regional Codex Committee, but has since been allocated the task of elaborating worldwide standards for natural mineral waters and bottled (packaged) water other than natural mineral water. The Committee is hosted by Switzerland. Issues To Be Discussed at the Public Meeting The following items will be discussed during the public meeting: • Matters Referred to the Committee by the Codex Alimentarius Commission and Other Codex Committees. • Consideration of the Health-Related Limits for Certain Substances in the Codex Standard on Natural Mineral Waters (CODEX STAN 108-1981). • Substances listed as having discrepancies that exist between the Codex Standard and the WHO Guidelines for Drinking Water Quality, 3rd edition (guideline values for chemicals of health significance). • Discrepancies between the Codex Standards and WHO Guidelines exist for —Antimony —Borate —Copper —Manganese —Nitrite —Mercury —Nickel Each item listed above will be fully described in documents distributed, or to be distributed, by the Swiss Secretariat prior to the February 11-15, 2008 meeting in Lugano, Switzerland. Members of the public may access copies of these documents at *http://www.codexalimentarius.net/current.asp.* Public Meeting At the January 16, 2008, public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to the Acting U.S. Delegate for the 8th Session of the CCNMW, Dr. Henry Kim, at *henry.kim@fda.hhs.gov.* Written comments should state that they relate to activities of the 8th Session of the CCNMW. Additional Public Notification Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it online through the FSIS Web page located at *http://www.fsis.usda.gov/regulations/2008_Notices_Index/.* FSIS will also make copies of this **Federal Register** publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, **Federal Register** notices, FSIS public meetings, and other types of information that could affect or would be of interest to constituents and stakeholders. The Update is communicated via Listserv, a free electronic mail subscription service for industry, trade groups, consumer interest groups, health professionals, and other individuals who have asked to be included. The Update is also available on the FSIS Web page. Through the Listserv and Web page, FSIS is able to provide information to a much broader and more diverse audience. In addition, FSIS offers an electronic mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at *http://www.fsis.usda.gov/news_and_events/email_subscription/* . Options range from recalls to export information to regulations, directives and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts. Done at Washington, DC, on January 7, 2008. Paulo Almeida, Acting U.S. Manager for Codex Alimentarius. [FR Doc. E8-310 Filed 1-10-08; 8:45 am] BILLING CODE 3410-DM-P DEPARTMENT OF AGRICULTURE Forest Service Nebraska Travel Management Rule Implementation Project; Nebraska National Forest, Nebraska and South Dakota AGENCY: Forest Service, USDA. ACTION: Notice; Intent to Prepare Environmental Impact Statement. SUMMARY: The purpose of the Nebraska Travel Management Rule Implementation project is to implement direction in the *Travel Management; Designated Routes and Areas for Motor Vehicle Use; Final Rule,* (36 CFR Parts 212, 251, 261, 295) commonly known as the Travel Management Rule and designate roads, trails, and areas open to motor vehicle use. The Forest Service will prepare an environmental impact statement

(EIS)to document the analysis and disclose the environmental impacts of proposed land management activities, and corresponding alternatives, within the Nebraska Travel Management Project area. The Nebraska Travel Management Rule Implementation project area is located primarily on National Forest System lands, administered by the Nebraska National Forest in northwestern Nebraska and southwestern South Dakota. DATES: Comments concerning the proposed land management activities should be received within 30 days following publication of this notice to receive timely consideration in the preparation of the draft EIS. ADDRESSES: Send written comments concerning the proposed land management activities or requests to be placed on the project mailing list to: Mark Reichert, Project Leader; Attention: Nebraska Travel Management Project, ACT2 Enterprise Unit, 1312 Fairlane Road, Yreka, California 96097-9549. You are welcome and encouraged to submit electronic comments in acceptable formats [plain text (.txt), rich text (.rtf) or Word (.doc)] to: *mreichert@fs.fed.us* . FOR FURTHER INFORMATION CONTACT: Mark Reichert, Project Leader, ACT2 Enterprise Unit, 1312 Fairlane Road, Yreka, California 96097-9549, phone

(530)841-4422, e-mail: *mreichert@fs.fed.us* . SUPPLEMENTARY INFORMATION: The information presented in this notice is included to help the reviewer determine if they are interested in or potentially affected by proposed land management activities. Information presented in this notice is summarized. Those who wish to provide comments, or are otherwise interested in or affected by the project, are encouraged to obtain additional information from the contact identified in the previous section titles: FOR FURTHER INFORMATION CONTACT . *Proposed Action* —Proposed land management activities (Proposed Action) include the following, with approximate mileage and acreage values:

(1)Designation of 552 miles of motorized travel, which includes 514 miles of roads (303 miles for both Highway Legal Vehicles

(HLV)and Off-Highway Legal Vehicles

(OHV)use, and 211 miles for HLV use only) and 38 miles of trails for OHV use

(2)Designation of 5,441 acres of motorized travel. *Project History* —On November 2, 2005, the Forest Service announced the *Travel Management; Designated Routes and Areas for Motor Vehicle Use; Final Rule* governing OHV and other motor vehicle use on national forests and grasslands. Commonly known as National Travel Management Rule, it directs all national forests and national grasslands to allow wheeled motorized vehicle travel only on designated roads, trails, and areas. This changes OHV rules on national forests to a “closed unless designated open” policy. In January of 2008, the Nebraska Travel Management Route Implementation Project is being presented to the public for comment (scoping) prior to undertaking preparation of an Environmental Impact Statement. *Responsible Officials* —Four District Rangers of the Nebraska National Forest, Patti Barney, for the Bessey District Ranger, Michael McNeill, for the Fall River District Ranger, Charlie Marsh, for the Pine Ridge District Ranger, Kevin Atchley, for the Wall District Ranger, will serve in the capacity of responsible officials throughout this process. These Responsible Officials will be making project-level decisions from the project. *Decision Space* —Decision-making will be limited to specific activities relating to the Proposed Action. The primary decision to be made will be whether or not to implement the Proposed Action or another alternative that responds to the project's purpose and needs. *Preliminary Issues* —Comments from American Indian tribes, the public, and other agencies will be considered in identifying preliminary issues. Issues raised in similar projects have included: effects on hunting, recreation, and conflicts between different user groups. *Public Participation* —The Forest Service is seeking comments from Federal, State, and local agencies, as well as local Native American tribes and other individuals or organizations that may be interested in or affected by the Proposed Action. Comments received in response to this notice will become a matter of public record. While public participation is welcome at any time, comments on the Proposed Action received within 30 days of this notice will be especially useful in the preparation of the draft EIS. Timely comments will be used to identify: Potential issues with the Proposed Action, development of alternatives to the Proposed Action that respond to identified needs and significant issues, and potential environmental effects of the Proposed Action and alternatives considered in detail. In addition, the public is encouraged to contact and/or visit Forest Service officials at any time during the planning process. *Estimated Dates for Filing* —The draft EIS is expected to be filed with the Environmental Protection Agency and available for public review in August 2008. A 45-day comment period will follow publication of a Notice of Availability of the draft EIS in the **Federal Register** . Comments received on the draft EIS will be used in preparation of the final EIS, expected in January 2009. Four different Record of Decisions

(RODs)will also be issued at that time, one for each Ranger District, along with publication of a Notice of Availability of the final EIS and RODs in the **Federal Register** . *Reviewer's Obligations to Comment* —The Forest Service believes it is important at this early stage to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of the draft EIS must structure their participation in the environmental review of the proposal in such a way that is meaningful and alerts an agency to the reviewer's position and contentions. *Vermont Yankee Nuclear Power Corp.* v. *NRDC* , 435 U.S.C. 519, 513 (1978). Also, environmental objections that could be raised at the draft EIS stage but are not raised until after completion of the final EIS may be waived or dismissed by the courts. *City of Angoon* v. *Hodel* , 803 F.2d 1016, 1022 (9th Cir, 1986), and *Wisconsin Heritages Inc.* v. *Harris* , 490 F.Supp. 1334, 1338 (E.D. Wis., 1980). Because of these court rulings, it is very important that those interested in this Proposed Action participate by the close of the 45-day comment period of the draft EIS in order that comments and objections are available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final EIS. To assist the Forest Service in identifying and considering issues and concerns on the Proposed Action, comments should be as specific as possible. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Dated: December 18, 2007. Don Bright, Forest Supervisor, Nebraska National Forest, 125 North Main, Chadron, NE 69337. [FR Doc. 08-80 Filed 1-10-08; 8:45 am]

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