Rules and Regulations. Final rule

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BILLING CODE 3510-33-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 520 Oral Dosage Form New Animal Drugs; Spectinomycin AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration

(FDA)is amending the animal drug regulations to correct an error in the indications for use for spectinomycin oral solution in swine. FDA is also amending the regulations for other oral dosage forms of spectinomycin to reflect a current format. These actions are being taken to improve the accuracy and readability of the animal drug regulations. DATES: This rule is effective February 5, 2008. FOR FURTHER INFORMATION CONTACT: George K. Haibel, Center for Veterinary Medicine (HFV-6), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-276-9019, e-mail: *george.haibel@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: FDA has noticed that the animal drug regulations do not reflect the approved indications for use for spectinomycin oral solution in swine. At this time, FDA is amending the animal drug regulations in § 520.2123c (21 CFR 520.2123c) to correct this error. FDA is also amending the regulations in § 520.2123a for spectinomycin tablets and in § 520.2123b for spectinomycin powder to reflect a current format. These actions are being taken to improve the accuracy and readability of the animal drug regulations. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 520 Animal drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under the authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows: PART 520—ORAL DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 520 continues to read as follows: Authority: 21 U.S.C. 360b. 2. Revise § 520.2123 to read as follows: § 520.2123 Spectinomycin oral dosage forms. 3. Revise § 520.2123a to read as follows: § 520.2123a Spectinomycin tablets.

(a)*Specifications* . Each tablet contains spectinomycin dihydrochloride pentahydrate equivalent to 100 milligrams

(mg)spectinomycin.

(b)*Sponsor* . See No. 061623 in § 510.600(c) of this chapter.

(c)*Conditions of use in dogs* —(1) *Amount* . Administer orally to provide 10 mg per pound

(lb)of body weight twice daily. Dosage may be continued for 4 consecutive days.

(2)*Indications for use* . For the treatment of infectious diarrhea and gastroenteritis caused by organisms susceptible to spectinomycin.

(3)*Limitations* . Federal law restricts this drug to use by or on the order of a licensed veterinarian. 4. Revise § 520.2123b to read as follows: § 520.2123b Spectinomycin powder.

(a)*Specifications* . Each gram

(g)of powder contains spectinomycin dihydrochloride pentahydrate equivalent to 0.5 g spectinomycin.

(b)*Sponsor* . See No. 061623 in § 510.600(c) of this chapter.

(c)*Related tolerances* . See § 556.600 of this chapter.

(d)*Conditions of use in chickens* . It is administered in the drinking water of growing chickens as follows:

(1)*Indications for use and amounts* —(i) For increased rate of weight gain and improved feed efficiency in broiler chickens, administer 0.5 g per gallon of water as the only source of drinking water for the first 3 days of life and for 1 day following each vaccination.

(ii)As an aid in controlling infectious synovitis due to *Mycoplasma synoviae* in broiler chickens, administer 1 g per gallon of water as the only source of drinking water for the first 3 to 5 days of life.

(iii)As an aid in the prevention or control of losses due to CRD associated with *M. gallisepticum*

(PPLO)in growing chickens, administer 2 g per gallon of water as the only source of drinking water for the first 3 days of life and for 1 day following each vaccination.

(2)*Limitations* . Do not administer to laying chickens. Do not administer within 5 days of slaughter. 5. Revise § 520.2123c to read as follows: § 520.2123c Spectinomycin solution.

(a)*Specifications* . Each milliliter of solution contains spectinomycin dihydrochloride pentahydrate equivalent to 50 milligrams

(mg)spectinomycin.

(b)*Sponsors* . See Nos. 000856, 059130, and 061623 in § 510.600(c) of this chapter.

(c)*Related tolerances* . See § 556.600 of this chapter.

(d)*Conditions of use in swine* —(1) *Amount* . Administer 5 mg per pound

(lb)of body weight orally twice daily for 3 to 5 days.

(2)*Indications for use* . For the treatment and control of porcine enteric colibacillosis (scours) caused by *E. coli* susceptible to spectinomycin in pigs under 4 weeks of age.

(3)*Limitations* . Do not administer to pigs over 15 lb body weight or over 4 weeks of age. Do not administer within 21 days of slaughter. Dated: January 24, 2008. Bernadette Dunham, Director, Center for Veterinary Medicine. [FR Doc. E8-2065 Filed 2-4-08; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [Docket No. USCG-2007-0036, formerly CGD07-122] RIN 1625-AA01 Anchorage Regulation; Port Everglades, FL AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard amends the anchorage regulations for Port Everglades, Florida. The amendment modifies the current anchorage area by eliminating that portion of the anchorage closest to sensitive coral reef areas, expands that portion of the anchorage area that poses less risk to these areas, and limits the amount of time a vessel may remain in the anchorage area. These changes ensure all vessels have fair access to the anchorage area, and provide a higher degree of vessel and environmental safety by reducing the possibility of vessels grounding in sensitive coral reef areas. DATES: This rule is effective March 6, 2008. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket [USCG-2007-0036, formerly CGD07-122] and are available for inspection or copying at United States Coast Guard Sector Miami, 100 MacArthur Causeway, Miami Beach, Florida between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: LTJG Chris Svencer, United States Coast Guard Sector Miami Waterways Management at 305-535-4550. SUPPLEMENTARY INFORMATION: Regulatory Information On October 22, 2007, we published a notice of proposed rulemaking

(NPRM)entitled Anchorage Regulation; Port Everglades, FL in the **Federal Register** (72 FR 59491). We received 10 letters commenting on the proposed rule. No public meeting was requested, and none was held. Background and Purpose During the last ten

(10)years, nine

(9)known vessel groundings and six

(6)known vessel anchor mishaps have occurred during attempted or actual use of the Port Everglades anchorage areas. Anchoring mishaps include both misplacement of the anchor itself and/or laying of the anchor chain on the sensitive coral reefs. The east coast of Florida is susceptible to severe and erratic weather, and mariners who are not vigilant can find themselves in extreme situations. Adverse weather conditions, proximity to the reef, congestion in the anchorage, poor navigation and seamanship were contributing factors to the groundings and anchoring mishaps in the Port Everglades anchorage and surrounding vicinity. The current anchorage regulation is published in 33 CFR 110.186. This rule is needed to strengthen existing anchoring requirements and guidelines in order to provide a higher degree of protection to the coastal area and sensitive benthic coral reef ecosystems, as well as to provide a safer anchorage for mariners. This rule re-designates the anchorage areas to account for anchor position and chain lay and limit the amount of time vessels may remain at anchorage. The Coast Guard has also researched alternative solutions for restructuring the anchorage. These alternatives have included: change nothing and continue to use the current anchorage; create anchorage circles to control the location of vessels in the anchorage; and remove the anchorage completely. The groundings and anchor mishaps have had a negative impact on the sensitive coral reefs and prompts the Coast Guard to alter the current anchorage area. Creating anchorage circles for precision anchorage does not eliminate the threat to the local reefs due to changing weather conditions that may cause vessels, even if properly anchored, to drag over the coral reefs to the west. Lastly, while removing the anchorage altogether would arguably be best for the environment, this option is not economically feasible due to the legitimate need for commercial vessels to anchor while awaiting berth in Port Everglades. Discussion of Comments and Changes On October 22, 2007 the Coast Guard published a notice of proposed rulemaking

(NPRM)that proposed changing the location of the commercial anchorage located offshore from Port Everglades in Fort Lauderdale, Florida. Ten letters were received in response to the NPRM. All ten letters were in favor of moving the anchorage into deeper waters to protect the environment. Within the ten letters there were numerous different comments addressing the new location of the anchorage. Three comments addressed moving the anchorage either farther to the south or farther offshore from the Port Everglades main ship channel. Both of these options were extensively explored by the Harbor Safety Committee. Due to a restricted area designated by 33 CFR 334.580, the area south of Port Everglades does not permit anchoring of vessels. This area is immediately south of the main ship channel entrance and continues south for approximately 4 nautical miles. Moving the anchorage further offshore than proposed by this rule creates a potentially untenable and even dangerous situation for many commercial vessels awaiting berths in Port Everglades. The further the vessels are offshore the deeper the water they must anchor in. Beyond the reasonable depth that the revised anchorage proposes, many of the commercial vessels calling on Port Everglades will have insufficient anchor chain to properly scope to the standard 5 to 7 times the water depth to provide sufficient holding, thus presenting a risk to the reefs, other vessels in the anchorage, and even the vessel deploying their anchor. Two comments addressed installing a mooring buoy system for vessels in the anchorage. The installation of mooring buoys is extremely costly and once installed require continual maintenance to be effective. One of the comments also addressed funding the buoys by taxing each vessel that uses the port. This option was reviewed and considered by the Harbor Safety Committee but was not a viable option. At this time the committee is unaware of any federal, state, or local government agency willing to authorize, fund, and maintain the mooring buoys. If at a later time a single or joint entity would fund this project, the Harbor Safety Committee would readdress this issue at that time. The solution to move the anchorage offshore to its new location is a step in the right direction to ensure the safety of our reefs and shores. Another comment addressed better educating mariners regarding the location of the sensitive reefs in the area. In cooperation with the anchorage relocation, the National Oceanic and Atmospheric Administration has added “Co”, the charting designation for a coral bottom, on all charts that depict the area offshore of Fort Lauderdale. This in coordination with increased information in the Coast Pilot will assist mariners in understanding the location of reefs in the area. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This rule may affect the following entities, some of which might be small entities: The owners or operators of vessels intending to utilize the anchorage area outside Port Everglades, Florida. This rule will not have a significant economic impact on a substantial number of small entities for the same reasons given above in the “Regulatory Evaluation” section of this preamble. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If this rule affects your small business, organization, or governmental jurisdiction and you have questions concerning compliance, please contact Lieutenant Junior Grade Chris Svencer, Coast Guard Sector Miami, Waterways Management Division at

(305)535-4550. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(f), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (34)(f), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. Even though a categorical exclusion may be used the Coast Guard found good reason to further investigate the effects the anchorage area modification would have on the environment. A preliminary “Environmental Analysis Check List” is available in the docket where indicated under ADDRESSES . Furthermore, as part of section 7 of the Endangered Species Act (50 CFR part 402, 16 U.S.C. 1536), the U.S. Coast Guard opened consultation with a number of stakeholders. The National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service (NMFS), and U.S. Fish and Wildlife Service

(FWS)have reviewed all restructuring plans and believe the proposed action would not likely affect the West Indian Manatee, Johnson's Seagrass, Smalltooth Sawfish, and all local turtle species because the project does not have any elements with the potential to affect these listed species. NOAA also found that the restructuring into deeper waters, farther away from the easternmost reef, is likely to have an indirect beneficial effect on Elkhorn and Staghorn coral by potentially reducing vessel groundings and anchor damage that have adversely affected corals and other important near shore benthic resources in the project area. List of Subjects in 33 CFR Part 110 Anchorage grounds. Words of Issuance and Regulatory Text For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows: PART 110—ANCHORAGE REGULATIONS 1. The authority citation for part 110 continues to read as follows: Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071,; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1. 2. Amend § 110.186 by revising paragraphs (a), (b)(3) through (6), and adding paragraphs (b)(7) through

(9)to read as follows: § 110.186 Port Everglades, Florida.

(a)The anchorage grounds. The anchorage grounds, the center of which is located approximately two and one half miles northeast of the entrance to Port Everglades, is an area bounded by a line connecting points with the following North American Datum 83 coordinates: Latitude Longitude 26-08′26.934″ N 080-04′28.240″ W 26-08′08.560″ N 080-04′16.158″ W 26-07′56.000″ N 080-04′17.486″ W 26-07′56.000″ N 080-02′42.623″ W 26-07′19.500″ N 080-02′53.153″ W 26-07′19.500″ N 080-04′28.800″ W 26-06′35.160″ N 080-04′28.800″ W 26-06′35.160″ N 080-04′38.694″ W 26-08′26.934″ N 080-04′28.240″ W

(b)* * *

(3)All vessels within the designated anchorage area shall maintain a 24-hour bridge watch by a licensed deck officer proficient in English, monitoring VHF-FM channel 16. This individual shall confirm that the ship's crew performs frequent checks of the vessel's position to ensure the vessel is not dragging anchor.

(4)Vessels may anchor anywhere within the designated anchorage area provided that: such anchoring does not interfere with the operations of any other vessels currently at anchorage; and all anchor and chain or cable is positioned in such a manner to preclude dragging over reefs.

(5)No vessel may anchor in a “dead ship” status ( *i.e.* propulsion or control unavailable for normal operations) without the prior approval of the Captain of the Port. Vessels experiencing casualties such as a main propulsion, main steering or anchoring equipment malfunction or which are planning to perform main propulsion engine repairs or maintenance, shall immediately notify the Coast Guard Captain of the Port via Coast Guard Sector Miami on VHF-FM Channel 16.

(6)No vessel may anchor within the designated anchorage for more than 72 hours without the prior approval of the Captain of the Port. To obtain this approval, contact the Coast Guard Captain of the Port, via the Port Everglades Harbor Master, on VHF-FM Channel 14.

(7)The Coast Guard Captain of the Port may close the anchorage area and direct vessels to depart the anchorage during periods of adverse weather or at other times as deemed necessary in the interest of port safety or security.

(8)Commercial vessels anchoring under emergency circumstances outside the anchorage area shall shift to new positions within the anchorage area immediately after the emergency ceases.

(9)Whenever the maritime or commercial interests of the United States so require, the Captain of the Port, U.S. Coast Guard, Miami, Florida, may direct relocation of any vessel anchored within the anchorage area. Once directed, such vessel must get underway at once or signal for a tug, and must change position as directed. Dated: January 10, 2008. D.W. Kunkel, Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard District. [FR Doc. E8-1757 Filed 2-4-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2008-0013] RIN 1625-AA87 Security Zone; MacDill Air Force Base, Tampa Bay, FL AGENCY: Coast Guard, DHS. ACTION: Interim rule with request for comments. SUMMARY: The Coast Guard is establishing a security zone that is concurrent with the Army Corps of Engineers restricted area adjacent to MacDill Air Force Base. The security zone is necessary to facilitate security operations conducted at the Air Force Base. All persons, vessels, or other craft are prohibited from anchoring, mooring, drifting, or transiting within this zone, unless authorized by the Captain of the Port St. Petersburg or a designated representative. DATES: This interim rule is effective February 5, 2008. Comments and related material must reach the Docket Management Facility on or before April 7, 2008. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2008-0013 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:

(1)*Online:* *http://www.regulations.gov* .

(2)*Mail:* Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

(3)*Hand delivery:* Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

(4)*Fax:* 202-493-2251. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call Waterways Management Division, Sector St. Petersburg, FL

(813)228-2191, Ext 8307. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. We have an agreement with the Department of Transportation

(DOT)to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0013), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. For example, we may ask you to resubmit your comment if we are not able to read your original submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this rule in view of them. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to *http://www.regulations.gov* at any time, click on “Search for Dockets,” and enter the docket number for this rulemaking (USCG-USCG-2008-0013) in the Docket ID box, and click enter. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Privacy Act Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477), or you may visit *http://DocketsInfo.dot.gov* . Public Meeting We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Regulatory Information We did not publish a notice of proposed rule making

(NPRM)for this rule. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. It is unnecessary because the purpose of this rule is to reinforce and support an already existing exclusionary area that was previously designated with prohibitions against both person and vessel movements. There are no new restrictions being proposed. For the same reasons above, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the **Federal Register** . Background and Purpose This area is already a designated an exclusionary zone. Under 33 CFR 334.635, the Army Corps of Engineers established a restricted area adjacent to MacDill Air Force Base. The Coast Guard is establishing a security zone that is concurrent with this restricted area to assist in enforcing the prohibition against all persons, vessels, and other craft that may enter, transit, anchor, or drift into this prohibited area. MacDill Air Force base routinely conducts operations and contains infrastructure critical to national security. This security zone is necessary to protect those operations and infrastructure as well as to prevent subversive activities. To more appropriately address the security risks associated with MacDill Air Force Base, as well as to enable agencies to work from a common operating picture and to maximize the synergy of enforcement resources, the Coast Guard is establishing this security zone. Using the newly developed Maritime Security Risk Analysis tool, a working group comprised of security analysts from local law enforcement agencies, MacDill Operations, industrial partners, and the Coast Guard evaluated the risk to the maritime transportation system

(MTS)within Tampa Bay. The results of the risk assessment indicated the need to revisit whether the existing security zones sufficiently provided adequate coverage for implementing counter-surveillance, intrusion detection, and response measures for the port community. This holistic approach determined that additional mechanisms were necessary to address MacDill Air Force Base security risks as well as help mitigate common risk factors across the entire bay. The resulting proposal consists of the existing exclusionary area defined by the Army Corps of Engineers and the establishment of a Coast Guard security zone that coincides with that exclusionary area. Discussion of Rule The security zone coincides with the Army Corps of Engineers restricted area adjacent to MacDill Air Force Base and includes portions of the waters of Hillsborough Bay, Old Tampa Bay, and Tampa Bay. This area is marked as a prohibited area on navigation charts and is bounded by the following coordinates: latitude 27°51′52.901″ N., longitude 82°29′18.329″ W., thence directly to latitude 27°52′00.672″ N., longitude 82°28′51.196″ W., thence directly to latitude 27°51′28.859″ N., longitude 82°28′10.412″ W., thence directly to latitude 27°51′01.067″ N., longitude 2°27′45.355″ W., thence directly to latitude 27°50′43.248″ N., longitude 82°27′36.491″ W., thence directly to latitude 27°50′19.817″ N., longitude 82°27′35.466″ W., thence directly to latitude 27°49′38.865″ N., longitude 82°27′43.642″ W., thence directly to latitude 27°49′20.204″ N., longitude 82°27′47.517″ W., thence directly to latitude 27°49′06.112″ N., longitude 82°27′52.750″ W., thence directly to latitude 27°48′52.791″ N., longitude 82°28′05.943″ W., thence directly to latitude 27°48′45.406″ N., longitude 82°28′32.309″ W., thence directly to latitude 27°48′52.162″ N., longitude 82°29′26.672″ W., thence directly to latitude 27°49′03.600″ N., longitude 82°30′23.629″ W., thence directly to latitude 27°48′44.820″ N., longitude 82°31′10.000″ W., thence directly to latitude 27°49′09.350″ N., longitude 82°32′24.556″ W., thence directly to latitude 27°49′38.620″ N., longitude 82°33′02.444″ W., thence directly to latitude 27°49′56.963″ N., longitude 82°32′45.023″ W., thence directly to latitude 27°50′05.447″ N., longitude 82°32′48.734″ W., thence directly to latitude 27°50′33.715″ N., longitude 82°32′45.220″ W., thence directly to a point on the western shore of the base at latitude 27°50′42.836″ N., longitude 82°32′10.972″ W. All persons, vessels, or other craft are prohibited from anchoring, mooring, drifting, or transiting within this security zone under § 165.768, unless authorized by the Captain of the Port St. Petersburg or a designated representative. Also, § 334.635 requires that permission from the Commander of the MacDill Air Force Base, Florida, would need to be obtained before entering the Army Corps of Engineers restricted area which covers the same waters. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This area has already been designated as an exclusionary zone. The impact on routine navigation is expected to be minimal since the geographic boundaries of this security zone are the same as the Army Corps of Engineers restricted area. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule should not impact any entities due to the restricted nature of the waters surrounding MacDill Air Force Base. This security zone will not have a significant economic impact on a substantial number of small entities since vessel traffic in this area is already prohibited. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. Comments submitted in response to this finding will be evaluated under the criteria in the “Regulatory Information” section of this preamble. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Questions may be directed to the person identified in FOR FURTHER INFORMATION CONTACT . Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction, from further environmental documentation. This rule seeks to establish a security zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. Words of Issuance and Regulatory Text For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—SAFETY ZONES AND SECURITY ZONES 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. A new § 165.768 is added to read as follows: § 165.768 Security Zone; MacDill Air Force Base, Tampa Bay, FL.

(a)*Location.* The following area is a security zone which exists concurrent with an Army Corps of Engineers restricted area in § 334.635 of this title. All waters within Tampa Bay, Florida in the vicinity of MacDill Air Force Base, including portions of the waters of Hillsborough Bay, Old Tampa Bay, and Tampa Bay, encompassed by a line connecting the following coordinates: latitude 27°51′52.901″ N., longitude 82°29′18.329″ W., thence directly to latitude 27°52′00.672″ N., longitude 82°28′51.196″ W., thence directly to latitude 27°51′28.859″ N., longitude 82°28′10.412″ W., thence directly to latitude 27°51′01.067″ N., longitude 2°27′45.355″ W., thence directly to latitude 27°50′43.248″ N., longitude 82°27′36.491″ W., thence directly to latitude 27°50′19.817″ N., longitude 82°27′35.466″ W., thence directly to latitude 27°49′38.865″ N., longitude 82°27′43.642″ W., thence directly to latitude 27°49′20.204″ N., longitude 82°27′47.517″ W., thence directly to latitude 27°49′06.112″ N., longitude 82°27′52.750″ W., thence directly to latitude 27°48′52.791″ N., longitude 82°28′05.943″ W., thence directly to latitude 27°48′45.406″ N., longitude 82°28′32.309″ W., thence directly to latitude 27°48′52.162″ N., longitude 82°29′26.672″ W., thence directly to latitude 27°49′03.600″ N., longitude 82°30′23.629″ W., thence directly to latitude 27°48′44.820″ N., longitude 82°31′10.000″ W., thence directly to latitude 27°49′09.350″ N., longitude 82°32′24.556″ W., thence directly to latitude 27°49′38.620″ N., longitude 82°33′02.444″ W., thence directly to latitude 27°49′56.963″ N., longitude 82°32′45.023″ W., thence directly to latitude 27°50′05.447″ N., longitude 82°32′48.734″ W., thence directly to latitude 27°50′33.715″ N., longitude 82°32'45.220″ W., thence directly to a point on the western shore of the base at latitude 27°50′42.836″ N., longitude 82°32′10.972″ W.

(b)*Definitions.* The following definition applies to this section. *Designated representative* means Coast Guard Patrol Commanders including Coast Guard coxswains, petty officers and other officers operating Coast Guard vessels, and federal, state, and local officers designated by or assisting the Captain of the Port St. Petersburg (COTP), in the enforcement of regulated navigation areas, safety zones, and security zones.

(c)*Regulations.* In accordance with the general regulations in § 165.33 of this part, entry into, anchoring, mooring, or transiting this zone by persons or vessels is prohibited without the prior permission of the Coast Guard Captain of the Port St. Petersburg or a designated representative. Dated: January 16, 2008. J.A. Servidio, Captain, U.S. Coast Guard, Captain of the Port Sector St. Petersburg. [FR Doc. E8-1765 Filed 2-4-08; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-SFUND-1983-0002 Notice 4; FRL-8523-7] National Oil and Hazardous Substances Pollution Contingency Plan National Priorities List Update AGENCY: Environmental Protection Agency. ACTION: Direct final notice of deletion of the Industrial Waste Control Superfund Site from the National Priorities List. SUMMARY: The Environmental Protection Agency

(EPA)Region 6 is publishing a direct final notice of deletion of the Industrial Waste Control Superfund Site (Site), located near Fort Smith, Arkansas from the National Priorities List (NPL). The NPL, promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is appendix B of 40 CFR Part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). This direct final deletion is being published by EPA with the concurrence of the State of Arkansas, through the Arkansas Department of Environmental Quality (ADEQ), because EPA has determined that all appropriate response actions under CERCLA have been completed and, therefore, further remedial action pursuant to CERCLA is not appropriate. DATES: This direct final notice of deletion will be effective April 7, 2008 unless EPA receives adverse comments by March 6, 2008. If adverse comments are received, EPA will publish a timely withdrawal of the direct final notice of deletion in the **Federal Register** informing the public that the deletion will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-1983-0002 Notice 4, by one of the following methods: *http://www.regulations.gov:* (Follow the on-line instructions for submitting comments). *E-mail: walters.donn@epa.gov.* *Fax:* 214-665-6660. *Mail:* Donn Walters, Community Involvement, U.S. EPA Region 6 (6SF-TS), 1445 Ross Avenue, Dallas, TX 75202-2733,

(214)665-6483 or 1-800-533-3508. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-SFUND-1983-0002 Notice 4. EPA policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information, disclosure of which is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* , your e-mail address will automatically be captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption and be free of any defects or viruses. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information disclosure of which is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically at *http://www.regulations.gov* or in hard copy at the information repositories. *Information Repositories:* Comprehensive information about the Site is available for viewing and copying during central standard time at the Site information repositories located at: U.S. EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733,

(214)665-6617, by appointment only Monday through Friday 9 a.m. to 12 p.m. and 1 p.m. to 4 p.m.; Fort Smith Public Library, 3201 Rogers Avenue, Ft. Smith, AR 72903,

(479)783-0229, Monday through Thursday, 9 a.m. to 9 p.m., 9 a.m. to 6 p.m. Friday, 10 a.m. to 5 p.m. Saturday and 1 p.m. to 5 p.m. Sunday, Arkansas Department of Environmental Quality (ADEQ), 5301 Northshore Drive, North Little Rock, Arkansas 72118,

(501)682-0744, Monday through Friday 8 a.m. to 4:30 p.m. FOR FURTHER INFORMATION CONTACT: Shawn Ghose M.S., P.E., Remedial Project Manager (RPM), U.S. EPA Region 6 (6SF-RA), 1445 Ross Avenue, Dallas, TX 75202-2733,

(214)665-6782 or 1-800-533-3508 or *ghose.shawn@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction II. NPL Deletion Criteria III. Deletion Procedures IV. Basis for Site Deletion V. Deletion Action I. Introduction The EPA Region 6 office is publishing this direct final notice of deletion of the Industrial Waste Control Superfund Site from the NPL. The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in § 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action. Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective April 7, 2008 unless EPA receives adverse comments by March 6, 2008 on this document. If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion, and the deletion will not take effect. The EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment. Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Industrial Waste Control Superfund Site, and demonstrates how it meets the deletion criteria. Section V discusses EPA actions to delete the Site from the NPL unless adverse comments are received during the public comment period. II. NPL Deletion Criteria Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a Site from the NPL, EPA shall consider, in consultation with the State, whether any of the following criteria have been met: i. responsible parties or other persons have implemented all appropriate response actions required; ii. all appropriate Fund-financed (Hazardous Substance Superfund Response Trust Fund) response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate. Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA Section 121(c), 42 U.S.C. 9621(c) requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. If new information becomes available that indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system. III. Deletion Procedures The following procedures apply to deletion of the Site:

(1)The EPA consulted with ADEQ on the deletion of the Site from the NPL prior to developing this direct final notice of deletion.

(2)ADEQ concurred with deletion of the Site from the NPL.

(3)Concurrent with publication of this direct final notice of deletion, a notice of availability of the parallel notice of intent to delete published today in the “Proposed Rules” section of the **Federal Register** is being published in a major local newspaper of general circulation at or near the Site, and is being distributed to appropriate federal, state and local government officials and other interested parties. The newspaper notice announces the 30-day public comment period concerning the notice of intent to delete the Site from the NPL.

(4)The EPA placed copies of documents supporting the deletion in the Site information repositories identified above.

(5)If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely notice of withdrawal of this direct final notice of deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. Deletion of a site from the NPL does not itself create, alter or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions should future conditions warrant such actions. IV. Basis for Site Deletion The following information provides EPA's rationale for deleting this Site from the NPL. Site Location The IWC Site is 8 miles southeast of Ft. Smith, in Sebastian County, Arkansas. It is 1 mile west of the town of Jenny Lind and 4.5 miles east of the town of Bonanza. It can be reached by taking Highway 71 approximately 8 miles south of Ft. Smith, turning east on Bonanza Rd. for about one mile then turning south on the second entrance to Racetrack Road. The Site is the eight acre tract of elevated land enclosed within a six foot chain link fence at the south end of the Racetrack Rd loop less than a mile from Bonanza Rd. Site History The Site is located in a historic coal mining region which dates back to the late 1800's. There is an extensive network of abandoned underground coal mines north of the Site operated from the 1890s through 1932. In the mid-1940's, a surface strip mine was placed in operation at the Site to recover coal which was too shallow to mine by underground methods. The extent of the final narrow strip mine was approximately 40 feet deep and 2,000 feet long. The western half of this strip mine was ultimately converted into a commercial industrial waste landfill in the late 1960s. A full permit to receive industrial waste at the Site was issued by the Arkansas Department of Pollution Control and Ecology (currently known as the Arkansas Department of Environmental Quality or ADEQ) to GNJ, Inc. on May 24, 1974. In August of 1974 the Site was sold and renamed the Industrial Waste Control Landfill (IWC). The IWC operations included the landfill and surface impoundments. The facility received waste from industrial plants in and around Ft. Smith. The surface impoundments were constructed sometime in the late summer or early fall of 1975. They were used to store and evaporate liquid wastes received at the Site. Drums were deposited in two isolated drum disposal areas. In response to ADEQ's directives concerning a surface impoundment release the operator stopped accepting liquid solvents in mid-1977. Closure activities were initiated shortly thereafter. On August 8, 1978 the ADEQ was notified that the landfill had been closed and covered with compacted material and graded to ensure adequate surface drainage. The EPA initiated investigations at the Site in 1980 in response to an ADEQ 1979 report of a surface impoundment leachate problem. As a result, the IWC site was placed on the NPL on December 30, 1982. The Site *Remedial Action Master Plan* was completed by the EPA on September 30, 1983. The EPA notified potentially responsible parties

(PRPs)who organized into the IWC Steering Committee (“the Committee”) in November of 1983. The Committee met with the regulatory agencies in November of 1983 to discuss voluntary remediation and the following studies were undertaken by the EPA and the Committee respectively. Remedial Investigation and Feasibility Study (RI/FS) The EPA's *Remedial Investigation*

(RI)report and *Endangerment Assessment*

(EA)were completed on March 31, 1986, and its *Feasibility Study*

(FS)was completed on June 3, 1986. The EPA authorized the Committee under an agreed Administrative Order to conduct an independent remedial investigation referred to as the *Hydrological and Waste Quantification Study* (HWQS). The HWQS was conducted from March through July 1987. All field investigation activities conducted by the Committee were overseen by the EPA, and coordinated through the ADEQ. The HWQS report was submitted to the Agencies in October of 1987. A *Supplemental Feasibility Study* and *Supplemental Endangerment Assessment* were prepared by the Committee and submitted to the Agencies in February 1988. The Endangerment Assessments

(EA)were conducted to identify the potential risks to public health and the environment. The general EA conclusions were that the exposure pathways did not present an unacceptable risk; significant concentrations of constituents of concern

(COC)had not migrated off site; most COC were non-carcinogens; and without a transport mechanism COC did not present an unacceptable risk to groundwater. The selected response action took these risk factors into account. The Committee's FS evaluated remedy options and proposed a remedial action plan which included removing the surface impoundments and drum disposal areas, treating soils with constituents of concern above clean up criteria, placement of the treated soils in the surface impoundment excavation, controlling migration and infiltration by installing slurry wall/french drain system, covering the surface with a full RCRA cap and cover, and securing the entire Site within a secure 6 foot chain link fence topped with three barb wire strands and controlling access. The EPA and the ADEQ determined that the proposed remediation alternative met the mandates of Superfund Amendments and Reauthorization Act (SARA). A press release and a fact sheet summarizing the alternative were distributed to the general local population and interested parties on April 19, 1988. A public meeting was held with the area residents and local officials on May 9, 1988 at the South Sebastian County Courthouse. Written comments and questions were received during the comment period which ended June 2, 1988. The EPA's *Record of Decision*

(ROD)was signed on June 28, 1988. Record of Decision The Record of Decision

(ROD)established remediation objectives. The objectives were to remove buried drums in Area C and D and dispose of all liquids in an offsite RCRA facility; treat contaminated soils above clean up criteria from Areas C, D, and 09B to pass the RCRA Toxicity Characteristic Leaching Procedure

(TCLP)and solidify the treated soil in the Area C excavation; install a french drain to intercept and divert shallow groundwater around the Site, and a slurry wall to prevent migration of onsite groundwater. Groundwater encountered during remediation excavation was to be collected and treated to meet effluent limitations or mixed with the stabilized soils to meet TCLP limits. Solid and liquid wastes generated during RI were to be characterized and treated and disposed on or offsite as appropriate. A multi-layered RCRA cap was to be constructed to cover the entire site area. A surface drainage ditch was to be constructed on the upgradient side of the RCRA cap to divert surface run-on around the covered Site. Land use restrictions and a security fence were to be put in place to prevent development of the site. Upgradient and downgradient groundwater was to be monitored, and the effectiveness of the remedy was to be verified every five years. The objectives of the ROD were to be implemented in accordance with the Remedial Action Plan (RAP), which outlined the general conceptual procedures to be followed including preparation of contingency, solid and waste management, health and safety, and QA/QC Plans. The RAP was prepared to comply with all applicable or relevant and appropriate requirements (ARARs) of the Federal, State and local rules and regulations. Cleanup Standards The remedial action objectives were to minimize the potential for waste migration, protect human health and the environment, prevent future contamination of surface water and groundwater and minimize short-term air emissions resulting from remedial activities. Response Actions The following actions were conducted in response to the ROD/RAP to minimize the potential risks to the water stored in the mine void reservoir: Reduce toxicity and volume by excavating soils that exceeded Clean-up Criteria (1000ppm Total VOC) encountered in Areas B, C, D, 09B, and along the Slurry Wall and French Drain pathway and treating the soils using chemical fixation and stabilization to meet treatment standards based on EPA Toxicity Concentration Leachate Procedure (TCLP). The treated soils meeting TCLP standards were placed back into the excavation of Area C, solidified with concrete. Area C was then contained within a slurry wall keyed into the weathered bedrock and Site slurry wall and then capped with a RCRA Cap and Cover. Drums removed from Areas C and D that contained liquids were transport to an offsite permitted commercial disposal facility. Mobility was reduced by removing the leachate transport mechanism by installing French Drain upgradient of the Site to intercept shallow rain infiltration above the weathered bedrock and divert it around the remediated area. A slurry wall was installed downgradient and parallel to the French Drain to cutoff backflow from the impacted Site soils into the French Drain, and to provide backup for the French Drain. The entire remediated area including the Landfill, French Drain, Site slurry wall and self contained Area C was covered with a multilayer RCRA Cap and Cover to prevent rainfall infiltration into the remediated area. Long term security for the remediated site is provided by the Cap and Cover, site security fence and restricted site access and use. The Site is maintained, monitored and inspected regularly in accordance with the Post Closure Activity Plan. Operation and Maintenance (O&M) The Post Closure Activity Plan (January 1991) as approved by the EPA specified the actions to be carried out once remediation construction was completed (3/29/91). The Post Closure Activity Plan

(PCAP)included: monitor well sampling on a quarterly then semiannual basis once baseline action levels were established; site inspections to coincide with monitor well sample events; site mowing and erosion control maintenance; monitor event reports and Five Year Reports to be submitted by the EPA and ADEQ. The site monitoring has been conducted in compliance with the PCAP as amended, with minor occasional variances duly noted and reported. Monitor wells are sampled in accordance with standard EPA protocol. Sample results which exceed action limits are resampled to confirm conditions. Such occurrences have been infrequent and follow-up resample results have returned to below action limits. The Site vegetation and erosion control has been maintained. While significant site repair has not been necessary, occasional site maintenance has included: well repair and Area C evaluation, installation of additional downgradient monitor wells, repair of french drain and recharge well, regular site mowing, and topsoil replacement. The Site is totally enclosed by a 6 foot chain link fence topped with three strands of barbed wire. Access is limited to two gates secured with a chain and lock to which only authorized agency and PRP personnel have keys. Over the course of the Post Closure Care period, there have been infrequent and minor instances of site disturbance and trespassing. Institutional controls

(ICs)are a necessary component of maintaining the long-term protectiveness of the remedy. ICs are legal and administrative measures that prevent exposure to contaminants that may remain at a site at concentrations above health-based risk levels. They are typically designed to limit activities at or near the Site, and include requirements for providing notice (i.e., deed recordation) in the real property records for properties where residual contamination will remain. For this Site, the ICs include a deed recordation with a notice that buried contaminants remain on the property, and a prohibition against any reuse, development or other activities that might disturb or damage the affected areas without the approval of EPA, ADEQ and the property owner. The requirement for institutional controls was met through deed recordation in the Official Public Records of Real Property in Sebastian County, Arkansas. Five-Year Review The EPA must conduct a statutory five-year review of the remedy no less than every five years after the initiation of the remedial action pursuant to CERCLA Section 121(c). Based on the five-year reviews, EPA will determine whether human health and the environment continue to be adequately protected by the implemented remedy. Five-year reviews for this Site were completed in February 1997, July 2002, and a revised version in September 2007. During the July 2002 five-year review, EPA had prepared Deletion document for the Site. However Deletion was put on hold as baseline contaminants were exceeded in three monitor wells. IWC Settling Defendants

(PRPs)conducted a Site Assessment Study

(SAS)which included statistical analysis, risk assessment and fate and transport studies of the contaminants in the offending monitor wells. Based on the data from SAS study by the IWC Settling Defendants, EPA has concluded that offsite migration of contaminants will not occur. Therefore Deletion of the Site from the National Priorities List

(NPL)is appropriate at this time. The next five-year review will occur no later than September 2012. Community Involvement Public participation activities required in CERCLA Section 113(k), 42 U.S.C. 9613(k), and CERCLA Section 117, 42 U.S.C. 9617, have been satisfied, and documents which EPA generated and/or relied on are available to the public in these information repositories. V. Deletion Action The EPA, with concurrence of the State of Arkansas, has determined that all appropriate responses under CERCLA have been completed, and that no further response actions under CERCLA, other than O&M and five-year reviews, are necessary. Therefore, EPA is deleting the Site from the NPL. Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective April 7, 2008 unless EPA receives adverse comments by March 6, 2008. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and it will not take effect. The EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment. List of Subjects in 40 CFR Part 300 Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. Dated: September 28, 2007. Richard E. Greene, Regional Administrator, EPA Region 6. For the reasons set out in the preamble, 40 CFR part 300 is amended as follows: PART 300—[AMENDED] 1. The authority citation for part 300 continues to read as follows: Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p.193. Appendix B—[Amended] 2. Table 1 of Appendix B to Part 300 is amended under Arkansas (“AR”) by removing the entry for “Industrial Waste Control.” [FR Doc. E8-1964 Filed 2-4-08; 8:45 am] BILLING CODE 6560-50-P 73 24 Tuesday, February 5, 2008 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0116; Directorate Identifier 2007-NM-257-AD] RIN 2120-AA64 Airworthiness Directives; Dassault Model Falcon 2000 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Wing anti ice telescopic tubes (P/N [part number] 5035-400 and 5035-500) ball joints were originally designed with high temperature polymer (Kynel TM ) sealing rings. Temperature induced cracking of these rings associated with long term wear has been encountered in a small number of cases. This degradation may lead to binding of the ball joint and high swiveling forces which may result in improper operation of the leading edge slats and also in failure of the ball joint mounting bracket with possible friction on the aileron control rod, which could lead, if combined with a failure of the aileron emergency actuator, to an aileron jamming. The unsafe condition is a jammed aileron, which results in reduced controllability of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by March 6, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:*

(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building, Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

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

(425)227-1137; fax

(SB)5035-30-001 and 5035-30-002, resulting in P/N re-designations 5035-600 Amdt.A and 5035-700 Amdt.A, respectively. The purpose of this Airworthiness Directive (AD), by requiring modification of the wing anti-ice telescopic tubes in accordance with the Zodiac service bulletins, is to ensure that no old definition sealing rings remain in operation beyond a life limit of 2,400 flight hours

(FH)or 2,000 flight cycles (FC). The unsafe condition is a jammed aileron, which results in reduced controllability of the airplane. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Zodiac has issued Service Bulletins 5035-30-001 and 5035-30-002, both dated April 15, 2002. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 159 products of U.S. registry. We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $1,423 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $277,137, or $1,743 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Dassault Aviation:** Docket No. FAA-2008-0116; Directorate Identifier 2007-NM-257-AD. Comments Due Date

(a)We must receive comments by March 6, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Dassault Model Falcon 2000 airplanes, certificated in any category; all serial numbers; equipped with wing anti-ice telescopic tubes having part number (P/N) 5035-400 or 5035-500. Subject

(d)Air Transport Association

(ATA)of America Code 30: Ice and rain protection. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: Wing anti ice telescopic tubes (P/N [part number] 5035-400 and 5035-500) ball joints were originally designed with high temperature polymer (Kynel TM ) sealing rings. Temperature induced cracking of these rings associated with long term wear has been encountered in a small number of cases. This degradation may lead to binding of the ball joint and high swiveling forces which may result in improper operation of the leading edge slats and also in failure of the ball joint mounting bracket with possible friction on the aileron control rod, which could lead, if combined with a failure of the aileron emergency actuator, to an aileron jamming. A replacement carbon based material has been defined by the telescopic tube manufacturer Zodiac and can be applied per Zodiac Service bulletins

(FH)or 2,000 flight cycles (FC). The unsafe condition is a jammed aileron, which results in reduced controllability of the airplane. Actions and Compliance

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

(1)At the later of the compliance times specified in paragraphs (f)(1)(i) and (f)(1)(ii) of this AD, remove and modify the affected tubes in accordance with instructions contained in Zodiac Service Bulletins 5035-30-001 and 5035-30-002, both dated April 15, 2002.

(i)Before the telescopic tubes, P/N 5035-400 and 5035-500, exceed the limit of 2,400 flight hours, or 2,000 flight cycles, time-in-service since new, whichever occurs first.

(ii)At the earlier of the times specified in paragraphs (f)(1)(ii)(A) and (f)(1)(ii)(B) of this AD.

(A)Within 330 flight hours after the effective date of this AD.

(B)Within 7 months after the effective date of this AD.

(2)As of 7 months after the effective date of this AD, no person may install an affected telescopic tube P/N 5035-400 or 5035-500 in any aircraft as a replacement part, unless it has been modified in accordance with instructions contained in Zodiac Service Bulletins 5035-30-001 and 5035-30-002, both dated April 15, 2002. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

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

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

(425)227-1137; fax

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

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

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

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

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

(h)Refer to MCAI European Aviation Safety Agency

(EASA)Airworthiness Directive 2006-0276, dated September 6, 2006; and Zodiac Service Bulletins 5035-30-001 and 5035-30-002, both dated April 15, 2002; for related information. Issued in Renton, Washington, on January 24, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-1984 Filed 2-4-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0118; Directorate Identifier 2007-NM-289-AD] RIN 2120-AA64 Airworthiness Directives; Dassault Model Mystere-Falcon 50 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

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

(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

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

(425)227-1137; fax

(AD)is issued following the discovery of a risk of chafing between an electrical feeder bundle and a bus bar under the circuit breaker panel. Most of the time, this possible chafing would be dormant and would lead to an uneventful loss of segregation within the different electrical system components. However, missing segregation combined with additional electrical failures may impair flight safety. This AD mandates inspection of the electrical feeder bundle, and modification of its routing under the circuit breaker panel through implementation of modification M3093. Chafing between an electrical feeder bundle and a bus bar under the circuit breaker panel could lead to electrical arcing, which could result in smoke and fire in the cockpit. The corrective action includes repairing or replacing damaged wiring; re-routing the feeder cables above the wiring of the “Avionic Master” and “Aux Bat” relays; installing a protective sheath on the feeder cables; adding spacers to separate the bus bar wiring assemblies from the feeder cables; and adding Teflon protection on the feeder cables and securing the feeder cables with wiring retaining strips. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Dassault has issued Service Bulletin F50-483, dated June 6, 2007, including Erratum dated July 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 76 products of U.S. registry. We also estimate that it would take about 12 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $72,960, or $960 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Dassault Aviation:** Docket No. FAA-2008-0118; Directorate Identifier 2007-NM-289-AD. Comments Due Date

(a)We must receive comments by March 6, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Dassault Model Mystere-Falcon 50 airplanes, certificated in any category, serial number (S/N) 251 and S/N 253 and subsequent, without modification M3093 implemented. Subject

(d)Air Transport Association

(ATA)of America Code 24: Electrical power. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: This Airworthiness Directive

(f)Unless already done: Within 13 months after the effective date of this AD, inspect for damage of the electrical feeder bundle; repair or replace wiring, as applicable; and modify its routing as detailed in the accomplishment instructions paragraph of Dassault Service Bulletin F50-483, dated June 6, 2007, including Erratum dated July 2007. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

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

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

(425)227-1137; fax

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

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

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

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

(h)Refer to MCAI EASA Airworthiness Directive 2007-0175, dated June 28, 2007; and Dassault Service Bulletin F50-483, dated June 6, 2007, including Erratum dated July 2007, for related information. Issued in Renton, Washington, on January 24, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-1985 Filed 2-4-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0123; Directorate Identifier 2007-NM-056-AD] RIN 2120-AA64 Airworthiness Directives; McDonnell Douglas Model DC-8-11, DC-8-12, DC-8-21, DC-8-31, DC-8-32, DC-8-33, DC-8-41, DC-8-42, and DC-8-43 Airplanes; Model DC-8-51, DC-8-52, DC-8-53, and DC-8-55 Airplanes; Model DC-8F-54 and DC-8F-55 Airplanes; Model DC-8-61, DC-8-62, and DC-8-63 Airplanes; Model DC-8-61F, DC-8-62F, and DC-8-63F Airplanes; Model DC-8-71, DC-8-72, and DC-8-73 Airplanes; and Model DC-8-71F, DC-8-72F, and DC-8-73F Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive

(AD)that applies to McDonnell Douglas Model DC-8 airplanes. The existing AD currently requires, among other things, revision of an existing program of structural inspections. This proposed AD would require implementation of a program of structural inspections of baseline structure to detect and correct fatigue cracking in order to ensure the continued airworthiness of these airplanes as they approach the manufacturer's original fatigue design life goal. This proposed AD results from a significant number of these airplanes approaching or exceeding the design service goal on which the initial type certification approval was predicated. We are proposing this AD to detect and correct fatigue cracking that could compromise the structural integrity of these airplanes. DATES: We must receive comments on this proposed AD by March 21, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Jon Mowery, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone

(562)627-5322; fax

(562)627-5210. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0123; Directorate Identifier 2007-NM-056-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion On January 11, 1993, we issued AD 93-01-15, amendment 39-8469 (58 FR 5576, January 22, 1993), for McDonnell Douglas Model DC-8 airplanes. That AD requires structural inspections to detect fatigue cracking, reporting of the inspection results, and repair, as necessary, to ensure continued airworthiness as these airplanes approach the manufacturer's original fatigue design life goal. That AD resulted from new data submitted by the manufacturer indicating that additional inspections and an expanded sample size are necessary to increase the confidence level of the statistical program to ensure timely detection of cracks in the principal structural elements (PSEs). We issued that AD to prevent fatigue cracking, which could result in a compromise of the structural integrity of these airplanes. Supplemental Inspection Documents

(SIDs)ADs In the early 1980s, as part of our continuing work to maintain the structural integrity of older transport category airplanes, we concluded that the incidence of fatigue cracking may increase as these airplanes reach or exceed their design service goal (DSG). A significant number of these airplanes were approaching or had exceeded the DSG on which the initial type certification approval was predicated. In light of this, and as a result of increased utilization, longer operational lives, and the high levels of safety expected of the currently operated transport category airplanes, we determined that a supplemental structural inspection program

(SSIP)was necessary to ensure a high level of structural integrity for all airplanes in the transport fleet. Issuance of Advisory Circular

(AC)As a follow-on from that determination, we issued AC No. 91-56, “Supplemental Structural Inspection Program for Large Transport Category Airplanes,” dated May 6, 1981. That AC provides guidance material to manufacturers and operators for use in developing a continuing structural integrity program to ensure safe operation of older airplanes throughout their operational lives. This guidance material applies to transport airplanes that were certified under the fail-safe requirements of part 4b (“Airplane Airworthiness, Transport Categories”) of the Civil Air Regulations of the Federal Aviation Regulations

(FAR)(14 CFR part 25), and that have a maximum gross weight greater than 75,000 pounds. The procedures set forth in that AC are applicable to transport category airplanes operated under subpart D (“Special Flight Operations”) of part 91 of the FAR (14 CFR part 91); part 121 (“Operating Requirements: Domestic, Flag, and Supplemental Operations”); part 125 (“Certification and Operations: Airplanes having a Seating Capacity of 20 or More Passengers or a Maximum Payload of 6,000 Pounds or More”); and part 135 (“Operating Requirements: Commuter and On-Demand Operations”) of the FAR (14 CFR parts 121, 125, and 135). The objective of the SSIP was to establish inspection programs to ensure timely detection of fatigue cracking. Aging Aircraft Safety Act

(AASA)In October 1991, Congress enacted Title IV of Public Law 102-143, the AASA of 1991, to address aging aircraft concerns. That Act instructed the FAA administrator to prescribe regulations that will ensure the continuing airworthiness of aging aircraft. FAA Responses To AASA On January 25, 2005, as one of the responses to the AASA, we issued the Aging Airplane Safety; Final Rule (AASFR) (70 FR 5518, February 2, 2005). The AASFR applies to certain transport category, turbine powered airplanes with a type certificate issued after January 1, 1958 (including the airplanes that would be subject to this proposed AD), that are operated under 14 CFR parts 121 or 129, with the exception of airplanes operated within the State of Alaska. Sections 121.370a and 129.16 of the AASFR require the maintenance programs of those airplanes to include damage tolerance-based inspections and procedures for structure that is susceptible to fatigue cracking that could contribute to a catastrophic failure. The inspections and procedures must take into account the adverse affects that RAMs may have on fatigue cracking and the inspection of the structure. The procedures are to be established and incorporated before December 20, 2010. Compliance with this proposed AD also would be compliance with some aspects of the AASFR. Relevant Service Information We have reviewed Boeing Report No. L26-011, “DC-8 All Series Supplemental Inspection Document (SID),” Volume I, Revision 6, dated July 2005 (hereafter “Revision 6”). The purpose of Revision 6 is to define the mandatory inspection requirements for the PSEs and to provide specific non-destructive inspection

(NDI)techniques and procedures for each PSE. Revision 6 also revises the maintenance program by removing provisions for the sampling inspection program. However, Revision 6 retains the program goal to inspect airplanes in advance of a certain threshold for the possibility of increasing that threshold and using service history to justify delaying inspections on the younger portion of the fleet. As with previous revisions, Revision 6 provides credit for inspections previously accomplished within the required intervals. Revision 6 provides a description of PSEs, NDI locations, planning and reporting procedures, and certain criteria upon which the supplemental inspection program is based. We also have reviewed McDonnell Douglas Report No. L26-011, “DC-8 Supplemental Inspection Document (SID),” Volume II, Revision 8, dated January 2005. This document describes specific non-destructive testing inspections of the SID, and has been approved as an acceptable alternative method of compliance with corresponding paragraphs of AD 93-01-15. Accomplishing the actions specified in the service information described above is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. This proposed AD would retain certain requirements of AD 93-01-15. This proposed AD also would require revision of the FAA-approved maintenance program. This proposed AD would require implementation of a structural inspection program of baseline structure to detect and correct fatigue cracking in order to ensure the continued airworthiness of airplanes as they approach the manufacturer's original fatigue design life goal. For the purposes of this proposed AD, a PSE is defined as an element that contributes significantly to the carrying of flight, ground or pressurization loads, and the integrity of that element is essential in maintaining the overall structural integrity of the airplane. The following paragraphs summarize certain specific actions in this proposed AD: Paragraph

(h)of the proposed AD would require a revision of the maintenance inspection program that provides for inspection(s) of the PSE in accordance with Boeing Report No. L26-011, “DC-8 Supplemental Inspection Document (SID),” Volume I, Revision 6, dated July 2005. PSEs are also defined and specified in the SID. Paragraph

(i)of the proposed AD would specify that the SID be implemented on a PSE-by-PSE basis before structure exceeds its 75% fatigue life threshold ( 3/4 N TH ) and its full fatigue life threshold (N TH ). The threshold value is defined as the life of the structure measured in total landings, when the probability of failure reaches one in a billion. The DC-8 SID program is not a sampling program. Airplanes would be inspected once before reaching both PSE thresholds (once by 3/4 N TH and once by N TH ). In order for the inspection to have value, no PSE would be inspected before half of the fatigue life threshold, 1/2 N TH . The additional 3/4 N TH threshold aids in advancing the threshold for some PSEs as explained in Section 4 of Volume I of the SID. Inspection of each PSE should be done in accordance with the NDI procedures set forth in Volume II of the SID. For airplanes past the threshold N TH , the proposed AD would require that the PSE be inspected at repetitive intervals not to exceed ΔNDI/2 as specified in Section 4 of Volume I of the SID per the NDI procedure, which is specified in Volume II of the SID. The definition of ΔNDI/2 is half of the life for a crack to grow from a given NDI detectable crack size to instability. Paragraph

(i)of this proposed AD also would require, for airplanes that have exceeded the N TH , that each PSE be inspected within 18 months after the effective date of this AD. The entire PSE must be inspected regardless of whether or not it has been repaired, altered, or modified. Paragraph

(j)of this proposed AD would require that, if any PSE is repaired, altered, or modified, it must be considered a “discrepant finding.” A discrepant PSE indicates that it could not be completely inspected because the NDI procedure could not be accomplished due to differences on the airplane from the NDI reference standard (i.e., RAMs). For any discrepancy (e.g., a PSE cannot be inspected as specified in Volume II of the SID or does not match rework, repair, or modification description in Volume I of the SID), this proposed AD would require that the discrepancy be inspected in accordance with a method approved by the FAA. Paragraph

(k)of this proposed AD would require that all negative or positive findings of the inspection done in paragraph

(i)of the AD be reported to Boeing at the times specified, and per instructions contained in Section 4 of Volume I of the SID. Paragraph

(l)of this proposed AD would require that any cracked structure detected during any inspection required by paragraph

(i)of this proposed AD be repaired before further flight. Additionally, paragraph

(l)of this AD would require accomplishment of the actions as specified in paragraphs (l)(1), (l)(2), and (l)(3) of this proposed AD, at the times specified below. 1. Within 18 months after repair, accomplish a damage tolerance assessment

(DTA)that defines the threshold for inspection and submit the assessment for approval to the Manager, Los Angeles Aircraft Certification Office (ACO), FAA. 2. Before reaching 75% of the threshold, submit the inspection methods and repetitive inspections intervals for the repair for approval by the Manager of the Los Angeles ACO. 3. Before the threshold, the inspection method and repetitive inspection intervals are to be incorporated into the FAA-approved structural maintenance or inspection program for the airplane. For the purposes of this proposed AD, the FAA anticipates that submissions of the DTA of the repair, if acceptable, should be approved within six months after submission. Paragraph

(m)of this proposed AD specifies the requirements of the inspection program for transferred airplanes. Before any airplane that is subject to this proposed AD can be added to an air carrier's operations specifications, a program for the accomplishment of the inspections required by this proposed AD must be established. Paragraph

(m)of the proposed AD would require accomplishment of the following: 1. For airplanes that have been inspected per this proposed AD: The inspection of each PSE must be done by the new operator per the previous operator's schedule and inspection method, or per the new operator's schedule and inspection method, at whichever time would result in the earlier accomplishment date for that PSE inspection. The compliance time for accomplishment of this inspection must be measured from the last inspection done by the previous operator. After each inspection has been done once, each subsequent inspection must be done per the new operator's schedule and inspection method. 2. For airplanes that have not been inspected per this proposed AD: The inspection of each PSE must be done either before adding the airplane to the air carrier's operations specification, or per a schedule and an inspection method approved by the FAA. After each inspection has been performed once, each subsequent inspection must be done per the new operator's schedule. Accomplishment of these actions will ensure that:

(1)An Operator's newly acquired airplanes comply with its SSIP before being operated; and

(2)frequently transferred airplanes are not permitted to operate without accomplishment of the inspections defined in the SID. Paragraph

(n)of this proposed AD specifies that repairs and inspection/replacement programs done before the effective date in accordance with McDonnell Douglas Report No. MDC 91K0262, “DC-8 Aging Aircraft Repair Assessment Program Document,” Revision 1, dated October 2000; are acceptable for compliance with the requirements of paragraphs

(g)and

(l)of this proposed AD. Differences Between the Proposed AD and the SID The SID specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways: • Using a method that we approve; or • Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings. Change to Existing AD This proposed AD would retain all requirements of AD 93-01-15. Since AD 93-01-15 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table: Revised Paragraph Identifiers Requirement in AD 93-01-15 Corresponding requirement in this proposed AD paragraph

(b)paragraph (f). paragraph

(c)paragraph (g). Costs of Compliance There are about 194 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. Estimated Costs Action Work hours Average labor rate per hour Cost per operator Number of U.S.-registered airplanes Fleet cost Revision of maintenance inspection program (required by AD 93-01-15) 544 per operator (17 U.S. operators) $80 $43,520 131 $739,840 Revision of maintenance program and inspections (new proposed actions) 250 per operator (17 U.S. operators) 80 20,000 131 340,000 The number of inspection work hours, as indicated above, is presented as if the accomplishment of the actions in this proposed AD is to be conducted as “stand alone” actions. However, in actual practice, these actions for the most part will be done coincidentally or in combination with normally scheduled airplane inspections and other maintenance program tasks. Therefore, the actual number of necessary additional inspection work hours will be minimal in many instances. Additionally, any costs associated with special airplane scheduling will be minimal. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by removing amendment 39-8469 (58 FR 5576, January 22, 1993) and adding the following new airworthiness directive (AD): **McDonnell Douglas:** Docket No. FAA-2008-0123; Directorate Identifier 2007-NM-056-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by March 21, 2008. Affected ADs

(b)This AD supersedes AD 93-01-15. Applicability

(c)This AD applies to all McDonnell Douglas airplanes identified in Table 1 of this AD, certificated in any category. Table 1.—Applicability Model

(1)DC-8-11, DC-8-12, DC-8-21, DC-8-31, DC-8-32, DC-8-33, DC-8-41, DC-8-42, and DC-8-43 airplanes.

(2)DC-8-51, DC-8-52, DC-8-53, and DC-8-55 airplanes.

(3)DC-8F-54 and DC-8F-55 airplanes.

(4)DC-8-61, DC-8-62, and DC-8-63 airplanes.

(5)DC-8-61F, DC-8-62F, and DC-8-63F airplanes.

(6)DC-8-71, DC-8-72, and DC-8-73 airplanes.

(7)DC-8-71F, DC-8-72F, and DC-8-73F airplanes. Unsafe Condition

(d)This AD results from a significant number of these airplanes approaching or exceeding the design service goal on which the initial type certification approval was predicated. We are issuing this AD to detect and correct fatigue cracking that could compromise the structural integrity of these airplanes. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Certain Requirements of AD 93-01-15 Revise the FAA-Approved Maintenance Inspection Program

(f)Within 6 months after February 26, 1993 (the effective date of AD 93-01-15), incorporate a revision of the FAA-approved maintenance inspection program that provides no less than the required inspection of the Principal Structural Elements (PSE's) defined in Sections 2 and 3 of Volume I of McDonnell Douglas Report No. L26-011, “DC-8 Supplemental Inspection Document (SID),” dated March 1991, in accordance with Section 2 of Volume III-91, dated April 1991, of that document. The non-destructive inspection techniques set forth in Sections 2 and 3 of Volume II, dated March 1991, of that SID provide acceptable methods for accomplishing the inspections required by this AD. All inspection results, negative or positive, must be reported to McDonnell Douglas, in accordance with the instructions of Section 2 of Volume III-91 of the SID. Information collection requirements contained in this regulation have been approved by the OMB under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 *et seq.* ) and have been assigned OMB Control Number 2120-0056. Corrective Action

(g)Cracked structure detected during the inspections required by paragraph

(f)of this AD must be repaired before further flight, in accordance with a method approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA, Transport Airplane Directorate. New Requirements of This AD Revision of the Maintenance Inspection Program

(h)Within 12 months after the effective date of this AD, incorporate a revision of the FAA-approved maintenance inspection program that provides for inspection(s) of the PSEs, in accordance with Boeing Report No. L26-011, “DC-8 All Series Supplemental Inspection Document (SID),” Volume I, Revision 6, dated July 2005. Incorporation of this revision ends the requirements of paragraphs

(f)and

(g)of this AD. Non-Destructive Inspections

(i)For all PSEs listed in Section 2 of Boeing Report No. L26-011, “DC-8 All Series Supplemental Inspection Document (SID),” Volume I, Revision 6, dated July 2005, perform an NDI for fatigue cracking of each PSE, in accordance with the NDI procedures specified in Section 2 of McDonnell Douglas Report No. L26-011, “DC-8 Supplemental Inspection Document (SID),” Volume II, Revision 8, dated January 2005, at the times specified in paragraph (i)(1), (i)(2), or (i)(3) of this AD, as applicable.

(1)For airplanes that have less than three quarters of the fatigue life threshold ( 3/4 N TH ) as of the effective date of this AD: Perform the NDI for fatigue cracking at the times specified in paragraphs (i)(1)(i) and (i)(1)(ii) of this AD. After reaching the threshold (N TH ), repeat the inspection for that PSE at intervals not to exceed ΔNDI/2.

(i)Perform an initial NDI no earlier than one-half of the threshold ( 1/2 N TH ) but before reaching three-quarters of the threshold ( 3/4 N TH ), or within 60 months after the effective date of this AD, whichever occurs later.

(ii)Repeat the NDI no earlier than 3/4 N TH but before reaching the threshold (N TH ), or within 18 months after the inspection required by paragraph (i)(1)(i) of this AD, whichever occurs later. Note 1: The DC-8 SID and this AD refer to the repetitive inspection interval as ΔNDI/2. However, the headings of the tables in Section 4 of Volume I of the DC-8 SID refer to the repetitive inspection interval of NDI/2. The values listed under NDI/2 in the tables in Section 4 of Volume I of the DC-8 SID are the repetitive inspection intervals, ΔNDI/2.

(2)For airplanes that have reached or exceeded three-quarters of the fatigue life threshold ( 3/4 N TH ), but less than the threshold (N TH ), as of the effective date of this AD: Perform an NDI before reaching the threshold (N TH ), or within 18 months after the effective date of this AD, whichever occurs later. Thereafter, after passing the threshold (N TH ), repeat the inspection for that PSE at intervals not to exceed ΔNDI/2.

(3)For airplanes that have reached or exceeded the fatigue life threshold (N TH ) as of the effective date of this AD: Perform an NDI within 18 months after the effective date of this AD. Thereafter, repeat the inspection for that PSE at intervals not to exceed ΔNDI/2. Discrepant Findings

(j)If any discrepancy ( *e.g.* , differences on the airplane from the NDI reference standard, such as PSEs that cannot be inspected as specified in McDonnell Douglas Report No. L26-011, “DC-8 Supplemental Inspection Document (SID),” Volume II, Revision 8, dated January 2005, or do not match rework, repair, or modification descriptions in Boeing Report No. L26-011, “DC-8 All Series Supplemental Inspection Document (SID),” Volume I, Revision 6, dated July 2005) is detected during any inspection required by paragraph

(i)of this AD, do the action specified in paragraph (j)(1) or (j)(2) of this AD, as applicable.

(1)If a discrepancy is detected during any inspection done before 3/4N TH or N TH : The area of the PSE affected by the discrepancy must be inspected before N TH or within 18 months after the discovery of the discrepancy, whichever occurs later, in accordance with a method approved by the Manager, Los Angeles ACO.

(2)If a discrepancy is detected during any inspection done after N TH : The area of the PSE affected by the discrepancy must be inspected before the accumulation of an additional ΔNDI/2 or within 18 months after the discovery of the discrepancy, whichever occurs later, in accordance with a method approved by the Manager, Los Angeles ACO. Reporting Requirements

(k)All negative or positive findings of the inspections done in accordance with paragraph

(i)of this AD must be reported to Boeing at the times specified in, and in accordance with, the instructions contained in Section 4 of Boeing Report No. L26-011, “DC-8 All Series Supplemental Inspection Document (SID),” Volume I, Revision 6, dated July 2005. Information collection requirements contained in this regulation have been approved by the Office of Management and Budget

(OMB)under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 *et seq.* ) and have been assigned OMB Control Number 2120-0056. Corrective Actions

(l)Any cracked structure of a PSE detected during any inspection required by paragraph

(i)of this AD must be repaired before further flight using a method approved in accordance with the procedures specified in paragraph

(o)of this AD. Accomplish the actions described in paragraphs (l)(1), (l)(2), and (l)(3) of this AD, at the times specified.

(1)Within 18 months after repair, do a damage tolerance assessment

(DTA)that defines the threshold for inspection of the repair and submit the assessment for approval.

(2)Before reaching 75% of the repair threshold as determined in paragraph (l)(1) of this AD, submit the inspection methods and repetitive inspection intervals for the repair for approval.

(3)Before the repair threshold, as determined in paragraph (l)(1) of this AD, incorporate the inspection method and repetitive inspection intervals into the FAA-approved structural maintenance or inspection program for the airplane. Note 2: For the purposes of this AD, we anticipate that submissions of the DTA of the repair, if acceptable, should be approved within 6 months after submission. Note 3: FAA Order 8110.54, “Instructions for Continued Airworthiness,” dated July 1, 2005, provides additional guidance about the approval of repairs to PSEs. Inspection for Transferred Airplanes

(m)Before any airplane that has exceeded the fatigue life threshold (N TH ) can be added to an air carrier's operations specifications, a program for the accomplishment of the inspections required by this AD must be established as specified in paragraph (m)(1) or (m)(2) of this AD, as applicable.

(1)For airplanes that have been inspected in accordance with this AD: The inspection of each PSE must be done by the new operator in accordance with the previous operator's schedule and inspection method, or the new operator's schedule and inspection method, at whichever time would result in the earlier accomplishment date for that PSE inspection. The compliance time for accomplishing this inspection must be measured from the last inspection done by the previous operator. After each inspection has been done once, each subsequent inspection must be done in accordance with the new operator's schedule and inspection method.

(2)For airplanes that have not been inspected in accordance with this AD: The inspection of each PSE required by this AD must be done either before adding the airplane to the air carrier's operations specification, or in accordance with a schedule and an inspection method approved by the Manager, Los Angeles ACO. After each inspection has been done once, each subsequent inspection must be done in accordance with the new operator's schedule. Acceptable for Compliance

(n)McDonnell Douglas Report No. MDC 91K0262, “DC-8 Aging Aircraft Repair Assessment Program Document,” Revision 1, dated October 2000, provides inspection/replacement programs for certain repairs to the fuselage pressure shell. Accomplishing these repairs and inspection/replacement programs before the effective date of this AD is considered acceptable for compliance with the requirements of paragraphs

(g)and

(l)of this AD for repairs subject to that document. Alternative Methods of Compliance (AMOCs) (o)(1) The Manager, Los Angeles ACO, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

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

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

(3)An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Los Angeles ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane and 14 CFR 25.571, Amendment 45, and the approval must specifically refer to this AD.

(4)AMOCs approved previously in accordance with AD 93-01-15 are approved as AMOCs for the corresponding provisions of this AD. Issued in Renton, Washington, on January 24, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-1989 Filed 2-4-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0120; Directorate Identifier 2007-NM-327-AD] RIN 2120-AA64 Airworthiness Directives; Gulfstream Aerospace LP Model Gulfstream G150 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Possible chafing between [the] electrical feeder cable connected to contactor 123P/2 and ground point 803GND, installed within the left DC power box, discovered during routine receiving inspection. This condition may exist on boxes installed on in-service aircraft. If this chafing condition is left unattended, an electrical short may develop, leading to disconnection of the battery and battery bus from the electrical system of the aircraft, [which could result in] overheating, arcing, smoke and fire. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by March 6, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*

(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

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

(425)227-2677; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0120; Directorate Identifier 2007-NM-327-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Civil Aviation Authority of Israel (CAAI), which is the aviation authority for Israel, has issued Israeli Airworthiness Directive 24-07-10-11, dated October 31, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Possible chafing between [the] electrical feeder cable connected to contactor 123P/2 and ground point 803GND, installed within the left DC power box, discovered during routine receiving inspection. This condition may exist on boxes installed on in-service aircraft. If this chafing condition is left unattended, an electrical short may develop, leading to disconnection of the battery and battery bus from the electrical system of the aircraft, [which could result in] overheating, arcing, smoke and fire. The corrective action includes inspecting for chafing and arcing damage of the feeder cable terminal lug and ground point, contacting Gulfstream for repair if any damage is found, and repairing, and installing new heat-shrink tubing if the tubing is missing or damaged, and repositioning the feeder cable. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Gulfstream has issued Alert Service Bulletin 150-24A-046, dated October 31, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 26 products of U.S. registry. We also estimate that it would take about 3 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $6,240, or $240 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Gulfstream Aerospace LP (Formerly Israel Aircraft Industries, Ltd.):** Docket No. FAA-2008-0120; Directorate Identifier 2007-NM-327-AD. Comments Due Date

(a)We must receive comments by March 6, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Gulfstream Model Gulfstream G150 airplanes, certificated in any category, serial numbers 201 through 239 inclusive. Subject

(d)Air Transport Association

(ATA)of America Code 24: Electrical power. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: “Possible chafing between [the] electrical feeder cable connected to contactor 123P/2 and ground point 803GND, installed within the left DC power box, discovered during routine receiving inspection. This condition may exist on boxes installed on in-service aircraft. If this chafing condition is left unattended, an electrical short may develop, leading to disconnection of the battery and battery bus from the electrical system of the aircraft, [which could result in] overheating, arcing, smoke and fire.” The corrective action includes inspecting for chafing and arcing damage of the feeder cable terminal lug and ground point, contacting Gulfstream for repair if any damage is found, and repairing, and installing new heat-shrink tubing if the tubing is missing or damaged, and repositioning the feeder cable. Actions and Compliance

(f)Unless already done, do the following actions. Within 50 flight hours or 30 days after the effective date of this AD, whichever occurs first, inspect the feeder cable, terminal lug 123P/2, and ground point 803GND for chafing and arcing damage, reposition the feeder cable to maintain an adequate gap, and do all applicable corrective actions. Do the actions in accordance with Gulfstream Alert Service Bulletin 150-24A-046, dated October 31, 2007. Do all applicable corrective actions before further flight. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

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

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

(425)227-2677; fax

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

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

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

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

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

(h)Refer to MCAI CAAI Airworthiness Directive 24-07-10-11, dated October 31, 2007, and Gulfstream Alert Service Bulletin 150-24A-046, dated October 31, 2007, for related information. Issued in Renton, Washington, on January 24, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-1988 Filed 2-4-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0117; Directorate Identifier 2007-NM-273-AD] RIN 2120-AA64 Airworthiness Directives; Fokker Model F.28 Mark 0070 and Mark 0100 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: [L]eakage of hot wing anti-icing air from the Peri-seal housing. This results in an uncontrolled flow of high-pressure hot air to enter the forward (anti-icing) plenum chamber of the wing leading edge, potentially damaging the anti-icing barrier webs. Subsequently, the wing auxiliary spar can also be damaged by high-pressure hot air. * * * [D]eterioration of the Peri-seals enables the piccolo tubes to vibrate, resulting in a broken piccolo tube. This condition, if not corrected, may cause heat damage to the front spar that potentially affects the wing's load capability. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by March 6, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*

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

(425)227-1137; fax

(CSB)D14000-57-007, for spare wing leading edge sections that may still contain the 460-series Peri-seals. For that reason, this EASA AD retains the requirements of AD NL-2006-011 and adds a limit for the allowed use of unmodified wing leading edge section as replacement part. The corrective actions include inspection of the piccolo tubes and the wing leading edge for damage and replacement of the Peri-seals or repair of damage, as applicable. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Fokker has issued Service Bulletin SBF100-30-028, Revision 1, dated April 17, 2007, and Component Service Bulletin D14000-57-007, dated April 17, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 9 products of U.S. registry. We also estimate that it would take about 48 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $3,430 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $65,430, or $7,270 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—Airworthiness Directives 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Fokker Services B.V.:** Docket No. FAA-2008-0117; Directorate Identifier 2007-NM-273-AD. Comments Due Date

(a)We must receive comments by March 6, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Fokker Model F.28 Mark 0070 and Mark 0100 airplanes, certificated in any category, all serial numbers, except those previously modified in accordance with Fokker Service Bulletin SBF 100-30-022. Subject

(d)Air Transport Association

(ATA)of America Code 30: Ice and Rain Protection. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: In 1997, Fokker introduced a new type of Peri-seal (SBF 100-30-022). The old type was known to be subject to deterioration, which, in combination with improper installation, can cause leakage of hot wing anti-icing air from the Peri-seal housing. This results in an uncontrolled flow of high-pressure hot air to enter the forward (anti-icing) plenum chamber of the wing leading edge, potentially damaging the anti-icing barrier webs. Subsequently, the wing auxiliary spar can also be damaged by high-pressure hot air. Analysis at the time showed that any resulting damage (known to occur at inboard positions only) would not affect the wing load capability. For this reason, the modification was not classified as MANDATORY and no AD action was warranted. However, through a recent occurrence, it was discovered that deterioration of the Peri-seals enables the piccolo tubes to vibrate, resulting in a broken piccolo tube. In this case, the location of the failure was more outboard than previous occurrences. This condition, if not corrected, may cause heat damage to the front spar that potentially affects the wing's load capability. Since an unsafe condition was identified, likely to exist or develop on an aircraft of this type design, CAA (Civil Aviation Authority) Netherlands issued AD NL-2006-011 to require inspection of the Piccolo Tubes and the surrounding structure to establish correct installation, as well as the replacement of the 460-series Peri-seals by the improved 600-series, which have a higher temperature limit. Since the issuance of that AD, Fokker has developed a modification, published as Component Service Bulletin

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

(1)Within 4,000 flight hours or 12 months after the effective date of this AD, whichever occurs first, do the actions in paragraphs (f)(1)(i) and (f)(1)(ii) of this AD in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-30-028, Revision 1, dated April 17, 2007.

(i)Inspect for damage of the piccolo tubes and the wing leading edge on the outside and on the inside at the access panels. If any damage is found that is beyond the limits specified in the service bulletin, repair before further flight.

(ii)Replace the 460-series Peri-seals in the riblets with improved 600-series Peri-seals.

(2)As of 12 months after the effective date of this AD, no person may install on any airplane a spare wing leading edge section unless the leading edge section has been modified in accordance with Fokker Component Service Bulletin D14000-57-007, dated April 17, 2007.

(3)Actions done before the effective date of this AD in accordance with Fokker Service Bulletin SBF100-30-028, dated May 18, 2006, are considered acceptable for compliance with the actions required by paragraph (f)(1) of this AD. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

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

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

(425)227-1137; fax

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

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

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

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

(h)Refer to European Aviation Safety Agency

(EASA)Airworthiness Directive 2007-0229, dated August 15, 2007, Fokker Service Bulletin SBF100-30-028, Revision 1, dated April 17, 2007, and Fokker Component Service Bulletin D14000-57-007, dated April 17, 2007, for related information. Issued in Renton, Washington, on January 24, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-1991 Filed 2-4-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0119; Directorate Identifier 2007-NM-304-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 170 Airplanes and Model ERJ 190 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive

(AD)that applies to all EMBRAER Model ERJ 170-100 LR, -100 SE, -100 STD, and -100 SU airplanes; and Model ERJ 190-100 IGW, -100 LR, and -100 STD airplanes. The existing AD currently requires revising the Limitations section of the airplane flight manual

(AFM)to prohibit the flightcrew from moving the throttle into the forward thrust range immediately after applying the thrust reverser. This proposed AD would add additional airplanes to the applicability and would require the AFM revision for those additional airplanes. For certain airplanes, this proposed AD would also require installing new, improved full-authority digital engine-control (FADEC) software. This proposed AD results from a report that, during landing, the thrust reverser may not re-stow completely if the throttle lever is moved into the forward thrust range immediately after the thrust reverser is applied. We are proposing this AD to prevent the flightcrew from performing a takeoff with a partially deployed thrust reverser, which could result in reduced controllability of the airplane. DATES: We must receive comments on this proposed AD by March 6, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal* : Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-2125; fax

(AFM)to prohibit the flightcrew from moving the throttle into the forward thrust range immediately after applying the thrust reverser. That AD resulted from a report that, during landing, the thrust reverser may not re-stow completely if the throttle lever is moved into the forward thrust range immediately after the thrust reverser is applied. We issued that AD to prevent the flightcrew from performing a takeoff with a partially deployed thrust reverser, which could result in reduced controllability of the airplane. Actions Since Existing AD Was Issued The preamble to AD 2006-11-15 explains that we consider the requirements “interim action” and were considering further rulemaking. We now have determined that further rulemaking is indeed necessary, and this proposed AD follows from that determination. The Agência Nacional de Aviação Civil (ANAC), which is the airworthiness authority for Brazil, has determined that new, improved full-authority digital engine-control (FADEC) software must be installed on certain airplanes to adequately address the unsafe condition. Since we issued AD 2006-11-15, we have type certificated EMBRAER Model ERJ 170-200 LR, -200 STD, and -200 SU airplanes; and Model ERJ 190-200 IGW, -200 LR, and -200 STD airplanes for operation in the U.S. Therefore, the AFM revision required by AD 2006-11-15 should also apply to those additional airplanes. Relevant Service Information EMBRAER has issued the following service bulletins: • EMBRAER Service Bulletin 170-73-0003, Revision 01, dated September 4, 2006, for Model ERJ 170-100 LR, -100 SE, -100 STD, -100 SU, -200 LR, -200 STD, and -200 SU airplanes; • EMBRAER Service Bulletin 190-73-0005, dated November 9, 2006, for a Model ERJ 190-200 LR airplane; and • EMBRAER Service Bulletin 190-73-0009, Revision 01, dated April 23, 2007, for Model ERJ 190-100 IGW, -100 LR, -100 STD, -200 IGW, -200 LR, and -200 STD airplanes. The service bulletins describe procedures for installing new, improved FADEC software having a certain version or higher. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The ANAC mandated the service information and issued Brazilian airworthiness directive 2006-03-02R1, effective February 27, 2007; and Brazilian airworthiness directive 2006-03-03R1, effective November 9, 2007; to ensure the continued airworthiness of these airplanes in Brazil. FAA's Determination and Requirements of the Proposed AD These airplanes are manufactured in Brazil and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the ANAC has kept the FAA informed of the situation described above. We have examined the ANAC's findings, evaluated all pertinent information, and determined that AD action is necessary for airplanes of this type design that are certificated for operation in the United States. This proposed AD would supersede AD 2006-11-15 and would retain the requirements of the existing AD. This proposed AD would also add Model ERJ 170-200 LR, -200 STD, and -200 SU airplanes; and Model ERJ 190-200 IGW, -200 LR, and -200 STD airplanes to the applicability and would require the AFM revision for those additional airplanes. This proposed AD would also require accomplishing the actions specified in the service information described previously. Costs of Compliance The following table provides the estimated costs, at an average labor rate of $80 per hour, for U.S. operators to comply with this proposed AD. Estimated Costs Action Work hours Parts Cost per airplane Number of U.S.- registered airplanes Fleet cost AFM revision (required by AD 2006-11-15) 1 None $80 76 $6,080 AFM revision (new proposed action) 1 None 80 57 4,560 Software installation (new proposed action) 1 The manufacturer states that it will supply the required software to operators at no cost 80 133 10,640 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by removing amendment 39-14619 (71 FR 30577, May 30, 2006) and adding the following new airworthiness directive (AD): **Empresa Brasileira De Aeronautica S.A. (EMBRAER):** Docket No. FAA-2008-0119; Directorate Identifier 2007-NM-304-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by March 6, 2008. Affected ADs

(b)This AD supersedes AD 2006-11-15. Applicability

(c)This AD applies to all EMBRAER Model ERJ 170-100 LR, -100 SE, -100 STD, -100 SU, -200 LR, -200 STD, and -200 SU airplanes; and Model ERJ 190-100 IGW, -100 LR, -100 STD, -200 IGW, -200 LR, and -200 STD airplanes; certificated in any category. Unsafe Condition

(d)This AD results from report that, during landing, the thrust reverser may not re-stow completely if the throttle lever is moved into the forward thrust range immediately after the thrust reverser is applied. We are issuing this AD to prevent the flightcrew from performing a takeoff with a partially deployed thrust reverser, which could result in reduced controllability of the airplane. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Restatement of Requirements of AD 2006-11-15 Airplane Flight Manual Revision

(f)For Model ERJ 170-100 LR, -100 SE, -100 STD, and -100 SU airplanes; and Model ERJ 190-100 IGW, -100 LR, -100 STD airplanes: Within 7 days after June 14, 2006 (the effective date of AD 2006-11-15), revise the Limitations section of the EMBRAER 170/190 Airplane Flight Manual

(AFM)to include the following statement. This may be done by inserting a copy of this AD in the AFM. Factory-installation or installation of the applicable software required by paragraph

(h)of this AD terminates the AFM revision required by this paragraph. “After applying thrust reverser, do not move the throttle back to the forward thrust range, unless the REV icon on the EICAS is shown in amber or green.” Note 1: When a statement identical to that in paragraph

(f)of this AD has been included in the general revisions of the AFM, the general revisions may be inserted into the AFM, and the copy of this AD may be removed from the AFM. New Requirements of This AD AFM Revision for New Airplanes

(g)For Model ERJ 170-200 LR, -200 STD, and -200 SU airplanes; and Model ERJ 190-200 IGW, -200 LR, and -200 STD airplanes: Within 14 days after the effective date of this AD, revise the Limitations section of the EMBRAER 170/190 AFM to include the following statement. This may be done by inserting a copy of this AD in the AFM. Factory-installation or installation of the applicable software required by paragraph

(g)of this AD has been included in the general revisions of the AFM, the general revisions may be inserted into the AFM, and the copy of this AD may be removed from the AFM. Software Installation

(h)Within 1,200 flight hours after the effective date of this AD, install the full-authority digital engine-control (FADEC) software specified in paragraph (h)(1), (h)(2), or (h)(3) of this AD, as applicable. Installing the applicable software terminates the applicable AFM revision required by paragraph

(f)or

(g)this AD.

(1)For Model ERJ 170-100 LR, -100 SE, -100 STD, -100 SU, -200 LR, -200 STD, and -200 SU airplanes identified in EMBRAER Service Bulletin 170-73-0003, Revision 01, dated September 4, 2006: Install engine FADEC software version 5.30 or higher in accordance with the service bulletin.

(2)For the Model ERJ 190-200 LR airplane identified in EMBRAER Service Bulletin 190-73-0005, dated November 9, 2006: Install engine FADEC software version 5.10 or higher in accordance with the service bulletin.

(3)For Model ERJ 190-100 IGW, -100 LR, -100 STD, -200 IGW, -200 LR, and -200 STD airplanes identified in EMBRAER Service Bulletin 190-73-0009, Revision 01, dated April 23, 2007: Install engine FADEC software version 5.20 or higher in accordance with the service bulletin. Alternative Methods of Compliance (AMOCs) (i)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

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

(j)Brazilian airworthiness directive 2006-03-02R1, effective February 27, 2007; and Brazilian airworthiness directive 2006-03-03R1, effective November 9, 2007; also address the subject of this AD. Issued in Renton, Washington, on January 24, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-1990 Filed 2-4-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-26490; Directorate Identifier 2006-CE-075-AD] RIN 2120-AA64 Airworthiness Directives; Alpha Aviation Design Limited (Type Certificate No. A48EU Previously Held by APEX Aircraft and AVIONS PIERRE ROBIN) Model R2160 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of the comment period. SUMMARY: We are revising an earlier NPRM for the products listed above. This proposed AD results from mandatory continuing airworthiness information

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: To prevent failure of the wing structure and assembly components due to undetected fatigue and corrosion * * * The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by March 6, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:*

(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Karl Schletzbaum, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4146; fax:

(TIS)of new bolts, and thereafter, repetitively inspect every 750 hours. We will add a periodic 750 hours TIS inspection to paragraph (f)(2) of the proposed AD. Comment Issue No. 4: Revise the Labor Rate Mr. Martindale states that labor rates in the southern California area are $100 per work-hour or more and not the estimated $80 per work-hour used in the NPRM. He also notes that the majority of currently registered aircraft are located in California; thus, the estimated cost of compliance is understated. Mr. Martindale recommends that we use a rate of at least $100 per work-hour. We are not allowed to accept this recommendation. The U.S. Office of Personnel Management

(OPM)established the average labor rates based on an average of the national rate. The rate of $80 per work-hour is the current rate provided by OPM and is the rate the FAA must use for all AD actions. We are not changing the cost of compliance as a result of this comment. Comment Issue No. 5: Costs of Compliance Are Understated Mr. Martindale states that the costs of compliance do not consider other factors that drive up the costs to do the proposed AD actions. He recommends that we revise the estimated cost of compliance to include not only parts and labor costs but to also include the estimated cost of procuring or fabricating ground support equipment that enable the required work to be performed in a safe manner. The AD should also address in the estimated cost of compliance the financial risk to operators due to the unavailability of required ground support equipment and/or to the unavailability of mechanics with sufficient experience on the affected aircraft model to perform the required tasks. The FAA estimates the cost of the AD action based on approximate work-hours and cost of parts. We have no way of determining the cost an individual operator would incur in obtaining proper tooling. We are not changing the cost of compliance as a result of this comment. FAA's Determination and Requirements of the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Certain changes described above expand the scope of the earlier NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on the proposed AD. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a **Note** within the proposed AD. Costs of Compliance We estimate that this proposed AD will affect 9 products of U.S. registry. We also estimate that it will take about 15 work-hours per product to comply with basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts will cost about $1,326 per product. Based on these figures, we estimate the cost of this proposed AD to the U.S. operators to be $22,734 or $2,526 per product. We have no way to determine what aircraft will need replacement parts that may be required based on the results of any inspection. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Alpha Aviation Design Limited (Type Certificate No. A48EU previously held by Apex Aircraft and AVIONS PIERRE ROBIN):** Docket No. FAA-2006-26490; Directorate Identifier 2006-CE-075-AD. Comments Due Date

(a)We must receive comments by March 6, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Model R2160 airplanes, serial numbers 001 through 378, certificated in any category. Subject

(d)Air Transport Association of America

(ATA)Code: 57: Wings. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: To prevent failure of the wing structure and assembly components due to undetected fatigue and corrosion * * * The MCAI requires that you inspect the wing structure and fuselage attachment and repair any defects that you find. Actions and Compliance

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

(1)Disassemble the wings from the fuselage and inspect the wing structure and assembly components using instruction No. 1 in Robin Aviation Service Bulletin No. 123, revision 3, dated December 23, 1999. If any defects are found, repair following Robin Aviation Service Bulletin No. 123, revision 3, dated December 23, 1999. Use the following compliance times for the inspection:

(i)*For airplanes with less than 4,000 hours time-in-service (TIS):* When the airplane reaches a total of 3,500 hours TIS or within the next 100 hours TIS after the effective date of this AD, whichever occurs later, and thereafter at intervals not to exceed 750 hours TIS.

(ii)*For airplanes with 4,000 hours TIS or more that have not complied with the special instruction in paragraph E of Avions Pierre Robin Service Bulletin No. 123, revision 2, dated November 14, 1995:* Within the next 100 hours TIS after the effective date of this AD and thereafter at intervals not to exceed 750 hours TIS.

(iii)*For airplanes with 4,000 hours TIS or more that have complied with the special instruction in paragraph E of Avions Pierre Robin Service Bulletin No. 123, revision 2, dated November 14, 1995:* Within the next 750 hours TIS after the effective date of this AD and thereafter at intervals not to exceed 750 hours TIS.

(2)When the airplane reaches a total of 3,500 hours TIS with original wing-to-fuselage bolts installed or 3,500 hours TIS of an airplane since new bolts have been installed or within the next 100 hours TIS after the effective date of this AD, whichever occurs later, do a non-destructive inspection of the wing-to-fuselage retaining bolts and replace any bolts that do not pass this inspection following instruction No. 2 in Robin Aviation Service Bulletin No. 123, revision 3, dated December 23, 1999. Thereafter, repetitively inspect wing-to-fuselage retaining bolts and replace any bolts that do not pass this inspection every 750 hours TIS following instruction No. 2 in Robin Aviation Service Bulletin No. 123, revision 3, dated December 23, 1999. Note 1: The requirement for a 3,500-hour inspection is a time since new or time since installation (that is, the TIS of new bolts).

(3)Within the next 50 hours TIS after re-assembling the wing and thereafter at intervals not to exceed 100 hours TIS, inspect the wing-to-fuselage retaining bolts for correct torque settings following instruction No. 3 in Robin Aviation Service Bulletin No. 123, revision 3, dated December 23, 1999. The required torque value is 22 ft-lb with nut part number 95.24.39.010. Tighten to 16 ft-lb (pre-loading) and then torque from 16 to 22 ft-lb. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

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

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

(816)329-4146; fax:

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

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

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

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

(h)Refer to MCAI Civil Aviation Authority AD DCA/R2000/28, dated September 28, 2006, and Robin Aviation Mandatory Service Bulletin No. 123, revision 3, dated December 23, 1999, for related information. Issued in Kansas City, Missouri, on January 30, 2008. John Colomy, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-2047 Filed 2-4-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0136; Directorate Identifier 2007-CE-104-AD] RIN 2120-AA64 Airworthiness Directives; Pacific Aerospace Limited Model 750XL Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as 1/8 -inch rivets installed in place of the correct 5/32 -inch rivets that secure the horizontal tail surface load transfer angles to the rearmost fuselage frame at Station 384.62 (Corrected from 369.62 per notification from the Civil Aviation Authority of New Zealand). The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by March 6, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*

(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone

(816)329-4146; fax:

(816)329-4090. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0136; Directorate Identifier 2007-CE-104-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Civil Aviation Authority (CAA), which is the airworthiness authority for New Zealand, has issued AD DCA/750XL/4, effective date: September 30, 2004 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI describes the unsafe condition as 1/8 -inch rivets installed in place of the correct 5/32 -inch rivets that secure the horizontal tail surface load transfer angles to the rearmost fuselage frame at Station 384.62 (Corrected from 369.62 per notification from the Civil Aviation Authority of New Zealand). The MCAI requires you to inspect for the correct size rivets and if the wrong size rivets are installed, replace the rivets with the correct size rivets. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Pacific Aerospace Corporation Limited has issued Mandatory Service Bulletin No. PACSB/XL/010, dated: July 23, 2004. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 7 products of U.S. registry. We also estimate that it would take about .5 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $280, or $40 per product. In addition, we estimate that any necessary follow-on actions would take about 2 work-hours and require parts costing $10, for a cost of $170 per product. We have no way of determining the number of products that may need these actions. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Pacific Aerospace Limited:** Docket No. FAA-2008-0136; Directorate Identifier 2007-CE-104-AD. Comments Due Date

(a)We must receive comments by March 6, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to 750XL airplanes, serial numbers 101 through 108, certificated in any category. Subject

(d)Air Transport Association of America

(ATA)Code 51: Structures. Reason

(e)The MCAI describes the unsafe condition as 1/8 -inch rivets installed in place of the correct 5/32 -inch rivets that secure the horizontal tail surface load transfer angles to the rearmost fuselage frame at Station 384.62 (Corrected from 369.62 per notification from the Civil Aviation Authority of New Zealand). The MCAI requires you to inspect for the correct size rivets and if the wrong size rivets are installed, replace the rivets with the correct size rivets. Actions and Compliance

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

(1)Within 100 hours time-in-service

(TIS)after the effective date of this AD, inspect to ensure that 1/8 -inch rivets are not installed in place of the correct 5/32 -inch rivets that secure the horizontal tail surface load transfer angles to the rearmost fuselage frame at Station 384.62 following Pacific Aerospace Corporation Limited Mandatory Service Bulletin No. PACSB/XL/010, dated: July 23, 2004.

(2)Before further flight, if you find undersized rivets are installed as a result of the inspection required by paragraph (f)(1) of this AD, replace the undersized rivets with the correct 5/32 -inch rivets following Pacific Aerospace Corporation Limited Service Mandatory Bulletin No. PACSB/XL/010, dated: July 23, 2004. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: An official of The New Zealand Civil Aviation Authority confirms that the MCAI should reference Station 384.62. Other FAA AD Provisions

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

(816)329-4146; fax:

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

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

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

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

(h)Refer to MCAI Civil Aviation Authority of New Zealand AD DCA/750XL/4, effective date: September 30, 2004; and Pacific Aerospace Corporation Limited Mandatory Service Bulletin No. PACSB/XL/010, dated: July 23, 2004, for related information. Issued in Kansas City, Missouri, on January 29, 2008. John Colomy, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-2046 Filed 2-4-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0169; Directorate Identifier 2007-NE-45-AD] RIN 2120-AA64 Airworthiness Directives; Rolls-Royce Deutschland Ltd & Co KG, BR700-715A1-30, BR700-715B1-30, and BR700-715C1-30 Turbofan Engines AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

(MCAI)issued by another country to identify and correct an unsafe condition on Rolls-Royce Deutschland Ltd & Co KG, BR700-715A1-30, BR700-715B1-30, and BR700-715C1-30 turbofan engines. The MCAI states the following: The application of most recent 3D FEM modeling has resulted in the need to reconsider the disc lives as currently shown in the Time Limits Manual. The current Post Certification Life Statement for the low pressure

(LP)compressor

(fan)disc assembly revises the Declared Safe Cyclic Life

(DSCL)from 33,000 flight cycles to 25,000 flight cycles for both the BR715 LP

(fan)disc assembly Part No. (P/N) BRH10048 and BR715 LP compressor

(fan)disc assembly P/N BRH19253, when installed in the BR700-715A1-30 engine model and operated against the Hawaiian Flight Mission. The proposed AD would require revising the maximum approved life limit for both the BR715 LP compressor

(fan)disc assembly P/N BRH10048 and BR715 LP compressor

(fan)disc assembly P/N BRH19253, from 33,000 flight cycles to 25,000 flight cycles, if ever operated against the Hawaiian Flight Mission and removing LP compressor

(fan)disc assemblies from service that exceed the maximum approved life limit before further flight. This condition, if not corrected, could result in uncontained failure of the LP compressor

(fan)disc assembly and damage to the airplane. DATES: We must receive comments on this proposed AD by March 6, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. • *Hand Delivery:* Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Fax:*

(202)493-2251. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

(800)647-5527) is the same as the Mail address provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Jason Yang, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *Jason.yang@faa.gov;* telephone

(781)238-7747; fax

(781)238-7199. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0169; Directorate Identifier 2007-NE-45-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the European Community, has issued EASA Airworthiness Directive 2007-0116-E, dated May 4, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: The application of most recent 3D FEM modeling has resulted in the need to reconsider the disc lives as currently shown in the Time Limits Manual. The current Post Certification Life Statement for the low pressure

(LP)compressor

(fan)disc assembly revises the Declared Safe Cyclic Life

(DSCL)from 33,000 flight cycles to 25,000 flight cycles for both the BR715 LP

(fan)disc assembly P/N BRH10048 and BR715 LP compressor

(fan)disc assembly P/N BRH19253, when installed in the BR700-715A1-30 engine model and operated against the Hawaiian Flight Mission. You may obtain further information by examining the MCAI in the AD docket. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of Germany, and is approved for operation in the United States. Pursuant to our bilateral agreement with Germany, they have notified us of the unsafe condition described in the MCAI AD and service information referenced above. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require: • Revising the maximum approved life limit for both the BR715 LP compressor

(fan)disc assembly P/N BRH10048 and BR715 LP compressor

(fan)disc assembly P/N BRH19253, in the Time Limits Manual No. T-715-3BR; from 33,000 flight cycles to 25,000 flight cycles, if ever operated against the Hawaiian Flight Mission; and • Removing LP compressor

(fan)disc assemblies from service that exceed the maximum approved life limit before further flight. • Applying the pro rate calculations and completing the Life Limited Part Tracking Sheet, using the revised Hawaiian Flight Mission maximum life limit of 25,000 flight cycles and checking if their consumed life has exceeded maximum approved life of the Flight Mission currently installed in; and • Before further flight, removing LP compressor disc assemblies from service that do not pass the check. Costs of Compliance We estimate that this proposed AD would affect about 240 engines installed on aircraft of U.S. registry. This proposed LP compressor

(fan)disc assembly removal does not impose any additional labor costs if performed at the time of scheduled engine overhaul. We also estimate that it will take about one work-hour per engine to calculate and re-establish the achieved cyclic life for an LP compressor

(fan)disc assembly, and that the average labor rate is $80 per work-hour. We estimate that the prorate cost of the life reduction per engine will be $33,000. Total cost of this proposed AD is, therefore, $7,939,200. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Rolls-Royce Deutschland Ltd & Co KG (formerly BMW Rolls-Royce GmbH, and BMW Rolls-Royce Aero Engines):** Docket No. FAA-2007-0169; Directorate Identifier 2007-NE-45-AD. Comments Due Date

(a)We must receive comments by March 6, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Rolls-Royce Deutschland Ltd & Co KG (RRD), BR700-715A1-30, BR700-715B1-30, and BR700-715C1-30 turbofan engines, with a low pressure

(LP)compressor disc assembly, part number (P/N) BRH10048 or P/N BRH19253, when installed in the BR700-715A1-30 engine model and operated against the Hawaiian Flight Mission. These engines are installed on, but not limited to, McDonnell Douglas Corporation model 717-200 airplanes. Reason

(d)The mandatory continuous airworthiness information

(MCAI)states: The application of most recent 3D FEM modeling has resulted in the need to reconsider the disc lives as currently shown in the Time Limits Manual. The current Post Certification Life Statement for the low pressure

(LP)compressor

(fan)disc assembly revises the Declared Safe Cyclic Life

(DSCL)from 33,000 flight cycles to 25,000 flight cycles for both the BR715 LP

(fan)disc assembly P/N BRH10048 and BR715 LP compressor

(fan)disc assembly P/N BRH19253, when installed in the BR700-715A1-30 engine model and operated against the Hawaiian Flight Mission. This condition, if not corrected, could result in uncontained failure of the LP compressor

(fan)disc assembly and damage to the airplane. Actions and Compliance

(e)No later than 100 flight cycles after the effective date of this AD, do the following actions, unless already done. BR700-715A1-30 Turbofan Engines

(1)For BR700-715A1-30 turbofan engines, amend the Airworthiness Limitations Section of the Time Limits Manual SUBTASK 05-10-01-860-016, (Hawaiian Flight Mission Only) by revising the “GIVEN LIFE A1-30 RATING (FLIGHT CYCLES)” for both the LP compressor

(fan)disc assembly P/N BRH10048 and LP compressor

(fan)disc assembly P/N BRH19253 from 33,000 flight cycles to 25,000 flight cycles.

(2)Amend any other Reference, where the maximum approved life limit is quoted for the LP compressor

(fan)disc assembly P/N BRH10048 or LP compressor

(fan)disc assembly P/N BRH19253, when installed in the BR700-715A-30 engine model and operated under the Hawaiian Flight Mission, to the revised maximum approved life limit of 25,000 flight cycles. BR700-715B1-30 and BR700-715C1-30 Turbofan Engines

(3)For BR700-715B1-30 and BR700-715C1-30 turbofan engines:

(i)Check to see if the LP compressor

(fan)disc assembly P/N BRH10048 or LP compressor

(fan)disc assembly P/N BRH19253 is currently, or has previously been, installed in the BR700-715A1-30 engine model and operated under the Hawaiian Flight Mission, by checking the Life Limited Parts

(LLP)Tracking Sheet. Information on recording and control of the lives of the parts can be found in the Airworthiness Limitations Section of the Time Limits Manual TASK 05-00-01-800-001.

(ii)If the LP compressor

(fan)disc assembly has not operated, and is not going to operate in the Hawaiian Flight Mission, no further action is required.

(iii)If the LP compressor

(fan)disc assembly has operated in the Hawaiian Flight Mission:

(A)Apply the prorate calculations and complete the LLP Tracking Sheet using the revised Hawaiian Flight Mission maximum approved life limit of 25,000 flight cycles.

(B)Remove LP compressor

(fan)disc assemblies from service before reaching 25,000 flight cycles. Other FAA AD Provisions

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

(g)Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2007-0116-E, dated May 4, 2007, for related information.

(h)Contact Jason Yang, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *Jason.yang@faa.gov;* telephone

(781)238-7747; fax

(781)238-7199, for more information about this AD. Issued in Burlington, Massachusetts, on January 28, 2008. Peter A. White, Assistant Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E8-2039 Filed 2-4-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0115; Directorate Identifier 2007-NM-240-AD] RIN 2120-AA64 Airworthiness Directives; Saab Model SAAB 2000 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: One LM-219-92 Centre Bracket from an LM-219-SA28 Aft Engine Mounting assembly was found to be cracked while installed on the aircraft. This reduces the effectiveness of the mounting assembly and could eventually cause it to fail. A failed mounting assembly, if not corrected, could result in loss of the engine. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by March 6, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*

(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations,M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations,M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

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

(425)227-1112; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0115; Directorate Identifier 2007-NM-240-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2007-0204, dated August 8, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: One LM-219-92 Centre Bracket from an LM-219-SA28 Aft Engine Mounting assembly was found to be cracked while installed on the aircraft. This reduces the effectiveness of the mounting assembly and could eventually cause it to fail. This AD requires rework in order to make the centre bracket less sensitive to external damage that may result in a crack. A failed mounting assembly, if not corrected, could result in loss of the engine. The corrective action also includes a visual and fluorescent penetrant inspection for cracking of the center bracket of the aft engine mounting assembly for both engines, re-identification of a reworked center bracket, additional fluorescent penetrant inspections for cracking of the reworked center bracket, and replacement of the aft engine mounting assembly if any cracked center bracket is found. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Saab has issued Saab 2000 Service Bulletin 2000-71-025, dated June 13, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 6 products of U.S. registry. We also estimate that it would take about 8 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $3,840, or $640 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **SAAB Aircraft AB:** Docket No. FAA-2008-0115; Directorate Identifier 2007-NM-240-AD. Comments Due Date

(a)We must receive comments by March 6, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Saab Model SAAB 2000 airplanes, certificated in any category, serial number 004 through 063. Subject

(d)Air Transport Association

(ATA)of America Code 71: Power Plant. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: One LM-219-92 Centre Bracket from an LM-219-SA28 Aft Engine Mounting assembly was found to be cracked while installed on the aircraft. This reduces the effectiveness of the mounting assembly and could eventually cause it to fail. This AD requires rework in order to make the centre bracket less sensitive to external damage that may result in a crack. A failed mounting assembly, if not corrected, could result in loss of the engine. The corrective action also includes a visual and fluorescent penetrant inspection for cracking of the center bracket of the aft engine mounting assembly for both engines, re-identification of a reworked center bracket, additional fluorescent penetrant inspections for cracking of the reworked center bracket, and replacement of the aft engine mounting assembly if any cracked center bracket is found. Actions and Compliance

(f)Unless already done, do the following actions in accordance with the Accomplishment Instructions of Saab 2000 Service Bulletin 2000-71-025, dated June 13, 2007.

(1)Within 1,000 flight hours after the effective date of this AD, do a visual and a fluorescent penetrant inspection for cracking of the center bracket of both of the aft engine mounting assemblies.

(2)If no cracking is found during the inspections required by paragraph (f)(1) of this AD, within 4,000 flight hours after the effective date of this AD, rework the center bracket of the aft engine mounting assembly, do fluorescent penetrant inspections for cracking of the reworked bracket, and re-identify with new part numbers the reworked center bracket and the applicable aft engine mounting assembly.

(3)If any cracking is found during any inspection required by paragraph (f)(1) or (f)(2) of this AD, before further flight, replace the aft engine mounting assembly, and rework and re-identify the center bracket. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows:

(1)Although the MCAI or service information allows further flight after cracks are found during compliance with the required action, paragraph (f)(3) of this AD requires that you replace the aft engine mounting assembly before further flight. Other FAA AD Provisions

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

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

(425)227-1112; fax

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

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

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

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

(h)Refer to MCAI European Aviation Safety Agency

(EASA)Airworthiness Directive 2007-0204, dated August 8, 2007, and Saab 2000 Service Bulletin 2000-71-025, dated June 13, 2007, for related information. Issued in Renton, Washington, on January 24, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-1992 Filed 2-4-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 138 [USCG 2005-21780] RIN 1625-AA98 Financial Responsibility for Water Pollution (Vessels) and OPA 90 Limits of Liability (Vessels and Deepwater Ports) AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to amend the regulatory requirements, under the Oil Pollution Act of 1990 and the Comprehensive Environmental Response, Compensation and Liability Act, for vessel operators to establish and maintain evidence of financial responsibility. The amendments would ensure the amounts of financial responsibility demonstrated are consistent with recent statutory increases, and future mandated increases, in the limits of liability under the Oil Pollution Act of 1990. The amendments would also implement changes in the Coast Guard's administration of the certificate of financial responsibility program, and would clarify the current rule. DATES: Comments and related material must reach the Docket Management Facility on or before May 5, 2008. Comments sent to the Office of Management and Budget

(OMB)on collection of information must reach OMB on or before May 5, 2008. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2005-21780 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:

(1)*Online: http://www.regulations.gov.*

(2)*Mail:* Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(3)*Hand delivery:* Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

(4)*Fax:* 202-493-2251. You must also send comments on collection of information to the Office of Information and Regulatory Affairs, Office of Management and Budget. To ensure that the comments are received on time, the preferred method is by e-mail at *nlesser@omb.eop.gov* or fax at 202-395-6566. An alternate, though slower, method is by U.S. mail to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard. FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed rule, call Benjamin White, National Pollution Funds Center, Coast Guard, telephone 202-493-6863. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: I. Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. We have an agreement with the Department of Transportation

(DOT)to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below. A. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (USCG-2005-21780), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. For example, we may ask you to resubmit your comment if we are not able to read your original submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. B. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to *http://www.regulations.gov* at any time, click on “Search for Dockets,” and enter the docket number for this rulemaking (USCG-2005-21780) in the Docket ID box, and click enter. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. C. Privacy Act Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477), or you may visit *http://DocketsInfo.dot.gov.* D. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . II. Background and Purpose Under the Oil Pollution Act of 1990, as amended (OPA 90), at 33 U.S.C. 2702, responsible parties for a vessel or facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone, are jointly and severally liable for specified removal costs and damages up to prescribed limits of liability. Similar requirements apply to owners and operators of vessels and facilities under 42 U.S.C. 9607 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The OPA 90 limits of liability are set out in 33 U.S.C. 2704, and pursuant 33 U.S.C. 2704(d)(4) are subject to amendment by regulation issued not less often than every three years to reflect significant increases in the Consumer Price Index. The CERCLA limits of liability are set out in 42 U.S.C. 9607, and are not subject to Consumer Price Index adjustments. In addition, 33 U.S.C. 2716(a) of OPA 90 and 42 U.S.C. 9608(a) of CERCLA require that responsible parties of certain vessels establish and maintain evidence of financial responsibility (i.e., ability to pay) sufficient to meet the maximum amount of liability to which they could be subjected under 33 U.S.C. 2704 and 42 U.S.C. 9607. 1 According to 33 U.S.C. 2716(a)(1) and (2), those requirements apply, in relevant part for purposes of OPA 90, to responsible parties for: Any vessel over 300 gross tons (except a non-self propelled vessel that does not carry oil as cargo or fuel) using any place subject to the jurisdiction of the United States; and any vessel using the waters of the exclusive economic zone to transship or lighter oil destined for a place subject to the jurisdiction of the United States. 1 OPA 90 also imposes evidence of financial responsibility requirements on offshore facilities and deepwater ports, at 33 U.S.C. 2716(c). These regulations, however, only concern the OPA 90 evidence of financial responsibility requirements applicable to vessels under 33 U.S.C. 2716(a). On July 11, 2006, the President signed the Delaware River Protection Act of 2006 (Title VI of the Coast Guard and Maritime Transportation Act of 2006) (Pub. L. 109-241) (DRPA). Section 603 of DRPA amended the OPA 90 limits of liability for vessels at 33 U.S.C. 2704(a). The new OPA 90 limits of liability were effective for non-tank vessels on July 11, 2006 and for tank vessels on October 9, 2006. 2 2 See, “New Oil Pollution Limits of Liability for Vessels-Delaware River Protection Act of 2006 Amendment to the Oil Pollution Act of 1990” (71 FR 47737, August 18, 2006). The following table shows the original and amended OPA 90 limits of liability by vessel type: OPA 90 Vessel Limits of Liability 3, 4 If the vessel is a The original limit of liability limit was the greater of— The amended limit of liability is the greater of— Tank vessel greater than 3,000 gross tons with a single hull, with double sides only, or with a double bottom only $1,200 per gross ton or $10,000,000 $3,000 per gross ton or $22,000,000. Tank vessel less than or equal to 3,000 gross tons with a single hull, with double sides only, or with a double bottom only $1,200 per gross ton or $2,000,000 $3,000 per gross ton or $6,000,000. Tank vessel greater than 3,000 gross tons with a double hull $1,200 per gross ton or $10,000,000 $1,900 per gross ton or $16,000,000. Tank vessel less than or equal to 3,000 gross tons with a double hull $1,200 per gross ton or $2,000,000 $1,900 per gross ton or $4,000,000. Any vessel other than a tank vessel $600 per gross ton or $500,000 $950 per gross ton or $800,000. 3 Source: 33 U.S.C. 2704(a) as now in effect, and immediately prior to amendment by Pub. L. 109-241, Section 603. 4 Although, both the amended and original versions of 33 U.S.C. 2704(a) distinguish between vessels on the basis of gross tonnage and whether they are tank vessels, the statute as amended by DRPA Section 603 now also distinguishes between single and double hulled tank vessels. On August 18, 2006, we published a Notice of Policy in the **Federal Register** (71 FR 47737) entitled “New Oil Pollution Limits of Liability for Vessels—Delaware River Protection Act of 2006 Amendment to the Oil Pollution Act of 1990”. In this notice, we explained: • That the OPA 90 limits of liability for vessels have been changed effective July 11, 2006 for non-tank vessels, and effective October 9, 2006 for tank vessels; • The amounts of the new OPA 90 vessel limits; • That the OPA 90 proof of financial responsibility requirements for vessels at 33 CFR part 138 would stay at existing levels until changed by rulemaking; and • That a rulemaking project would be initiated to require vessel owners and operators to provide evidence of financial responsibility under 33 CFR part 138 to the amended OPA 90 limits of liability. As a result of the 2006 changes to the OPA 90 vessel limit of liability provisions, this rulemaking was initiated to ensure the ability of responsible parties to meet their potential liability limit under OPA 90, as specified in 33 U.S.C. 2704, in the event of an incident. In order to provide the necessary consistency between the new OPA 90 vessel limits of liability and the vessel evidence of financial responsibility requirements, we propose to amend the applicable amount provisions for OPA 90 at § 138.80(f)(1). 5 5 This rulemaking would not change the applicable amounts for vessels under CERCLA at 42 U.S.C. 9607(c) and § 138.80(f)(2). Section 603(b) of the DRPA also amended 33 U.S.C. 2704(d)(4) of OPA 90, adding a requirement that the President adjust the OPA 90 limits of liability specified in 33 U.S.C. 2704(a) within three years following enactment of DRPA and not less than every 3 years thereafter to reflect significant increases in the Consumer Price Index. The requirement to adjust the OPA 90 limits of liability for vessels and deepwater ports has been delegated to the Director, National Pollution Funds Center, United States Coast Guard. Therefore, to facilitate future updates to the CFR, we propose dividing part 138 of the CFR into two subparts, with the current rule appearing under subpart A, adding a new subpart B to set forth the OPA 90 limits of liability for both vessels and deepwater ports, and deleting the specifically enumerated OPA 90 applicable amounts for vessels from § 138.80(f)(1). In addition, we propose to eliminate the requirement in § 138.65 that an original Certificate of Financial Responsibility (Certificate or COFR), or an authorized copy thereof, be carried aboard covered vessels. Improved technology now enables the Coast Guard to view vessel COFRs electronically, which is more cost effective than tasking inspectors to view a paper Certificate on board each vessel. The proposed rule would also increase the COFR application and certification fees found in § 137.130. Existing fee amounts were established in 1994 in the interim rule entitled “Financial Responsibility for Water Pollution (Vessels)” (59 FR 34210). A final rule was subsequently published in 1996 entitled “Financial Responsibility for Water Pollution (Vessels)” (61 FR 9264) which did not change the fee amounts established in the interim rule. These proposed fee increases approximate the fluctuations to the Consumer Price Index occurring as a result of inflation since 1994. Finally, we propose a conforming revision to the definition of “owner” in § 138.20 to reflect amendments to OPA 90 by the Coast Guard and Maritime Transportation Act of 2004 (Pub. L. 108-293) (the 2004 Act). III. Discussion of Proposed Rule Throughout proposed Part 138, regulatory provisions have been rewritten using plain language when necessary to clarify the rule. These revisions are not intended to change substantive requirements, and are only discussed when helpful to explain substantial revisions resulting from this proposed rule. *Part 138* . The word “subpart” would be substituted for “part”, as appropriate, throughout to reflect the proposal to divide the rule into two subparts. References to “appendices to this part” have been deleted throughout. (See discussion of Appendices A-F below). Section 138.10. We propose to revise the introductory paragraph to clarify the statutory background of the rule for the reader. The revision includes references to the requirements, in OPA section 1016 and CERCLA section 108, that responsible parties establish and maintain evidence of financial responsibility sufficient to cover specified amounts of liability arising under those acts. The revised section also reiterates the requirement, in § 138.80 of the existing and proposed regulations, that responsible parties establish and maintain evidence of financial responsibility equal to the total applicable amount. For more information on the total applicable amount, see proposed § 138.80, particularly paragraphs

(a)and (f). *Section 138.15* . We propose removing all of the content of existing § 138.15, entitled “Implementation Schedule” and replacing it with the applicability provisions currently located at § 138.12. The language that would be removed from § 138.15 is associated with the phase-in requirements established by the interim rule entitled “Financial Responsibility for Water Pollution (Vessels)” (59 FR 34210), which was published in the **Federal Register** on July 1, 1994, and reiterated in a final rule published in the **Federal Register** on March 7, 1996 (61 FR 9264). Because the phase-in was completed on December 27, 1997, this language is obsolete. *Section 138.15(a)(2)* . This part of the proposed rule would correct a typographical error. The current regulation, at § 138.12(a)(2), states that it applies to “A vessel * * * except—(i) A vessel that is 300 gross tons or less; *and*

(ii)A non-self-propelled barge that does not carry oil as cargo or fuel and does not carry hazardous substances as cargo.” We would revise this section to state “A vessel * * * except —(i) A vessel that is 300 gross tons or less; *or*

(ii)A non-self-propelled barge that does not carry oil as cargo or fuel and does not carry hazardous substances as cargo.” Correction of this typographical error is necessary to eliminate confusion concerning which vessels are subject to the regulation. Other proposed changes to the wording of current § 138.12 (proposed § 138.15) are editorial clarifications. *Section 138.20* . The current references in § 138.20(a)(1) to § 138.10(b)(1), and in § 138.20(a)(2) to § 138(b)(2) are incorrect due to a typographical error. They should read §§ 138.10(a) and

(b)respectively. The proposed rule would correct this error. Additionally, the following changes would be made to the definitions in this section: The proposed revisions to § 138.20 would clarify that modifications to terms defined in OPA 90 and CERCLA apply only for purposes of the subpart A evidence of financial responsibility requirements and do not modify responsible party liability under statute. Several terms used in this regulation are defined terms in OPA 90 and CERCLA, but are not currently listed in 33 CFR 138.20(a). We therefore propose adding the terms “claim”, “liable”, “liability”, “offshore facility”, “owner or operator”, and “security interest”. The definition of Certificate would be modified to reflect that all COFRs would be issued by NPFC, and that the COFR will be issued in electronic format. A responsible party may print copies of the COFR for recordkeeping purposes. The definition of “Owner” would be modified to reflect a recent amendment to OPA 90 which states, similar to CERCLA, that an owner does not include a person who, without participating in the management of a vessel, holds indicia of ownership primarily to protect the owner's security interest in the vessel. We also propose adding new definitions for “applicable amount”, “day or days”, “E-COFR”, “financial guarantor” and “responsible party” to clarify terms used in the current and proposed rule, as follows: The term “Applicable amount” refers to an amount calculated pursuant to either § 138.80(f)(1) (OPA 90) or § 138.80(f)(2) (CERCLA), and would be defined to distinguish the term from the defined term “Total Applicable Amount”. Technical corrections have been proposed throughout the rule to ensure the two terms are used as intended. The terms “day” or “days” would be added to clarify how deadlines are calculated under the rule. The term “E-COFR” would be defined to refer the reader to the web-based process on NPFC's Web site for operators to apply for and renew Certificates. The term “financial guarantor” would be defined to clarify that a financial guarantor is a particular type of guarantor, and is distinct from an insurer, a self-insurer or a surety. In the definition of “insurer”, we propose changing “Coast Guard” to “Director, NPFC” because NPFC has been delegated responsibility for vessel certification. We also propose to revise the definition of “Master Certificate”, to make it consistent with § 138.110(a) of the current and proposed rule, by including the word “lessor” in the list of eligible persons. The term “responsible party” would be defined by reference to OPA 90 and CERCLA to clarify its meaning when used in the rule. We would also, when appropriate and helpful to improve readability, replace references to owners, operators and demise charterers by the term responsible party. We propose to amend the definition of “guarantor” to clarify, consistent with OPA 90 and CERCLA, that a responsible party is not a guarantor, and to incorporate the newly defined term “responsible party.” The Hazardous Material definition of the current rule has a typographical error in its citation of the Federal Water Pollution Control Act. The current regulation references “33 U.S.C. 1221”. It should read “33 U.S.C. 1321”. The proposed rule would correct this error. *Section 138.30* . We propose moving the last sentence of § 138.30(b), which provides that a “time or voyage charter that does not assume responsibility for the operation of a vessel is not considered an operator,” to the definition of the term “Operator”. All other changes to § 138.30 are editorial. *Section 138.40* . This section of the proposed rule would inform the public where to obtain the forms that now appear in the appendices of part 138. *Section 138.45* . This section, currently § 138.40 of the rule, would be amended by adding a statement that COFR applications may be submitted electronically using E-COFR found on NPFC's Web site. *Section 138.50* . The proposed rule would add the words “for good cause shown”, to clarify the standard the Coast Guard now applies to grant extensions. *Section 138.60* . The proposed rule would add language referring applicants to the instructions for obtaining COFR application forms at §§ 138.40 and 138.45. *Section 138.65* . Due to recent technological improvements, the Coast Guard is now able to efficiently enforce these regulations using electronic means. Therefore, this proposed rule would remove the requirement in § 138.65 that hard-copy COFRs be carried aboard vessels. The proposed rule would also provide in this section that COFRs will be issued by NPFC in electronic form. The rule would also provide that a copy of the Certificate may be downloaded from NPFC's web-site. Elsewhere in § 138.140(e) the rule would provide that copies may not be altered, and may not be used following expiration or revocation for anything other than recordkeeping purposes. *Section 138.70* . The proposed rule would add language to paragraph

(a)of this section permitting operators to use the E-COFR Web site for COFR renewal requests. The proposal would also clarify in paragraph

(a)that the requirements in § 138.60 requiring that applications be in English and that all monetary terms be expressed in U.S. dollars also apply to requests for renewal. Additionally, paragraph

(c)of this section of the current rule would be removed. The phase-in of the prior financial responsibility regulations was completed on December 27, 1997. Therefore, this paragraph is no longer applicable. For further information concerning the previous phase-in, see the discussion in this preamble of § 138.15. *Section 138.80(f)(1)* . Section 603(b) of DRPA amended 33 U.S.C. 2704(d) by adding a requirement that the President update the limits of liability specified in 33 U.S.C. 2704(a) by regulation within three years following enactment of the 2006 amendments, and preserved the requirement for such updates not less often than every 3 years to reflect significant increases in the Consumer Price Index. This authority to update the limits of liability for vessels and deepwater ports was subsequently delegated to the Coast Guard. To facilitate future updates to the CFR, this paragraph would be amended to inform readers that the OPA 90 evidence of financial responsibility applicable amounts are equal to the limits of liability for vessels referenced in new subpart B. This approach is proposed to simplify the process of updating vessel OPA 90 financial responsibility applicable amounts and limits of liability. For example, when an adjustment in the OPA 90 limits of liability is required to reflect a change in the Consumer Price Index, only subpart B of the proposed regulations would require revision. In contrast, continuing to state financial responsibility amounts in this section would necessitate amending this section as well as the limits of liability in new subpart B. The Coast Guard considered the possibility of adding the adjusted OPA 90 limits of liability to § 138.80(f), or removing that paragraph entirely and stating limits of liability and financial responsibility applicable amounts in a new section. The former alternative was not preferred because the current § 138.80(f) also contains provisions concerning the CERCLA evidence of financial responsibility requirements, and a paragraph containing all of these provisions would be unnecessarily confusing. Removal of this paragraph was also not preferred because doing so would unnecessarily entail a reorganization of part 138 to relocate the CERCLA provisions. The limitations contained in current § 138.80(f)(1) concerning gross tonnage, cargo, jurisdiction and vessel use would be removed from that paragraph, but would continue in force through § 138.15 of the proposed rule. *Section 138.85* . This new section of the proposed rule would establish an implementation schedule that would apply to the increased applicable amounts in Subpart B of this proposed rule, and whenever the financial responsibility applicable amounts under Subpart B are amended by regulation. This would occur in instances including, but not limited to, future regulatory changes mandated by statute, and when the limits of liability in proposed subpart B of this Part are amended to reflect significant increases in the Consumer Price Index pursuant to 33 U.S.C. 2704(d)(4). *Sections 138.90, 138.110 and 138.120* . As discussed in this preamble in relation to § 138.65, the proposed rule would remove the requirement to carry the COFR in hard-copy onboard the vessel. Provisions requiring such carriage, as well as requirements for copies of COFRs to be notarized, and for operators to return COFRs to NPFC under certain circumstances are no longer applicable and we propose that they be deleted from these sections. Operators may download copies of COFRs. Elsewhere, however, § 138.140(e) of the rule would continue to provide that the use of altered copies is prohibited, and although copies would no longer need to be returned to NPFC, the rule would add that copies may not be used following expiration or revocation for anything other than recordkeeping purposes. *Section 138.130* . The proposed rule would add a provision to § 138.130(b) requiring payment with a credit card by those seeking to make fee payments using E-COFR. In addition § 138.130(c) has been rewritten to clarify when an application fee is required to be paid to the NPFC. As discussed in this preamble in relation to §§ 138.15 and 138.70, we propose to remove § 138.70(c) of the current rule, and references to it, because it is no longer applicable. References to § 138.70(c) would, therefore, also be deleted from § 138.130. This proposed rule would also amend § 138.130 to increase the COFR application fees from $150 to $200 and the COFR certification fees from $80 to $100. These proposed fee increases approximate the fluctuations to the Consumer Price Index occurring as a result of inflation since 1994, the year the current fees were established, and are not anticipated to result in significant economic cost to those affected. See the Preliminary Regulatory Evaluation at *http://www.regulations.gov* under docket number USCG 2005-21780 for an analysis of economic impacts associated with these proposed increases. We also propose amending § 138.130(c) for clarity and to conform the rule to NPFC's policy of waiving application fees when new applications are submitted within 90 days following a revocation or other invalidation of a Certificate. *Section 138.140* . The proposed rule would revise § 138.140 to clarify its provisions, explain the repercussions of non-compliance and facilitate enforcement of the evidence of financial responsibility requirements of this regulation through electronic methods in order to improve efficiency. Additionally, the Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2178) revised 46 U.S.C. App. 91 by substituting the Secretary of Homeland Security for the Customs Service and the Secretary of the Treasury, and that section was recodified at 46 U.S.C. 60105. Accordingly, we propose to update the reference to 46 U.S.C. App. 91 in § 138.140(b). *Subpart B* . Section 603(b) of the DRPA amended 33 U.S.C. 2704(d)(4) adding a requirement that the President update the limits of liability specified in 33 U.S.C. 2704(a) by regulation within three years following enactment of DRPA, and preserved the requirement for such updates not less often than every 3 years thereafter to reflect significant increases in the Consumer Price Index. This authority to update the limits of liability for vessels and deepwater ports was subsequently delegated to the Coast Guard. To facilitate such updates, § 138.80(f)(1) would be amended to inform readers that the OPA 90 vessel financial responsibility applicable amounts are equal to the limits of liability for vessels referenced in new subpart B. This approach will enable regulatory revision of both the limits of liability and the financial responsibility amounts through amendment of subpart B. The limits of liability contained in 33 U.S.C. 2704 would be set forth in new subpart B, consisting of new §§ 138.200, 138.210, and 138.220, to facilitate future Consumer Price Index adjustments. As explained in the “Background and Purpose” section above, the OPA 90 vessel limits of liability would be set forth in subpart B at the increased amounts pursuant to the DRPA. The limit of liability for the Louisiana Offshore Oil Port would be set forth at the existing amount, $62,000,000, which was established pursuant to 33 U.S.C. 2704(d)(2)(C) by a final rule published in the **Federal Register** on August 4, 1995 (60 FR 39849). The limit of liability for all other deepwater ports would also be set forth at subpart B at the existing amount, $350,000,000, pursuant to 33 U.S.C. 2704(a)(4). *Appendices A-F.* We propose to delete the appendices of forms from the regulations. Instead, as explained in the preamble discussion of § 138.40, the proposed rule would, where appropriate, refer readers to the forms by form number and would provide street and internet addresses where forms could be obtained. IV. Regulatory Evaluation We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analysis based on 13 of these statutes and executive orders. A. Executive Order 12866 This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. A draft Regulatory Evaluation is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. A summary of the Evaluation follows: There are two regulatory costs that are expected to result from this proposed rule: *Regulatory Cost 1* : The proposed rule would increase the cost to responsible parties associated with application for and certification of COFRs. This proposed rule would increase the cost per application from $150 to $200 and the cost per certification from $80 to $100. We estimate that there will be 1,600 COFR applications submitted per year and 8,600 COFR certifications submitted per year for the foreseeable future. The aggregated annual increase in cost due to these fee increases would be approximately $252,000 per year. *Regulatory Cost 2* : The proposed rule would increase the cost associated with establishing financial responsibility under 33 CFR 138. This would occur in two ways: responsible parties using commercial insurance as their method of guaranty would incur higher insurance premiums; and, responsible parties using self-insurance as their method of guaranty would need to seek out and acquire commercial insurance for vessels they operate that would no longer be eligible for self-insurance based on their working capital and net worth. There are approximately 16,982 vessels using commercial insurance and 823 vessels using self insurance methods of guaranty. The 10-year present value of this regulatory cost at a 3% discount rate would be between $73.8 Million and $83.4 Million. The 10-year present value of this regulatory cost at a 7% discount rate would be between $63.3 Million and $71.9 Million. The ranges reflect two vessel profiles that were developed and analyzed separately to account for the uncertainty, due to data gaps, of when existing single hulled tank vessels would be phased out. The 10-year present value of the total cost of the proposed rule (Regulatory Cost 1 + Regulatory Cost 2) at a 3% discount rate would be between $76 Million and $85.6 Million. The 10-year present value of the total cost of the proposed rule (Regulatory Cost 1 + Regulatory Cost 2_) at a 7% discount rate would be between $65.2 Million and $73.8 Million. This proposed rule would result in two benefits: First, the rule would align the financial responsibility amounts for vessels in 33 CFR with the amended statutory limits of liability under OPA 90. This will ensure the ability of responsible parties to meet their maximum liability limit under OPA 90, as specified in 33 U.S.C. 2704, in the event of an incident. Second, the rule would eliminate the burden on owners and operators of maintaining COFRs onboard vessels. B. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. An Initial Regulatory Flexibility Analysis discussing the impact of this proposed rule on small entities is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. In this analysis, we researched vessel operator size and revenue data using public and proprietary business databases. We then determined which entities were small based on the U.S. Small Business Administration's criteria as they pertain to business size standards for all sectors of the North American Industry Classification System (NAICS). There are an estimated 600 small entities that would be affected by this proposed rule. It was found that 82 distinct NAICS codes were represented in the population of small entities (of which 32 contained more than 5 entities). Increases in insurance premiums would result in an average annual cost of $523 per vessel. Increases in self-insurer costs would result in an average annual cost of $7,200 per vessel. Increases in COFR application fees would result in an average annual cost of $12 per vessel. Of the small entities impacted, 92 percent would experience an annual economic impact that is less than 1 percent of their annual sales. Furthermore, 98 percent of the small entities would experience an economic impact less than 3 percent of their total sales. Two percent would experience an annual economic impact that is equal to or greater than 3 percent of their annual sales and none would experience an annual economic annual impact greater than 10 percent of their annual sales. Based on this analysis, we believe that implementation of this proposed rule would not have a significant economic impact on a substantial number of small entities under 5 U.S.C. 605(b). At the final rule stage, we may certify this rule as not having a significant economic impact on a substantial number of small entities; consequently, we specifically request comments that inform our decision regarding the economic impact of this rule on small entities. C. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Benjamin White, National Pollution Funds Center, Coast Guard, telephone 202-493-6863. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). D. Collection of Information This proposed rule would call for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other, similar actions. The title and description of the information collections, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection. *Title* : Financial Responsibility for Water Pollution (Vessels) and Limits of Liability. *Summary of the Collection of Information:* Within 120 days of the effective date of this regulation, operators and guarantors would be required to establish evidence of financial responsibility to the amended applicable amounts in 33 CFR 138.80(f). This proposed rule would eliminate the existing recordkeeping burden associated with 33 CFR part 138, and revise the current information collection entitled, Financial Responsibility for Water Pollution (Vessels) (Office of Management and Budget Control Number 1625-0046, Approved December 7, 2006). *Need for Information* : This information collection is necessary to enforce this proposed rule. Without this collection, it would not be possible for the Coast Guard to know which operators were in compliance with the amended financial responsibility amounts of 33 CFR 138.80(f), and which were not. Vessels not in compliance would be subject to the penalties provided under 33 CFR 138.140. *Proposed Use of Information* : The Coast Guard would use this information to verify that vessel operators have established evidence of financial responsibility to reflect the amended financial responsibility applicable amounts in 33 CFR 138.80(f). *Description of the Respondents* : Operators and guarantors of vessels that require COFRs under 33 CFR part 138. *Number of Respondents* : There are approximately 900 United States operators, 9,000 foreign operators of vessels and 100 guarantors that would submit information to the Coast Guard. *Frequency of Response* : This is a one-time submission that would occur within 120 days of this regulatory change to the financial responsibility applicable amounts. Subsequent submissions that may be required as a result of changes to the Consumer Price Index are not included here because they will be addressed in a future rulemaking to establish procedures for periodic changes to the limits of liability to reflect changes in the Consumer Price Index pursuant to 33 U.S.C. 2704(d)(4). Also not included here are submissions required under any existing collection of information requirement in part 138. *Burden of Response* : Increased burden associated with reporting requirements: 10,000 operators × 1.0 hours per response = 10,000 hours Reduced burden associated with recordkeeping requirements: 137 hours for recordkeeping *Estimate of Total Annual Burden* : We used the “All Occupations” average hourly wage of $18.21 per hour, found in the May 2005 *National Occupational Employment and Wage Estimates United States* , published by the Department of Labor's Bureau of Labor Statistics, and applied a 43 percent overhead factor to estimate employee benefits to calculate the burdened labor rate. Bureau of Labor Statistics data show that total employee benefits is approximately 30 percent of total compensation. By applying a benefit factor of 43 percent to the hourly wage, we calculate total compensation: $18.21 per hour + ($18.21 per hour × 43%) = $26 per hour. We then multiplied the number of net burden hours by the burdened labor rate calculated above. Increased burden associated with reporting requirements: 10,000 hours × $26 per hour = $260,000 Reduced burden associated with recordkeeping requirements: 137 hours × $26 per hour = $3,562 As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of this proposed rule to the Office of Management and Budget

(OMB)for its review of the collection of information. We ask for public comment on the proposed collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection. If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under ADDRESSES , by the date under DATES . You need not respond to a collection of information unless it displays a currently valid control number from OMB. Before the requirements for this collection of information become effective, we will publish a notice in the **Federal Register** of OMB's decision to approve, modify, or disapprove the collection. E. Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. F. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. G. Taking of Private Property This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. H. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. I. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. J. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. K. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. L. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. M. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. A preliminary “Environmental Analysis Check List” supporting this preliminary determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. We seek any comments or information that may lead to discovery of a significant environmental impact from this proposed rule. List of Subjects in 33 CFR Part 138 Hazardous materials transportation, Insurance, Oil pollution, Reporting and recordkeeping requirements, Water pollution control. VI. Words of Issuance and Regulatory Text For the reasons discussed in the preamble, the Coast Guard proposes to revise 33 CFR part 138 to read as follows: PART 138—FINANCIAL RESPONSIBILITY FOR WATER POLLUTION (VESSELS) AND OPA 90 LIMITS OF LIABILITY (VESSELS AND DEEPWATER PORTS) Subpart A—Financial Responsibility for Water Pollution (Vessels) Sec. 138.10 Scope. 138.15 Applicability. 138.20 Definitions. 138.30 General. 138.40 Forms. 138.45 Where to apply for Certificates. 138.50 Time to apply. 138.60 Applications, general instructions. 138.65 Issuance of Certificates. 138.70 Renewal of Certificates. 138.80 Financial responsibility, how established. 138.85 Implementation schedule. 138.90 Individual and Fleet Certificates. 138.100 Non-owning operator's responsibility for identification. 138.110 Master Certificates. 138.120 Certificates, denial or revocation. 138.130 Fees. 138.140 Enforcement. 138.150 Service of process. Subpart B—OPA 90 Limits of Liability (Vessels and Deepwater Ports) Sec. 138.200 Scope. 138.210 Applicability. 138.220 Limits of liability. Authority: 33 U.S.C. 2716, 2716a; 42 U.S.C. 9608, 9609; sec. 7(b), E.O. 12580, 3 CFR, 1987 Comp., p. 198; E.O. 12777, 3 CFR, 1991 Comp., p. 351; E.O. 13286, Sec. 89 (68 FR 10619, Feb. 28, 2003); Section 1512 of the Homeland Security Act of 2002 (Pub. L. 107-296); Department of Homeland Security Delegation Nos. 0170.1 and 5110. Section 138.30 also issued under the authority of 46 U.S.C. 2103, 46 U.S.C. 14302. Subpart A—Financial Responsibility for Water Pollution (Vessels) § 138.10 Scope. This subpart sets forth the procedures by which an operator of a vessel must establish and maintain, for itself and for the owners and demise charterers of the vessel, evidence of financial responsibility required by § 1016(a) of the Oil Pollution Act of 1990, as amended (OPA 90) (33 U.S.C. 2716), and Section 108 of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (CERCLA) (42 U.S.C. 9608), equal to the total applicable amount established under this part and sufficient to cover their liability arising under—

(a)Sections 1002 and 1004 of OPA 90 (33 U.S.C. 2702, 2704); and

(b)Section 107 of CERCLA (42 U.S.C. 9607). § 138.15 Applicability.

(a)This subpart applies to the operator as defined herein of—

(1)A tank vessel of any size, and a foreign-flag vessel of any size, using the waters of the exclusive economic zone to transship or lighter oil (whether delivering or receiving) destined for a place subject to the jurisdiction of the United States; and

(2)Any vessel using the navigable waters of the United States or any port or other place subject to the jurisdiction of the United States, including a vessel using an offshore facility subject to the jurisdiction of the United States, except—

(i)A vessel that is 300 gross tons or less; or

(ii)A non-self-propelled barge that does not carry oil as cargo or fuel and does not carry hazardous substances as cargo.

(b)For the purposes of financial responsibility under OPA 90, a mobile offshore drilling unit is treated as a tank vessel when it is being used as an offshore facility and there is a discharge, or a substantial threat of a discharge, of oil on or above the surface of the water. A mobile offshore drilling unit is treated as a vessel other than a tank vessel when it is not being used as an offshore facility.

(c)In addition to a non-self-propelled barge over 300 gross tons that carries hazardous substances as cargo, for the purposes of financial responsibility under CERCLA, this subpart applies to a self-propelled vessel over 300 gross tons, even if it does not carry hazardous substances.

(d)This subpart does not apply to operators of public vessels. § 138.20 Definitions.

(a)As used in this subpart, the following terms have the meaning as set forth in—

(1)Section 1001 of the Oil Pollution Act of 1990 (Pub. L. 101-380, Title I, § 1001, Aug. 18, 1990, 104 Stat. 486; Pub. L. 105-383, Title III, § 307(a), Nov. 13, 1998, 112 Stat. 3421; Pub. L. 108-293, Title VII, § 703(a), (b), Aug. 9, 2004, 118 Stat. 1069, 1071), respecting the financial responsibility referred to in § 138.10(a): *claim, claimant, damages, discharge, exclusive economic zone, liable, liability, navigable waters, mobile offshore drilling unit, natural resources, offshore facility, oil, owner or operator, person, remove, removal, removal costs, security interest, and United States;* and

(2)Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act (Pub. L. 96-510, Title I, § 101, Dec. 11, 1980, 94 Stat. 2767; Pub. L. 96-561, Title II, § 238(b), Dec. 22, 1980, 94 Stat. 3300; Pub. L. 99-499, Title I, §§ 101, 114(b), 127(a), Title V, § 517(c)(2), Oct. 17, 1986, 100 Stat. 1615, 1652, 1692, 1774; Pub. L. 100-707, Title I, § 109(v), Nov. 23, 1988, 102 Stat. 4710; Pub. L. 103-429, § 7(e)(1), Oct. 31, 1994, 108 Stat. 4390; Pub. L. 104-208, Div. A, Title I, § 101(a) [Title II, § 211(b)], Title II, § 2502(b), Sept. 30, 1996, 110 Stat. 3009-41, 3009-464; Pub. L. 104-287, § 6(j)(1), Oct. 11, 1996, 110 Stat. 3400; Pub. L. 106-74, Title IV, § 427, Oct. 20, 1999, 113 Stat. 1095; Pub. L. 107-118, Title II, §§ 211(a), 222(a), 223, 231(a), Jan. 11, 2002, 115 Stat. 2360, 2370, 2372, 2375), respecting the financial responsibility referred to in § 138.10(b): *claim, claimant, damages, environment, hazardous substance, liable, liability, navigable waters, natural resources, offshore facility, owner or operator, person, release, remove, removal, security interest,* and *United States.*

(b)As used in this subpart— *Acts* means OPA 90 and CERCLA. *Applicable amount* means an amount of financial responsibility that must be demonstrated under this part, calculated pursuant to Sec. 138.80(f)(1) and subpart B for OPA 90 or 138.80(f)(2) for CERCLA. *Applicant* means an operator who has applied for a Certificate or for the renewal of a Certificate under this subpart. *Application* means an “Application for Vessel Certificate of Financial Responsibility (Water Pollution)” (Form CG-5585), which can be obtained from the U.S. Coast Guard National Pollution Funds Center as provided in §§ 138.40 and 138.45. *Cargo* means goods or materials on board a vessel for purposes of transportation, whether proprietary or nonproprietary. A hazardous substance or oil carried solely for use aboard the carrying vessel is not “Cargo”. *CERCLA* means title I of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (42 U.S.C. 9601 et seq.). *Certificant* means an operator who has a current Certificate issued by NPFC under this subpart. *Certificate* means a “Vessel Certificate of Financial Responsibility (Water Pollution)” issued by the NPFC electronically under this subpart, as provided in § 138.65. *Day* or *days* means calendar days. If a deadline specified in this subpart falls on a weekend or Federal holiday, the deadline will occur on the next working day. Compliance with a submission deadline will be determined based on the day the submission is received by NPFC. *Director, NPFC,* means the head of the U.S. Coast Guard National Pollution Funds Center (NPFC). *E-COFR* means the “Electronic Certificate of Financial Responsibility” web-based process located on the NPFC Web site ( *http://www.npfc.gov/cofr* ), which may be used by operators to apply for and renew Certificates. *Financial guarantor* means a guarantor who provides a financial guaranty under § 138.80(b)(4), and is distinct from an insurer, a self-insurer or a surety. *Financial responsibility* means the statutorily required financial ability to meet a responsible party's liability under the Acts. *Fish tender vessel* and fishing vessel have the same meaning as set forth in 46 U.S.C. 2101. *Fuel* means any oil or hazardous substance used or capable of being used to produce heat or power by burning, including power to operate equipment. A hand-carried pump with not more than five gallons of fuel capacity, that is neither integral to nor regularly stored aboard a non-self-propelled barge, is not equipment. *Guarantor* means any person, other than a responsible party, who provides evidence of financial responsibility under the Acts on behalf of a vessel's responsible parties. A responsible party who can qualify as a self-insurer under § 138.80(b)(3) may act as both a self-insurer of vessels owned, operated or demise chartered by the responsible party, and as a financial guarantor for the responsible parties of other vessels under § 138.80(b)(4). *Hazardous material* means a liquid material or substance that is—

(1)Flammable or combustible;

(2)A hazardous substance designated under section 311(b) of the Federal Water Pollution Control Act (33 U.S.C. 1321(b)); or

(3)Designated a hazardous material under the Hazardous Materials Transportation Act, section 104, 46 U.S.C. 5103(a) (1994). *Incident* means any occurrence or series of occurrences having the same origin, involving one or more vessels, facilities, or any combination thereof, resulting in the discharge or substantial threat of discharge of oil into or upon the navigable waters or adjoining shorelines or the exclusive economic zone. *Insurer* is a type of guarantor and means one or more insurance companies, associations of underwriters, ship owners' protection and indemnity associations, or other persons, each of which must be acceptable to the Director, NPFC. *Master Certificate* means a Certificate issued under this subpart to a person who is a builder, repairer, scrapper, lessor, or seller of a vessel and is acting as the vessel's operator. *Offshore supply vessel* has the same meaning as set forth in 46 U.S.C. 2101. *OPA 90* means title I of the Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.). *Operator* means a person who is an owner, a demise charterer, or other contractor, who conducts the operation of, or who is responsible for the operation of, a vessel. A builder, repairer, scrapper, lessor, or seller who is responsible, or who agrees by contract to become responsible, for a vessel is an operator. A time or voyage charterer that does not assume responsibility for the operation of a vessel is not an operator for the purposes of this subpart. *Owner* means any person holding legal or equitable title to a vessel. In a case where a U.S. Coast Guard Certificate of Documentation or equivalent document has been issued, the owner is considered to be the person or persons whose name or names appear thereon as owner. “Owner” does not include a person who, without participating in the management of a vessel, holds indicia of ownership primarily to protect the owner's security interest in the vessel. *Public vessel* means a vessel owned or bareboat chartered by the United States, or by a State or political subdivision thereof, or by a foreign nation, except when the vessel is engaged in commerce. *Responsible party* , for purposes of OPA 90 financial responsibility has the same meaning as defined at 33 U.S.C. 2701(32), and for purposes of CERCLA financial responsibility means any person who is an owner or operator, as defined at 42 U.S.C. 9601(20), including any person chartering a vessel by demise. *Self-elevating lift vessel* means a vessel with movable legs capable of raising its hull above the surface of the sea and that is an offshore work boat (such as a work barge) that does not engage in drilling operations. *Tank vessel* means a vessel (other than an offshore supply vessel, a fishing vessel or a fish tender vessel of 750 gross tons or less that transfers fuel without charge to a fishing vessel owned by the same person, or a towing or pushing vessel

(tug)simply because it has in its custody a tank barge) that is constructed or adapted to carry, or that carries, oil or liquid hazardous material in bulk as cargo or cargo residue, and that—

(1)Is a vessel of the United States;

(2)Operates on the navigable waters; or

(3)Transfers oil or hazardous material in a place subject to the jurisdiction of the United States. *Total applicable amount* means the amount determined under § 138.80(f)(3). *Vessel* means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. § 138.30 General.

(a)The regulations in this subpart set forth the procedures for an operator of a vessel subject to this subpart to demonstrate that the responsible parties of the vessel are financially able to meet their potential liability for costs and damages in the applicable amounts set forth in this subpart at 138.80(f). Although the owners, operators, and demise charterers of a vessel are strictly, jointly and severally liable under OPA 90 and CERCLA for the costs and damages resulting from each incident or release or threatened release, together they need only establish and maintain evidence of financial responsibility under this subpart equal to the combined OPA 90 and CERCLA limits of liability arising from a single incident and a single release, or threatened release. Only that portion of the total applicable amount of financial responsibility demonstrated under this subpart with respect to—

(1)OPA 90 is required to be made available by a vessel's responsible parties and guarantors for the costs and damages related to an incident where there is not also a release or threatened release; and,

(2)CERCLA is required to be made available by a vessel's responsible parties and guarantors for the costs and damages related to a release or threatened release where there is not also an incident. A guarantor (or a self-insurer for whom the exceptions to limitations of liability are not applicable), therefore, is not required to apply the entire total applicable amount of financial responsibility demonstrated under this subpart to an incident involving oil alone or a release or threatened release involving a hazardous substance alone.

(b)Where a vessel is operated by its owner or demise charterer, or the owner or demise charterer is responsible for its operation, the owner or demise charterer is considered to be the “operator” for purposes of this subpart, and must submit the application and requests for renewal for a Certificate. In all other cases, the vessel operator must submit the application or requests for renewal.

(c)For a United States-flag vessel, the applicable gross tons or gross tonnage, as referred to in subparts A and B of this part, is determined as follows:

(1)For a documented U.S. vessel measured under both 46 U.S.C. Chapters 143 (Convention Measurement) and 145 (Regulatory Measurement). The vessel's regulatory gross tonnage is used to determine whether the vessel exceeds 300 gross tons where that threshold applies under the Acts. If the vessel's regulatory gross tonnage is determined under the Dual Measurement System in 46 CFR part 69, subpart D, the higher gross tonnage is the regulatory gross tonnage for the purposes of determining whether the vessel meets the 300 gross ton threshold. The vessel's gross tonnage as measured under the International Convention on Tonnage Measurement of Ships, 1969 (“Convention”), is used to determine the vessel's required applicable amounts of financial responsibility, and limit of liability under section 1004(a) of OPA 90 and section 107 of CERCLA.

(2)For all other United States vessels. The vessel's gross tonnage under 46 CFR part 69 is used for determining the vessel's 300 gross ton threshold, the required applicable amounts of financial responsibility, and limits of liability under section 1004(a) of OPA 90 and section 107 of CERCLA. If the vessel's gross tonnage is determined under the Dual Measurement System, the higher gross tonnage is used in all determinations.

(d)For a vessel of a foreign country that is a party to the Convention, gross tons or gross tonnage, as referred to in subparts A and B of this part, is determined as follows:

(1)For a vessel assigned, or presently required to be assigned, gross tonnage under Annex I of the Convention. The vessel's gross tonnage as measured under Annex I of the Convention is used for determining the 300 gross ton threshold, if applicable, the required applicable amounts of financial responsibility, and limits of liability under section 1004(a) of OPA 90 and under section 107 of CERCLA.

(2)For a vessel not presently required to be assigned gross tonnage under Annex I of the Convention. The highest gross tonnage that appears on the vessel's U.S. Coast Guard Certificate of Documentation or equivalent document and that is acceptable to the Coast Guard under 46 U.S.C. chapter 143 is used for determining the 300 gross ton threshold, if applicable, the required applicable amounts of financial responsibility, and limits of liability under section 1004(a) of OPA 90 and section 107 of CERCLA. If the vessel has no document, or the gross tonnage appearing on the document is not acceptable under 46 U.S.C. chapter 143, the vessel's gross tonnage is determined by applying the Convention Measurement System under 46 CFR part 69, subpart B, or if applicable, the Simplified Measurement System under 46 CFR part 69, subpart E. The measurement standards applied are subject to applicable international agreements to which the United States Government is a party.

(e)For a vessel of a foreign country that is not a party to the Convention, gross tons or gross tonnage, as referred to in subparts A and B of this part, is determined as follows:

(1)For a vessel measured under laws and regulations found by the Commandant to be similar to Annex I of the Convention. The vessel's gross tonnage under the similar laws and regulations is used for determining the 300 gross ton threshold, if applicable, the required applicable amounts of financial responsibility, and limits of liability under section 1004(a) of OPA 90 and section 107 of CERCLA. The measurement standards applied are subject to applicable international agreements to which the United States Government is a party.

(2)For a vessel not measured under laws and regulations found by the Commandant to be similar to Annex I of the Convention. The vessel's gross tonnage under 46 CFR part 69, subpart B, or, if applicable, subpart E, is used for determining the 300 gross ton threshold, if applicable, the required applicable amount of financial responsibility, and the limits of liability under section 1004(a) of OPA 90 and section 107 of CERCLA. The measurement standards applied are subject to applicable international agreements to which the United States is a party.

(f)A person who agrees to act as a guarantor or a self-insurer is bound by the vessel's gross tonnage as determined under paragraphs (c), (d), or

(e)of this section, regardless of what gross tonnage is specified in an application or guaranty form submitted under this subpart. Guarantors, however, may limit their liability under a guaranty of financial responsibility to the applicable gross tonnage appearing on a vessel's International Tonnage Certificate or other official, applicable certificate of measurement and will not incur any greater liability with respect to that guaranty, except when the guarantors knew or should have known that the applicable tonnage certificate was incorrect. § 138.40 Forms. All forms referred to in this subpart may be obtained from NPFC by requesting them in writing at the address given in § 138.145(a) or by clicking on the “Forms” link at the NPFC E-COFR Web site, *http://www.npfc.gov/cofr* . § 138.45 Where to apply for and renew Certificates.

(a)An operator must file all applications for a Certificate and all requests for renewal of a Certificate, together with fees and evidence of financial responsibility, with the NFPC at the following address: U.S. Coast Guard, National Pollution Funds Center (Cv), 4200 Wilson Boulevard, Suite 1000, Arlington, VA 22203-1804, telephone

(202)493-6780, Telefax

(202)493-6781; or electronically using NPFC's E-COFR web-based process at *http://www.npfc.gov/cofr.*

(b)All requests you have for assistance in completing applications, requests for renewal and other submissions under this subpart, including telephone inquiries, should be directed to the U.S. Coast Guard NPFC at the addresses in paragraph

(a)of this section. § 138.50 Time to apply.

(a)A vessel operator who wishes to obtain a Certificate must submit a completed application form or request for renewal and all required supporting evidence of financial responsibility, and must pay all applicable fees, at least 21 days prior to the date the Certificate is required. The Director, NPFC, may grant an extension of this 21-day requirement for good cause shown.

(b)The Director, NPFC, generally processes applications and requests for renewal in the order in which they are received at the NPFC. § 138.60 Applications, general instructions.

(a)You may obtain an “Application for Vessel Certificate of Financial Responsibility (Water Pollution)” (Form CG-5585) by following the instructions in §§ 138.40 and 138.45.

(b)Your application and all supporting documents must be in English, and express all monetary terms in United States dollars.

(c)An authorized official of the applicant must sign the signature page of the application. The title of the signer must be shown in the space provided on the application. The operator must submit the original signature page of the application to NPFC in hard copy.

(d)The application must be accompanied by a written statement providing the signer the authority to sign, where the signer is not identified as an individual (sole proprietor) applicant, a partner in a partnership applicant, or a director, chief executive officer, or any other duly authorized officer of a corporate applicant.

(e)If, before the issuance of a Certificate, the applicant becomes aware of a change in any of the facts contained in the application or supporting documentation, the applicant must, within 5 business days of becoming aware of the change, notify the Director, NPFC, in writing, of the change. § 138.65 Issuance of Certificates. Upon the satisfactory demonstration of financial responsibility and payment of all fees due, the Director, NPFC, will issue a “Vessel Certificate of Financial Responsibility (Water Pollution)” in electronic form. Copies of the Certificate may be downloaded from NPFC's E-COFR Web site. § 138.70 Renewal of Certificates.

(a)The operator of a vessel required to have a Certificate under this subpart must file a written or E-COFR request for renewal of the Certificate at least 21 days, but not earlier than 90 days, before the expiration date of the Certificate. A letter may be used for this purpose. The request for renewal must comply in all other respects with the requirements in § 138.60 concerning applications. The Director, NPFC, may waive this 21-day requirement for good cause shown.

(b)The operator must identify in the request for renewal any changes which have occurred since the original application for a Certificate was filed, and must set forth the correct information in full. § 138.80 Financial responsibility, how established.

(a)*General.* In addition to submitting an application, requests for renewal and fees, an applicant must submit, or cause to be submitted, evidence of financial responsibility acceptable to the Director, NPFC, in an amount equal to the total applicable amount determined under § 138.80(f). A guarantor may submit the evidence of financial responsibility on behalf of the applicant directly to the Director, NPFC.

(b)*Methods.* An applicant or certificant must establish and maintain evidence of financial responsibility by one or more of the following methods:

(1)*Insurance.* By filing with the Director, NPFC, an “Insurance Guaranty” (Form CG-5586) or, when applying for a Master Certificate under § 138.110, a “Master Insurance Guaranty” (Form CG-5586-1), executed by not more than four insurers that have been found acceptable by, and remain acceptable to, the Director, NPFC, for purposes of this subpart.

(2)*Surety bond.* By filing with the Director, NPFC, a “Surety Bond Guaranty” (Form CG-5586-2), executed by not more than 10 acceptable surety companies certified by the United States Department of the Treasury with respect to the issuance of Federal bonds in the maximum penal sum of each bond to be issued under this subpart.

(3)*Self-insurance.* By filing the financial statements specified in paragraph (b)(3)(i) of this section for the applicant's fiscal year preceding the date of application and by demonstrating that the applicant or certificant maintains, in the United States, working capital and net worth each in amounts equal to or greater than the total applicable amount calculated in accordance with § 138.80(f)(3), based on a vessel carrying hazardous substances as cargo. As used in this paragraph, working capital means the amount of current assets located in the United States, less all current liabilities anywhere in the world; and net worth means the amount of all assets located in the United States, less all liabilities anywhere in the world. For each fiscal year after the initial submission, the applicant or certificant must also submit statements as follows:

(i)*Initial and annual submissions.* An applicant or certificant must submit annual, current, and audited non-consolidated financial statements prepared in accordance with Generally Accepted Accounting Principles, and audited by an independent Certified Public Accountant. These financial statements must be audited in accordance with Generally Accepted Auditing Standards. These financial statements must be accompanied by an additional statement from the Treasurer (or equivalent official) of the applicant or certificant certifying both the amount of current assets and the amount of total assets included in the accompanying balance sheet, which are located in the United States. If the financial statements cannot be submitted in non-consolidated form, a consolidated statement may be submitted if accompanied by an additional statement prepared by the same Certified Public Accountant, verifying the amount by which the applicant's or certificant's—

(A)Total assets, located in the United States, exceed its total (i.e., worldwide) liabilities; and

(B)Current assets, located in the United States, exceed its total (i.e., worldwide) current liabilities. This additional statement must specifically name the applicant or certificant, indicate that the amounts so verified relate only to the applicant or certificant, apart from any other affiliated entity, and identify the consolidated financial statement to which it applies.

(ii)*Semiannual submissions.* When the applicant's or certificant's demonstrated net worth is not at least ten times the total applicable amount of financial responsibility calculated in accordance with § 138.80(f)(3), the applicant's or certificant's Treasurer (or equivalent official) must file affidavits covering the first six months of the applicant's or certificant's current fiscal year. The affidavits must state that neither the working capital nor the net worth have, during the first six months of the current fiscal year, fallen below the applicant's or certificant's required total applicable amount of financial responsibility as determined in accordance with this subpart.

(iii)*Additional submissions.* An applicant or certificant—

(A)Must, upon request of the Director, NPFC, within the time specified in the request, submit additional financial information; and

(B)Who establishes financial responsibility under paragraph (b)(3) of this section must notify the Director, NPFC, within 5 business days of the date the applicant or certificant knows, or has reason to believe, that the working capital or net worth has fallen below the amounts required by this subpart.

(iv)*Time for submissions.* All required annual financial statements must be received by the Director, NPFC, within 90 days after the close of the applicant's or certificant's fiscal year, and all affidavits required by paragraph (b)(3)(ii) of this section within 30 days after the close of the applicable six-month period. The Director, NPFC, may grant an extension of the time limits for filing the annual financial statements, semi-annual affidavits or additional financial information upon written request and for good cause shown. An applicant or certificant seeking an extension of any of these deadlines must set forth the reason for the extension and deliver the request at least 15 days before the annual financial statements, affidavits or additional information are due. The Director, NPFC, will not consider a request for an extension of more than 60 days.

(v)*Failure to submit.* The Director, NPFC, may deny or revoke a Certificate for failure of the applicant or certificant to submit any statement, data, notification, or affidavit required by paragraph (b)(3) of this section.

(vi)*Waiver of working capital.* The Director, NPFC, may waive the working capital requirement for any applicant or certificant that—

(A)Is a regulated public utility, a municipal or higher-level governmental entity, or an entity operating solely as a charitable, non-profit organization qualifying under section 501(c) Internal Revenue Code. The applicant or certificant must demonstrate in writing that the grant of a waiver would benefit a local public interest; or

(B)Demonstrates in writing that working capital is not a significant factor in the applicant's or certificant's financial condition. An applicant's or certificant's net worth in relation to the amount of its required total applicable amount of financial responsibility and a history of stable operations are the major elements considered by the Director, NPFC.

(4)*Financial Guaranty.* By filing with the Director, NPFC, a “Financial Guaranty” (Form CG-5586-3), or, when applying for a Master Certificate, a “Master Financial Guaranty” (Form CG-5586-4), executed by not more than four financial guarantors, including but not limited to a parent or affiliate acceptable to the Coast Guard. A financial guarantor must comply with all of the self-insurance provisions of paragraph (b)(3) of this section. In addition, a person who is a financial guarantor for more than one applicant or certificant must have working capital and net worth no less than the aggregate total applicable amounts of financial responsibility calculated in accordance with § 138.80(f)(3) provided as a financial guarantor for each applicant or certificant, plus the total applicable amount required to be demonstrated by a self-insurer under this subpart if the financial guarantor is also acting as a self-insurer.

(5)*Other evidence of financial responsibility.* The Director, NPFC, will not accept a self-insurance method other than the one described in paragraph (b)(3) of this section. An applicant may in writing request that the Director, NPFC, accept a method different from one described in paragraph (b)(1), (2), or

(4)of this section to demonstrate evidence of financial responsibility. An applicant submitting a request under this paragraph must submit the request to the Director, NPFC, at least 45 days prior to the date the Certificate is required. The applicant must describe in detail the method proposed, the reasons why the applicant does not wish to use or is unable to use one of the methods described in paragraph (b)(1), (2), or

(4)of this section, and how the proposed method assures that the responsible parties for the vessel are able to fulfill their obligations to pay costs and damages in the event of an incident or a release or threatened release. The Director, NPFC, will not accept a method under this paragraph that merely deletes or alters a provision of one of the methods described in paragraph (b)(1), (2), or

(4)of this section (for example, one that alters the termination clause of the “Insurance Guaranty” (Form CG-5586). An applicant that makes a request under this paragraph must provide the Director, NPFC, a proposed guaranty form that includes all the elements described in paragraphs

(c)and

(d)of this section. A decision of the Director, NPFC, not to accept a method requested by an applicant under this paragraph is final agency action.

(c)*Forms* —(1) *Multiple guarantors.* Four or fewer insurers (a lead underwriter is considered to be one insurer) may jointly execute an “Insurance Guaranty” (Form CG-5586) or a “Master Insurance Guaranty” (Form CG-5586-1). Ten or fewer sureties (including lead sureties) may jointly execute a “Surety Bond Guaranty” (Form CG-5586-2). Four or fewer financial guarantors may jointly execute a “Financial Guaranty” (Form CG-5586-3). If more than one insurer, surety, or financial guarantor executes the relevant form—

(i)Each is bound for the payment of sums only in accordance with the percentage of vertical participation specified on the relevant form for that insurer, surety, or financial guarantor. Participation in the form of layering (tiers, one in excess of another) is not acceptable; only vertical participation on a percentage basis and participation with no specified percentage allocation is acceptable. If no percentage of participation is specified for an insurer, surety, or financial guarantor, the liability of that insurer, surety, or financial guarantor is joint and several for the total of the unspecified portions; and

(ii)The guarantors must designate a lead guarantor having authority to bind all guarantors for actions required of guarantors under the Acts, including but not limited to receipt of designation of source, advertisement of a designation, and receipt and settlement of claims.

(2)*Operator name.* An applicant or certificant must ensure that each form submitted under this subpart sets forth in full the correct legal name of the vessel operator to whom a Certificate is to be issued.

(d)*Direct Action* —(1) *Acknowledgment.* Any evidence of financial responsibility submitted under this subpart must contain an acknowledgment by each insurer or other guarantor that an action in court by a claimant (including a claimant by right of subrogation) for costs or damages arising under the provisions of the Acts, may be brought directly against the insurer or other guarantor. The evidence of financial responsibility must also provide that, in the event an action is brought under the Acts directly against the insurer or other guarantor, the insurer or other guarantor may invoke only the following rights and defenses:

(i)The incident, release, or threatened release was caused by the willful misconduct of the person for whom the guaranty is provided.

(ii)Any defense that the person for whom the guaranty is provided may raise under the Acts.

(iii)A defense that the amount of a claim or claims, filed in any action in any court or other proceeding, exceeds the amount of the guaranty with respect to an incident or with respect to a release or threatened release.

(iv)A defense that the amount of a claim or claims that exceeds the amount of the guaranty, which amount is based on the gross tonnage of the vessel as entered on the vessel's International Tonnage Certificate or other official, applicable certificate of measurement, except when the guarantor knew or should have known that the applicable tonnage certificate was incorrect.

(v)The claim is not one made under either of the Acts.

(2)*Limitation on guarantor liability.* A guarantor that participates in any evidence of financial responsibility under this subpart will be liable because of that participation, with respect to an incident or a release or threatened release, in any proceeding only for the amount and type of costs and damages specified in the evidence of financial responsibility. A guarantor will not be considered to have consented to direct action under any law other than the Acts, or to unlimited liability under any law or in any venue, solely because of the guarantor's participation in providing any evidence of financial responsibility under this subpart. In the event of any finding that liability of a guarantor exceeds the amount of the guaranty provided under this subpart, that guaranty is considered null and void with respect to that excess.

(e)*Public access to data.* Financial data filed by an applicant, certificant, and any other person is considered public information to the extent required by the Freedom of Information Act (5 U.S.C. 552) and permitted by the Privacy Act (5 U.S.C. 552a).

(f)*Total applicable amount.* The total applicable amount is determined as follows:

(1)The applicable amount under OPA 90 is equal to the applicable vessel limit of liability, which is determined as provided in subpart B of this part.

(2)The applicable amount under CERCLA is determined as follows:

(i)For a vessel over 300 gross tons carrying a hazardous substance as cargo, the greater of $5,000,000 or $300 per gross ton.

(ii)For any other vessel over 300 gross tons, the greater of $500,000 or $300 per gross ton.

(3)The total applicable amount is the applicable amount calculated under paragraph (f)(1) of this section plus the applicable amount calculated under paragraph (f)(2) of this section. § 138.85 Implementation schedule. The effective date of the applicable amounts in Subpart B of this part will be [INSERT DATE 90 DAYS AFTER PUBLICATION OF FINAL RULE IN THE **Federal Register** ]. In the event an applicable amount in Subpart B is amended by regulation, the effective date of the amended applicable amount will be 90 days after publication of a final rule in the **Federal Register** , unless another date is required by statute and specified in the amending regulation. Each operator of a vessel described in § 138.15, must have established, on or before the effective date of the applicable amount, evidence of financial responsibility acceptable to the Director, NPFC, in an amount equal to or greater than the total applicable amount. § 138.90 Individual and Fleet Certificates.

(a)The Director, NPFC, issues an individual Certificate for each vessel listed on a completed application or request for renewal when the Director, NPFC, determines that acceptable evidence of financial responsibility has been provided and appropriate fees have been paid, except where a Fleet Certificate is issued under this section or where a Master Certificate is issued under § 138.110. Each Certificate of any type issued under this subpart is issued only in the name of a vessel operator and is effective for not more than 3 years from the date of issue, as indicated on each Certificate. An authorized official of the applicant may submit to the Director, NPFC, a letter requesting that additional vessels be added to a previously submitted application for an individual Certificate. The letter must set forth all information required in item 5 of the application form. The authorized official must also submit, or cause to be submitted, acceptable evidence of financial responsibility, if required, and certification fees for these additional vessels.

(b)An operator of two or more barges that are not tank vessels and that from time to time may be subject to this subpart (e.g., a hopper barge over 300 gross tons when carrying oily metal shavings or similar cargo), so long as the operator of such a fleet is a self-insurer or arranges with an acceptable guarantor to cover, automatically, all such barges for which the operator may from time to time be responsible, may apply to the Director, NPFC, for issuance of a Fleet Certificate.

(c)A person must not make any alteration on any copy of a Certificate issued under this subpart.

(d)If, at any time after a Certificate has been issued, a certificant becomes aware of a change in any of the facts contained in the application or supporting documentation, the certificant must notify the Director, NPFC, in writing within 10 days of becoming aware of the change. A vessel or operator name change or change of a guarantor must be reported by the operator as soon as possible by telefax or other electronic means to the Director, NPFC, and followed by a written notice sent within 3 business days.

(e)Except as provided in § 138.90(f), at the moment a certificant ceases to be the operator of a vessel for any reason, including a vessel that is scrapped or transferred to a new operator, the individual Certificate naming the vessel is void and its further use is prohibited. In that case, the certificant must, within 10 business days of the Certificate becoming void, submit the following information in writing to the Director, NPFC:

(1)The number of the individual Certificate and the name of the vessel.

(2)The date and reason why the certificant ceased to be the operator of the vessel.

(3)The location of the vessel on the date the certificant ceased to be the operator.

(4)The name and mailing address of the person to whom the vessel was sold or transferred.

(f)In the event of the temporary transfer of custody of an unmanned barge certificated under this subpart, where the certificant transferring the barge continues to be liable under the Acts and continues to maintain on file with the Director, NPFC, acceptable evidence of financial responsibility with respect to the barge, the existing individual Certificate remains in effect. A temporary new individual Certificate is not required. A transferee is encouraged to require the transferring certificant to acknowledge in writing that the transferring certificant agrees to remain responsible for pollution liabilities. § 138.100 Non-owning operator's responsibility for identification.

(a)Each operator that is not an owner of a vessel certificated under this subpart, other than an unmanned barge, must ensure that the original or a legible copy of the demise charter-party (or other written document on the owner's letterhead, signed by the vessel owner, which specifically identifies the vessel operator named on the Certificate) is maintained on board the vessel.

(b)The demise charter-party or other document required by paragraph

(a)of this section must be presented, upon request, for examination and copying to a United States Government official. § 138.110 Master Certificates.

(a)A contractor or other person who is responsible for a vessel in the capacity of a builder, scrapper, lessor, or seller (including a repairer who agrees to be responsible for a vessel under its custody) may apply for a Master Certificate instead of applying for an individual Certificate for each vessel. A Master Certificate covers all of the vessels subject to this subpart held by the applicant solely for purposes of construction, repair, scrapping, lease, or sale. A vessel which is being operated commercially in any business venture, including the business of building, repairing, scrapping, leasing, or selling (e.g., a slop barge used by a shipyard) cannot be covered by a Master Certificate. Any vessel for which a Certificate is required, but which is not eligible for a Master Certificate, must be covered by either an individual Certificate or a Fleet Certificate.

(b)An applicant for a Master Certificate must submit an application form in the manner prescribed by §§ 138.40 through 138.60. An applicant must establish evidence of financial responsibility in accordance with § 138.80, by submission, for example, of an acceptable Master Insurance Guaranty Form, Surety Bond Guaranty Form, Master Financial Guaranty Form, or acceptable self-insurance documentation. An application must be completed in full, except for Item 5. The applicant must make the following statement in Item 5: “This is an application for a Master Certificate. The largest tank vessel to be covered by this application is [insert applicable gross tons] gross tons. The largest vessel other than a tank vessel is [insert applicable gross tons] gross tons.” The dollar amount of financial responsibility evidenced by the applicant must be sufficient to meet the amount required under this subpart.

(c)Each Master Certificate issued by the Director, NPFC, indicates—

(1)The name of the applicant (i.e., the builder, repairer, scrapper, lessor, or seller);

(2)The date of issuance and termination, encompassing a period of not more than 3 years; and

(3)The gross tons of the largest tank vessel and gross tons of the largest vessel other than a tank vessel eligible for coverage by that Master Certificate. The Master Certificate does not identify the name of each vessel covered by the Certificate.

(d)Each additional vessel which does not exceed the respective tonnages indicated on the Master Certificate and which is eligible for coverage by a Master Certificate is automatically covered by that Master Certificate. Before acquiring a vessel, by any means, including conversion of an existing vessel, that would have the effect of increasing the certificant's required applicable amount of financial responsibility (above that provided for issuance of the existing Master Certificate), the certificant must submit to the Director, NPFC, the following:

(1)Evidence of increased financial responsibility.

(2)A new certification fee.

(3)Either a new application or a letter amending the existing application to reflect the new gross tonnage which is to be indicated on a new Master Certificate.

(e)A person to whom a Master Certificate has been issued must submit to the Director, NPFC, every six months beginning the month after the month in which the Master Certificate is issued, a report indicating the name, previous name, type, and gross tonnage of each vessel covered by the Master Certificate during the preceding six-month reporting period and indicating which vessels, if any, are tank vessels. § 138.120 Certificates, denial or revocation.

(a)The Director, NPFC, may deny a Certificate when an applicant—

(1)Willfully or knowingly makes a false statement in connection with an application for an initial or renewal Certificate;

(2)Fails to establish acceptable evidence of financial responsibility as required by this subpart;

(3)Fails to pay the required application or certificate fees;

(4)Fails to comply with or respond to lawful inquiries, regulations, or orders of the Coast Guard pertaining to the activities subject to the Acts, including this subpart; or

(5)Fails to timely file required statements, data, notifications, or affidavits.

(b)The Director, NPFC, may revoke a Certificate when a certificant—

(1)Willfully or knowingly makes a false statement in connection with an application for an initial or a renewal Certificate, or in connection with any other filing required by this subpart;

(2)Fails to comply with or respond to lawful inquiries, regulations, or orders of the Coast Guard pertaining to the activities subject to this subpart; or

(3)Fails to timely file required statements, data, notifications, or affidavits.

(c)A Certificate is immediately invalid, and considered revoked, without prior notice, when the certificant—

(1)Fails to maintain acceptable evidence of financial responsibility as required by this subpart;

(2)Is no longer the responsible operator of the vessel in question; or

(3)Alters any copy of a Certificate.

(d)The Director, NPFC, will advise the applicant or certificant, in writing, of the intention to deny or revoke a Certificate under paragraph

(a)or

(b)of this section and will state the reason for the decision. Written advice from the Director, NPFC, that an incomplete application will be considered withdrawn unless it is completed within a stated period, is the equivalent of a denial.

(e)If the intended revocation under paragraph

(b)of this section is based on failure to timely file the required financial statements, data, notifications, or affidavits, the revocation is effective 10 days after the date of the notice of intention to revoke, unless, before revocation, the certificant demonstrates to the satisfaction of the Director, NPFC, that the required documents were timely filed or have been filed.

(f)If the intended denial is based on paragraph (a)(1) or (a)(4) of this section, or the intended revocation is based on paragraph (b)(1) or (b)(2) of this section, the applicant or certificant may request, in writing, an opportunity to present information for the purpose of showing that the applicant or certificant is in compliance with the subpart. The request must be received by the Director, NPFC, within 10 days after the date of the notification of intention to deny or revoke. A Certificate subject to revocation under this paragraph remains valid until the Director, NPFC, issues a written decision revoking the Certificate.

(g)An applicant or certificant whose Certificate has been denied under paragraph

(a)of this section or revoked under paragraph

(b)or

(c)of this section may request the Director, NPFC, to reconsider the denial or revocation. The certificant must file a request for reconsideration, in writing, to the Director, NPFC, within 20 days of the date of the denial or revocation. The certificant must state the reasons for reconsideration. The Director, NPFC, may issue a written decision on the request within 30 days of receipt, provided that failure by the Director, NPFC, to issue a decision within 30 days will be deemed an affirmation of a denial or revocation. Unless the Director, NPFC, issues a decision reversing the revocation, a revoked Certificate remains invalid. A decision by the Director, NPFC, affirming a denial or revocation, is final agency action. § 138.130 Fees.

(a)The Director, NPFC, will not issue a Certificate until the fees set forth in paragraphs

(c)and

(d)of this section have been paid.

(b)For those using E-COFR, credit card payment is required. Otherwise, fees must be paid in United States currency by check, draft, or postal money order made payable to the “U.S. Coast Guard”. Cash will not be accepted.

(c)An applicant who submits an application under this subpart must pay a non-refundable application fee of $200 for each application (i.e., individual Certificate, Fleet Certificate, or Master Certificate), except as follows:

(1)An application for an additional (i.e., supplemental) individual Certificate,

(2)An application to amend or renew an existing Certificate, or

(3)An application submitted within 90 days following a revocation or other invalidation of a Certificate.

(d)In addition to the application fee of $200, an applicant must pay a certification fee of $100 for each vessel for which a Certificate is requested. An applicant must pay the $100 certification fee for each vessel listed in, or later added to, an application for an individual Certificate(s). An applicant must pay the $100 certification fee to renew or to reissue a Certificate for any reason, including, but not limited to, a vessel or operator name change.

(e)A certification fee is refunded, upon receipt of a written request, if the application is denied or withdrawn before issuance of the Certificate. Overpayments of application and certification fees are refunded, on request, only if the refund is for $100 or more. However, any overpayments not refunded will be credited, for a period of 3 years from the date of receipt of the monies by the Coast Guard, for the applicant's possible future use or transfer to another applicant under this subpart. § 138.140 Enforcement.

(a)Any person who fails to comply with this subpart with respect to evidence of financial responsibility under section 1016 of OPA 90 (33 U.S.C. 2716) is subject to a civil penalty under section 4303(a) of that Act (33 U.S.C. 2716a(a)). In addition, under section 4303(b) of that Act (33 U.S.C. 2716a(b)), the Attorney General may secure such relief as may be necessary to compel compliance with the OPA 90 requirements of this subpart including termination of operations. Further, any person who fails to comply with this subpart with respect to evidence of financial responsibility under section 108(a) of CERCLA (42 U.S.C. 9608(a)), is subject to a Class I administrative civil penalty, a Class II administrative civil penalty or a judicial penalty under section 109 of CERCLA (42 U.S.C. 9609).

(b)The Secretary of the Department in which the U.S. Coast Guard is operating will withhold or revoke the clearance required by 46 U.S.C. § 60105 to any vessel subject to this subpart that has not provided the evidence of financial responsibility required by this subpart.

(c)The Coast Guard may deny entry to any port or place in the United States or the navigable waters of the United States, and may detain at a port or place in the United States in which it is located, any vessel subject to this subpart, which has not provided the evidence of financial responsibility required by this subpart.

(d)Any vessel subject to this subpart which is found operating in the navigable waters without having been issued a Certificate or maintained the necessary evidence of financial responsibility as required by this subpart is subject to seizure by, and forfeiture to, the United States.

(e)Knowingly and willfully using an altered copy of a Certificate, or using a copy of a revoked, expired or voided Certificate for anything other than recordkeeping purposes, is prohibited. If a Certificate is revoked, has expired or is rendered void for any reason, the certificant must cease using all copies of the Certificate for anything other than the operator's own historical recordkeeping purposes. § 138.150 Service of process.

(a)When executing the forms required by this subpart, each applicant, certificant and guarantor must designate thereon a person located in the United States as its agent for service of process for purposes of this subpart and for receipt of notices of responsible party designations and presentations of claims under the Acts (collectively referred to herein as “service of process”). Each designated agent must acknowledge the agency designation in writing unless the agent has already furnished the Director, NPFC, with a “master” (i.e., blanket) agency acknowledgment showing that the agent has agreed in advance to act as the United States agent for service of process for the applicant, certificant, or guarantor in question.

(b)If any applicant, certificant, or guarantor desires, for any reason, to change any designated agent, the applicant, certificant, or guarantor must notify the Director, NPFC, of the change. If a “master” agency acknowledgment for the new agent is not on file with NPFC, the applicant, certificant, or guarantor must furnish to the Director, NPFC, all the relevant information, including the new agent's acknowledgment, required in accordance with paragraph

(a)of this section. In the event of death, disability, unavailability, or similar event of a designated agent, the applicant, certificant, or guarantor must designate another agent in accordance with paragraph

(a)of this section within 10 days of knowledge of any such event. The applicant, certificant, or guarantor must submit the new designation to the Director, NPFC. The Director, NPFC, may deny or revoke a Certificate if an applicant, certificant, or guarantor fails to designate and maintain an agent for service of process.

(c)If a designated agent cannot be served because of death, disability, unavailability, or similar event, and another agent has not been designated under this section, then service of process on the Director, NPFC, will constitute valid service of process. Service of process on the Director, NPFC, will not be effective unless the server—

(1)Sends the applicant, certificant, or guarantor, as applicable (by registered mail, at the last known address on file with the Director, NPFC), a copy of each document served on the Director, NPFC; and

(2)Attests to this registered mailing, at the time process is served upon the Director, NPFC, indicating that the intent of the mailing is to effect service of process on the applicant, certificant, or guarantor and that service on the designated agent is not possible, stating the reason why. Subpart B—OPA 90 Limits of Liability (Vessels and Deepwater Ports) § 138.200. Scope. This subpart sets forth the limits of liability for vessels and deepwater ports under Section 1004 of the Oil Pollution Act of 1990 (33 U.S.C. 2704) (OPA 90), as amended, including consumer price index adjustments pursuant to Section 1004(d) of OPA 90 (33 U.S.C. 2704(d)). § 138.210. Applicability. This subpart applies to responsible parties for—

(a)Vessels under Section 1001(37) of OPA 90 (33 U.S.C. 2701(37)); and

(b)Deepwater ports under Section 1001(6) of OPA 90 (33 U.S.C. 2701(6)). § 138.220. Limits of liability.

(a)The limits of liability for responsible parties of vessels under OPA 90, as amended, are—

(1)For a tank vessel greater than 3,000 gross tons with a single-hull, including a single-hull vessel fitted with double sides only or a double bottom only, the greater of $3,000 per gross ton or $22,000,000;

(2)For a tank vessel greater than 3,000 gross tons, other than a vessel referred to in § 138.220(a)(1), the greater of $1,900 per gross ton or $16,000,000.

(3)For a tank vessel less than or equal to 3,000 gross tons with a single-hull, including a single-hull vessel fitted with double sides only or a double bottom only, the greater of $3,000 per gross ton or $6,000,000.

(4)For a tank vessel less than or equal to 3,000 gross tons, other than a vessel referred to in § 138.220(a)(3), the greater of $1,900 per gross ton or $4,000,000.

(5)For any other vessel, the greater of $950 per gross ton or $800,000.

(b)The limits of liability for deepwater ports under OPA 90, as amended, are—

(1)For a deepwater port other than the Louisiana Offshore Oil Port (LOOP), $350,000,000; and

(2)For LOOP, $62,000,000. Dated: January 23, 2008. William Grawe, Acting Director, National Pollution Funds Center, United States Coast Guard. [FR Doc. E8-1516 Filed 2-4-08; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2007-1091; FRL-8525-5] Approval and Promulgation of Implementation Plans Kentucky: Tennessee Valley Authority Paradise Facility State Implementation Plan Revision AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a source specific State Implementation Plan

(SIP)revision submitted on October 19, 2007, by the Kentucky Division for Air Quality (KDAQ). The purpose of the SIP revision is to remove from the Kentucky State Implementation Plan a previous source-specific revision approved by EPA on August 25, 1989, and relating to the redistribution of sulfur dioxide (SO 2 ) emissions from Tennessee Valley Authority's (TVA's) Paradise Steam Plant located in Muhlenburg County, Kentucky. This proposal includes SO 2 limits that are more stringent than the current SIP-approved statewide SO 2 limits for electric generating units (EGUs). Consistent with Kentucky Administrative Regulations

(KAR)approved into the SIP, affected facilities located in Muhlenberg County are subject to an SO 2 emission limit of 3.1 pounds per million British Thermal Units (lbs/mmBTU). The 3.1 lbs/mmBTU limit was approved by EPA in June 24, 1983, as part of Kentucky's control strategy for attaining and maintaining the primary and secondary SO 2 national ambient air quality standard (NAAQS) in Muhlenberg County. This SIP revision proposes a limit of 1.2 lbs/mmBTU for all three units with limited bypass emissions of 3.1 lbs/mmBTU for scrubber maintenance on Unit 3. DATES: Written comments must be received on or before March 6, 2008. ADDRESSES: Submit your comments, identified by Docket ID Number, “EPA-R04-OAR-2007-1091,” by one of the following methods: 1. *www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail: lesane.heidi@epa.gov.* 3. *Fax:* 404-562-9019. 4. *Mail:* “EPA-R04-OAR-2007-1091,” Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 5. *Hand Delivery or Courier:* Heidi LeSane, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays. *Instructions:* Direct your comments to Docket ID Number, “EPA-R04-OAR-2007-1091.” EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit through *www.regulations.gov* or e-mail, information that you consider to be CBI or otherwise protected. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays. FOR FURTHER INFORMATION CONTACT: Heidi LeSane, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is

(404)562-9074. Ms. LeSane can also be reached via electronic mail at *lesane.heidi@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. What Action Is EPA Proposing? II. What is the Background for EPA's Proposed Action? III. Proposed Action IV. Statutory and Executive Order Reviews I. What Action Is EPA Proposing? EPA is proposing to approve a source-specific SIP revision submitted by KDAQ on October 19, 2007. The purpose of the SIP revision is to change and update the Kentucky SIP with regard to applicable SO 2 emissions limits for the TVA Paradise Plant located in Muhlenberg County, Kentucky. The new proposed limits are 1.2 lbs/mmBTU for all three units with limited bypass emissions of 3.1 lbs/mmBTU during scrubber maintenance on Unit 3. A previous source-specific SIP revision was approved by EPA on August 25, 1989 (54 FR 35326). The proposed change is consistent with Kentucky Revised Statutes Chapter 224.10-100, and associated KAR including 401 KAR 61:015, Appendix B. These KAR, which are SIP-approved, allow for an SO 2 emission limit of 3.1 lbs/mmBTU at the TVA Paradise facility. The 3.1 lbs/mmBTU limit described in 401 KAR 61:015 was approved by EPA on June 24, 1983 (48 FR 28988) as part of Kentucky's control strategy for attaining and maintaining the primary SO 2 NAAQS in Muhlenberg County. The current source specific revision proposes SO 2 limits for TVA Paradise that are more stringent than those approved in August 25, 1989, however, 401 KAR 61:015 would be the backstop ( *i.e.* , emissions could not exceed those allowed pursuant to 401 KAR 61:015). II. What Is the Background for EPA's Proposed Action? The Clean Air Act

(CAA)requires EPA to set NAAQS for pollutants considered to be harmful to public health and the environment. The CAA established two types of NAAQS: Primary and secondary NAAQS. Primary NAAQS are set in order to protect public health, including the health of sensitive populations such as asthmatics, children, and the elderly. Secondary NAAQS are set in order to protect public welfare, including protection against visibility impairment, damage to animals, crops, vegetation, and buildings. EPA has established primary and secondary NAAQS for the criteria pollutant SO 2 . Muhlenberg County, Kentucky, the location of the TVA Paradise facility, is currently designated as attainment for the primary and secondary SO 2 NAAQS, as well as all of the other NAAQS. In 1978, EPA designated Muhlenberg County, Kentucky, as nonattainment for primary and secondary SO 2 NAAQS (43 FR 8962, March 3, 1978). In 1979 Kentucky submitted a SIP revision including its SO 2 control strategy, which provided for attainment and maintenance of the SO 2 NAAQS. As part of that submittal, the control strategy used dispersion modeling (mathematical formulations to characterize the atmospheric processes that disperse a pollutant emitted by a source) to show that more stringent SO 2 emission limits at several sources, including the TVA Paradise facility, would be adequate to insure attainment of both the primary and secondary SO 2 NAAQS. Kentucky's 1979 SO 2 control strategy SIP submittal included state regulations establishing SO 2 emissions limits for steam generating plants in every county. Specifically, 401 KAR 61:015, sets the SO 2 limit for each unit within a county depending on the type of fuel used by the unit and the rated heat input capacity for the specific unit. For facilities with a maximum rated heat input capacity of 21,000 BTU or more, like the TVA Paradise facility, the applicable SO 2 limit, pursuant to 401 KAR 61:015, is 3.1 lbs/mmBTU on a 24-hour average. In addition to 401 KAR 61:015, the 1979 control strategy submittal also included a compliance schedule for TVA Paradise to achieve the 3.1 lb/mmBTU limit at each unit by September 1, 1982. Pursuant to the terms of a federal private party consent decree ( *Tennessee Thoracic Society* v. *Freeman,* Case No. 77-3286, U.S. District Court for the Middle District of Tennessee) negotiated in 1979 and signed in December 1980, the TVA Paradise facility was allowed to meet a limit of 5.2 lbs/mmBTU limit at Unit 3 until December 1, 1983, at which time the facility was required to meet the limit of 3.1 lbs/mmBTU, pursuant to 401 KAR 61.015. On October 31, 1980, EPA took final action to approve Kentucky's SO 2 control strategy SIP, including approval of the 3.1 lb/mmBTU SO 2 limit established by 401 KAR 61:015 (45 FR 72153). Subsequently, on June 24, 1983, EPA approved a request by Kentucky to redesignate Muhlenberg County to attainment for the primary SO 2 NAAQS (48 FR 28988). In 1987, TVA requested a redistribution of allowable SO 2 emissions at the Paradise facility such that each of its three units would have a specific limit that when considered together, would be equivalent to 3.1 lbs/mmBTU averaged over a 24-hour period (as required by the KAR). The TVA Paradise facility has two units (Units 1 and 2) with an electric generating capacity of approximately 704 megawatts

(MW)each, and a third unit (Unit 3) with an electric generating capacity of approximately 1150 MW. The 1987 submittal included an equivalency demonstration that explained how the unit-specific limits were equivalent to the KAR requirement of 3.1 lbs/mmBTU. As described in the 1987 submittal, for Units 1 and 2, the SO 2 the emission limit would be 1.2 lbs/mmBTU, with a maximum heat input of 6,305 mmBTU/hour, and for Unit 3, the SO 2 emission limit would be 5.4 lbs/mmBTU, with a maximum heat input of 10,390 mmBTU/hour. Kentucky's 1987 submittal also contained a final state operating permit issued to TVA for the Paradise facility (permit number 0-87-012) which included these new limits. On August 25, 1989, EPA took final action to approve the source-specific SIP revision for TVA Paradise into the Kentucky SIP (54 FR 35326). EPA's approval of that revision was based on EPA's finding that the SO 2 limits in addition to the heat input rates, made the redistribution equivalent to the SIP-approved 3.1 lbs/mmBTU limit. TVA's 1987 operating permit included the SO 2 limits described in the 1989 SIP revision. The actions summarized above, including the 1989 final action and accompanying equivalency determination are available in the Docket for the current proposed action. In 1998, EPA approved Kentucky's request to redesignate Muhlenberg County as attainment for the secondary SO 2 NAAQS (63 FR 44143, August 18, 1998). Dispersion modeling performed by EPA and Kentucky demonstrated that the existing measures approved in the SIP (including the TVA Paradise source-specific SO 2 emissions distribution) were adequate to protect the secondary SO 2 NAAQS. On October 19, 2007, Kentucky submitted to EPA a source-specific SIP revision requesting that the 1989 source-specific redistribution of SO 2 emission limits for TVA Paradise be revised to account for new control technology at the facility. Kentucky proposed that the TVA Paradise facility be subject to specific limits discussed below which are more stringent than the backstop of Kentucky's SIP-approved KAR, requiring a 3.1 lbs/mmBTU. The rationale for the 1989 redistribution was the lack of control measures (a scrubber) on Unit 3. TVA has now installed a wet scrubber on Unit 3, and as a result, the 1989 redistribution is no longer necessary for the facility to comply with the SIP-approved 401 KAR 61:015. At this time, Units 1 and 2 are equipped with Venturi-type limestone slurry flue gas desulfurization

(FGD)scrubbers, and Unit 3 is equipped with an electrostatic precipitator and a wet limestone FGD scrubber. The facility is now able to meet (and exceed) the requirements of 401 KAR 61:015 without a unit-specific redistribution. As described by Kentucky in the October 2007 SIP submittal, due to the installation of control technology at the facility, it is now possible for the Paradise facility to meet not only the current KAR, but even further control the facility to meet a lower limit. Therefore, Kentucky proposed that the facility continue to meet an SO 2 emissions limit of 1.2 lbs/mmBTU for Units 1 and 2, and also meet a limit of 1.2 lb/mmBTU on Unit 3 when the scrubber is operating. Because Unit 3 has a “single-module” scrubber which cannot be operated during maintenance events, Kentucky proposed that the facility meet the SIP-approved KAR limit of 3.1 lb/mmBTU on a 24-hour average during the limited times when the scrubber is bypassed for maintenance. Provisions limiting the number of hours when the scrubber can be by-passed are conditioned in the most recent title V operating permit issued on November 1, 2007, and shall not exceed 720 hours in any 12-month period. Kentucky's October 2007 source-specific SIP revision therefore proposes SO 2 limits for the Paradise facility that are more stringent than the SIP-approved KAR. Kentucky's SIP submittal includes technical support information comparing the limits required by KAR with the current proposed source-specific revision. This information is available in the Docket for this proposed action. The new limits will be included in a CAA title V operating permit. Consistent with Section 110 of the CAA, EPA is proposing to approve this revision to the Kentucky SIP. The revision would supersede the 1989 source-specific SIP revision for the TVA Paradise facility and subject the facility to the specific SO 2 emission limits discussed above. III. Proposed Action EPA is proposing to approve a source-specific SIP revision submitted by KDAQ in October 2007 regarding the SO 2 emission limits for the three units at the TVA Paradise Facility. This proposal would supersede the 1989 source-specific SIP revision and subject TVA Paradise to emission limits of 1.2 lbs/mmBTU at Units 1, 2, and 3, except that Unit 3 may meet the limit of 3.1 lbs/mmBTU that is established in 401 KAR 61:015 during the limited times when the Unit 3 scrubber is bypassed for maintenance. Now that TVA has installed the control technology necessary to achieve the KAR limit of 3.1 lbs/mmBTU at all three units of the Paradise facility, the previous redistribution is no longer necessary. This proposed revision is consistent with Section 110 of the CAA because it will continue to provide for attainment and maintenance of the SO 2 NAAQS. IV. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this proposed action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely approves Kentucky law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under Kentucky law and does not impose any additional enforceable duty beyond that required by Kentucky law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a Kentucky rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the Commonwealth to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: January 24, 2008 Russell L. Wright, Jr., Acting Regional Administrator, Region 4. [FR Doc. E8-2089 Filed 2-4-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [FRL-8523-8] National Oil and Hazardous Substance Pollution Contingency Plan National Priorities List AGENCY: Environmental Protection Agency. ACTION: Notice of intent to delete the Industrial Waste Control Superfund Site from the National Priorities List. SUMMARY: The Environmental Protection Agency

(EPA)Region 6 is issuing a notice of intent to delete the Industrial Waste Control Superfund Site located in Fort Smith, Arkansas from the National Priorities List

(NPL)and requests public comments on this notice of intent. The NPL, promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is found at Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of Arkansas, through the Arkansas Department of Environmental Quality (ADEQ), have determined that all appropriate response actions under CERCLA, other than operation and maintenance and five-year reviews, have been completed. However, this deletion does not preclude future actions under Superfund. In the “Rules and Regulations” Section of this **Federal Register** , we are publishing a direct final notice of deletion of the Industrial Waste Control Superfund Site without prior notice of intent to delete because we view this as a noncontroversial revision and anticipate no adverse comment. We have explained our reasons for this deletion in the direct final deletion. If we receive no adverse comment(s) on the direct final notice of deletion, we will not take further action on this notice of intent to delete. If we receive adverse comment(s), we will withdraw the direct final notice of deletion, and it will not take effect. We will, as appropriate, address all public comments in a subsequent final deletion notice based on this notice of intent to delete. We will not institute a second comment period on this notice of intent to delete. Any parties interested in commenting must do so at this time. For additional information see the direct final notice of deletion located in the Rules section of this **Federal Register** . DATES: Comments concerning this Site must be received by March 6, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-1983-0002 Notice 4, by one of the following methods: *http://www.regulations.gov* (Follow the on-line instructions for submitting comments) *E-mail:* *walters.donn@epa.gov.* *Fax:* 214-665-6660. *Mail:* Donn Walters, Community Involvement, U.S. EPA Region 6 (6SF-TS), 1445 Ross Avenue, Dallas, TX 75202-2733,

(214)665-6483 or 1-800-533-3508. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-SFUND-1983-0002 Notice 4. EPA policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information, disclosure of which is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will automatically be captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption and be free of any defects or viruses. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information disclosure of which is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically at *http://www.regulations.gov* or in hard copy at the information repositories. FOR FURTHER INFORMATION CONTACT: Shawn Ghose M.S., P.E., Remedial Project Manager (RPM), U.S. EPA Region 6 (6SF-RA), 1445 Ross Avenue, Dallas, TX 75202-2733, *ghose.shawn@epa.gov*

(214)665-6782 or 800-533-3508. SUPPLEMENTARY INFORMATION: For additional information see the Direct Final Notice of Deletion located in the “Rules” section of this **Federal Register** . *Information Repositories:* Repositories have been established to provide detailed information concerning this decision at the following locations: U.S. EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733,

(214)665-6617, by appointment only Monday through Friday 9 a.m. to 12 p.m. and 1 p.m. to 4 p.m.; Fort Smith Public Library, 3201 Rogers Avenue, Ft. Smith, AR 72903,

(479)783-0229, Monday through Thursday, 9 a.m. to 9 p.m., 9 a.m. to 6 p.m. Friday, 10 a.m. to 5 p.m. Saturday and 1 p.m. to 5 p.m. Sunday; Arkansas Department of Environmental Quality (ADEQ), 5301 Northshore Drive, North Little Rock, Arkansas 72118,

(501)682-0744, Monday through Friday 8 a.m. to 4:30 p.m. List of Subjects in 40 CFR Part 300 Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193. Dated: September 28, 2007. Richard E. Greene, Regional Administrator, EPA Region 6. Editorial Note: This document was received at the Office of the Federal Register on January 30, 2008. [FR Doc. E8-1963 Filed 2-4-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS-R6-ES-2008-0013; 1111 FY07 MO-B2] Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Gunnison's Prairie Dog as Threatened or Endangered AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of a 12-month petition finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our 12-month finding on a petition to list the Gunnison's prairie dog ( *Cynomys gunnisoni* ) as an endangered or threatened species under the Endangered Species Act of 1973, as amended (Act). After a thorough review of all available scientific and commercial information, we find that the species is not threatened or endangered throughout all of its range, but that the portion of the current range of the species located in central and south-central Colorado and north-central New Mexico (the northeastern portion of the range) represents a significant portion of the range where the Gunnison's prairie dog is warranted for listing under the Act. Currently, listing is precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. We have assigned a listing priority number

(LPN)of 2 to this species, because threats have a high magnitude, and are imminent. We will develop a proposed rule to list the Gunnison's prairie dog in the northeastern (montane) portion of its range as our priorities allow. DATES: This finding was made on February 5, 2008. ADDRESSES: This finding is available on the Internet at *http://www.regulations.gov* and *http://www.fws.gov/mountain-prairie/species/mammals/gunnisonprairiedog* . Supporting documentation we used to prepare this finding is available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Western Colorado Field Office, 764 Horizon Drive, Building B, Grand Junction, CO 81506-3946; telephone

(970)243-2778; facsimile

(970)245-6933. Please submit any new information, materials, comments, or questions concerning this finding to the above address. FOR FURTHER INFORMATION CONTACT: Al Pfister, Field Supervisor, U.S. Fish and Wildlife Service, Western Colorado Field Office (see ADDRESSES ). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service

(FIRS)at 800-877-8339. SUPPLEMENTARY INFORMATION: Background Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 *et seq.* ), requires that, for any petition containing substantial scientific and commercial information that listing may be warranted, we make a finding within 12 months of the date of receipt of the petition on whether the petitioned action is—(a) not warranted,

(b)warranted, or

(c)warranted, but that immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are threatened or endangered, and whether expeditious progress is being made to add or remove qualified species from the Lists of Endangered and Threatened Wildlife and Plants. Section 4(b)(3)(C) of the Act requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding; that is, requiring a subsequent finding to be made within 12 months. We must publish these 12-month findings in the **Federal Register** . Previous Federal Actions On February 23, 2004, we received a petition from Forest Guardians and 73 other organizations and individuals requesting that the Gunnison's prairie dog (found in Arizona, Colorado, New Mexico, and Utah) be listed as threatened or endangered. On July 29, 2004, we received a 60-day notice of intent to sue for failure to complete a finding. On December 7, 2004, an amended complaint for failure to complete a finding for this and other species was filed. We reached a settlement agreement with the plaintiffs, and on February 7, 2006, we published a 90-day finding in the **Federal Register** (71 FR 6241) determining that the petition did not present substantial scientific information indicating that listing the Gunnison's prairie dog species may be warranted. On August 17, 2006, Forest Guardians and eight other organizations and individuals provided written notice of their intent to sue regarding the determination in the 90-day finding. On December 13, 2006, the plaintiffs filed a complaint challenging the finding. On June 29, 2007, we reached a settlement agreement with the plaintiffs for submittal to the **Federal Register** of a 12-month finding by February 1, 2008. The court adopted the terms and conditions of the agreement on July 2, 2007. On August 28, 2007, we published a notice initiating the 12-month finding and opening a 60-day public comment period on the Gunnison's prairie dog (72 FR 49245). Species Information A description of the Gunnison's prairie dog is included in the 90-day petition finding (71 FR 6241; February 7, 2006) and in a concise review of the published information by Underwood (2007, pp. 6-13). In addition, we used data in the Western Association of Fish and Wildlife Agencies' (WAFWA) Gunnison's Prairie Dog Conservation Assessment (Seglund *et al.* 2005) to complete much of our analysis in this finding. The Gunnison's prairie dog has sometimes been divided into two subspecies: *Cynomys gunnisoni gunnisoni* and *C. g. zuniensis* (Hollister 1916, p. 29). We currently regard the Gunnison's prairie dog as a single species because the most recent published analyses (Goodwin 1995, pp. 100, 101, 110; Pizzimenti 1975, pp. 11, 15, 63) do not support subspecies designation. Unpublished research (Hafner 2004, p. 6; Hafner *et al.* 2005, p. 2) indicates that the distribution of mitochondrial DNA (deoxyribonucleic acid) haplotype lineages supports past geographic isolation, followed by limited mixing in regions coincident with the recognized borders of the two purported subspecies. Although this analysis will likely be substantiated through additional research, it is still preliminary and needs to be verified before we can use it as evidence for subspecies designation. For the same reasons, although Gunnison's prairie dogs in montane habitat may be “markedly separate” from those in prairie habitat, we are not proposing listing the montane prairie dogs as a distinct population segment

(DPS)under our Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (61 FR 4722; February 7, 1996). We anticipate that future funding may become available for genetic, taxonomic, and range research to determine whether subspecies or DPS status is valid. Gunnison's prairie dogs are a colonial species, historically occurring in large colonies over large areas. Colonial behavior offers an effective defense mechanism by aiding in the detection of predators, but it also can play an important role in the transmission of disease (Antolin *et al.* 2002, p. 19; Biggins and Kosoy 2001, p. 911). Complexes of Gunnison's prairie dog colonies (metapopulations) expand or contract over time depending upon various natural factors (such as reproduction, food availability, and disease) and human-caused factors (such as chemical control and shooting). To substantially augment depleted populations or replace populations without human intervention, a metapopulation structure is required across the landscape so that migration between colonies is possible (Gilpin and Soule 1986, p. 24; Clark *et al.* 1982, pp. 574-575; Lomolino and Smith 2001, p. 938). Habitat Gunnison's prairie dog habitat includes level to gently sloping grasslands and semi-desert and montane shrublands, at elevations from 6,000 to 12,000 feet (1,830 to 3,660 meters) (Bailey 1932, p. 125; Findley *et al.* 1975, p. 133; Fitzgerald *et al.* 1994, p. 183; Pizzimenti and Hoffman 1973, p. 1; Wagner and Drickamer 2002, p. 4). Grasses are the most important food item, with forbs, sedges, and shrubs also occasionally used (Pizzimenti and Hoffman 1973, p. 3; Shalaway and Slobodchikoff 1988, p. 840). Gunnison's prairie dog range can be considered to occur in two separate range portions—higher elevations in the northeast part of the range and lower elevations elsewhere (Bailey 1932, pp. 125-127; Pizzimenti and Hoffman 1973, pp. 1-2; Hall 1981, p. 7; Knowles 2002, p. 4). We refer to these areas as montane and prairie, respectively, throughout the document to differentiate them; however, we recognize that these terms are an oversimplification of the actual habitats present, and describe them in more detail below. In Figure 1, we provide a map illustrating the division of the general range of the species into the northeastern (montane) and southwestern (prairie) portions. The outer boundary in Figure 1 is referenced from maps depicting the species' gross range (Hollister 1916, p. 24; Pizzimenti and Hoffman 1973, p. 2; Pizzimenti 1975, p. 4; Hall 1981, p. 415; Knowles 2002, p. 6), and from maps of the species' range in Arizona (Hoffmeister 1986, p. 194), Colorado (Armstrong 1972, p. 139; Fitzgerald *et al.* 1994, p. 185), New Mexico (Findley *et al.* 1975, p. 133), and Utah (Durrant 1952, p. 106). An approximate boundary dividing the montane and prairie range portions was established from several maps that recognize discrete range portions for each of the two purported subspecies, *Cynomys gunnisoni gunnisoni* and *C. g. zuniensis* (Hollister 1916, p. 24; Armstrong 1972, p. 139; Pizzimenti and Hoffman 1973, p. 2; Pizzimenti 1975, p. 4; Hall 1981). Maps that depict the geographic variation in Gunnison's prairie dog mitochondrial DNA in southern Colorado and northern New Mexico (Hafner 2004, p. 6; Hafner *et al.* 2005, p. 2) were used to improve the resolution of the montane and prairie boundary in this region, as these maps provide a boundary based on genetic differences between Gunnison's prairie dogs in the two range portions. Lastly, we used topographic maps to adjust the boundary on a finer scale along the mountain ranges and ridges of southern Colorado and northern New Mexico, because geography partly separates the Gunnison's prairie dog populations and allows limited overlap between the two range portions (Knowles 2002, p. 3; Hafner *et al.* 2005, p. 1). In summary, the maps we used to delineate the montane and prairie range portions vary in their age, projection, scale, and accuracy, and depict boundaries based on geography, morphological traits of Gunnison's prairie dog populations, and genetic characteristics from Hafner's work (Hafner 2004, p. 6; Hafner *et al.* 2005, p. 2). They contribute to the best available information used to establish the montane and prairie portions of the species' range for further analysis. BILLING CODE 4310-55-P EP05FE08.000 BILLING CODE 4310-55-C Montane Habitat The northeastern range (central and south-central Colorado, and north-central New Mexico) consists primarily of higher elevation, cooler and more mesic plateaus, benches, and intermountain valleys. We call this portion “montane” for ease of reference, and it comprises approximately 40 percent of the total potential habitat within the current range. Gunnison's prairie dogs occupy grass-shrub areas in low valleys and mountain meadows within this habitat (Seglund *et al.* 2005, p. 12). The Gunnison's prairie dogs in this portion of the range are limited by pronounced physiographic barriers (Pizzimenti and Hoffman 1973, p. 1), including the Uncompahgre Plateau and San Juan mountains in Colorado and Utah, and the Sangre de Cristo, San Juan, and Jemez mountain ranges in New Mexico. Prairie Habitat The southwestern range (southeastern Utah, southwestern Colorado, northwestern New Mexico, and northeastern Arizona) consists primarily of lower elevation, warmer and more xeric plains and plateaus (Bailey 1932, pp. 125-127; Pizzimenti and Hoffman 1973, pp. 1-2; Hall 1981, p. 7; Knowles 2002, p. 4). We call this portion “prairie” for ease of reference, and it comprises approximately 60 percent of total potential habitat within the current range. Gunnison's prairie dogs occupy shortgrass and mid-grass prairies within this habitat (Seglund *et al.* 2005, p. 12). Distribution, Abundance, and Trends The current distribution of the species includes northeastern Arizona; central, south-central, and southwestern Colorado; north-central and northwestern New Mexico; and extreme southeastern Utah (Bailey 1932, pp. 125-127; Pizzimenti and Hoffman 1973, pp. 1-2; Hall 1981, p. 7; Knowles 2002, p. 4) (see Figure 1 above). Limited overlap occurs in the ranges of Gunnison's prairie dogs and black-tailed prairie dogs ( *Cynomys ludovicianus* ) in New Mexico (Goodwin 1995, p. 101; Sager 1996, p. 1), and Gunnison's prairie dogs and white-tailed prairie dogs ( *Cynomys leucurus* ) in Colorado (Knowles 2002, p. 5), but we have no evidence that interbreeding is occurring. Currently, 27 percent of potential Gunnison's prairie dog habitat occurs in Arizona, 25 percent in Colorado, 45 percent in New Mexico, and 3 percent in Utah (Seglund *et al.* 2005, p. 83). We used the data in Seglund *et al.* (2005, pp. 82, 85-87) to calculate that approximately 22 percent of the potential habitat occurs on private lands, 12 percent on State lands, 17 percent on Federal lands, and 49 percent on Tribal lands/Bureau of Indian Affairs (BIA). The Tribal lands habitat occurs mostly in Arizona and New Mexico; a large amount of potential habitat is on Navajo lands (Cole, p. 1). Most estimates of prairie dog populations in the available literature are expressed in terms of area (acres

(ac)or hectares (ha)) of occupied habitat rather than in numbers of individuals, most likely because counting individuals is feasible only for small areas (Biggins *et al.* 2006, p. 94). Also, the number of animals present in a locality has been observed to vary with habitat, season, colony age, precipitation, forage, predation, disease, chemical control, shooting, and other factors (Knowles 2002, pp. 7-8); density of individuals typically ranges from 2 to 23 per ac (5 to 57 per ha) (Fitzgerald *et al.* 1994, p. 184). Most prairie dog surveys do not result in a density estimate because of the associated effort and cost. Estimates of Gunnison's prairie dog occupied habitat provide one of the best available and most reasonable means of evaluating the status of the species across its range. Obtaining estimates of occupied area is itself time-consuming and costly. Ground or aerial mapping of colonies over a predicted habitat range of 23 million ac (9.5 million ha) in 4 States would be required to determine a rangewide estimate of the area occupied by the Gunnison's prairie dog (Seglund *et al.* 2005, pp. 17-19). Recent attempts at less expensive aerial surveys (for example, air photo interpretation) have been limited in their effectiveness when applied to Gunnison's prairie dogs (Johnson *et al.* 2006, p. 3; Seglund *et al.* 2005, pp. 23-24). Whether surveying is performed from the air or on the ground, it is often difficult to accurately and consistently discern colony boundaries (thus introducing error in the area measurements). Older studies did not benefit from technologies such as global positioning systems and geographic information systems

(GIS)in mapping colonies. Accuracy suffers when studies are performed over the longer time intervals necessary to visit large range portions, because colony area, location, and persistence on the landscape often change relatively quickly (Wagner *et al.* 2006, p. 335). In summary, we recognize that different methodologies were used at different times and in different locales to derive the various historical occupied area estimates we obtained for review. These estimates contribute to the best available information, and we consider them comparable for determining long-term population trends, while acknowledging potential error margins on the scale of an order of magnitude. Since our 90-day finding in 2006, all States within the range of the species have applied occupancy modeling methodology to investigate the habitat occupied by Gunnison's prairie dogs. This is a newer technique that yields estimates of the percentage of random plots occupied across the habitat range under consideration (MacKenzie *et al.* 2002, pp. 2248-2249; MacKenzie *et al.* 2003, pp. 2200-2201). These estimates are statistically based and, therefore, are considered more objective (Andelt *et al.* 2006, pp. 1-2; Colorado Division of Wildlife

(CDOW)2007, p. 19; WAFWA 2007, p. 4). A drawback is that estimates of percent occupancy by Gunnison's prairie dogs are not directly comparable to estimates of occupied acres (including most historic estimates), because when a random plot is visited, only detection or non-detection (not acres occupied) is recorded by the observers. If mapping is not performed during a site visit, no information about colony or complex size or location is obtained. The positive aspects of this method are statistical rigor, precision estimates, large-scale application in a single season, and trend analysis if performed over subsequent years. In addition, the results of individual surveys can be interpreted separately to assess prairie dog occupancy and document trends within in specific areas of concern. Although only a single year

(2007)of occupancy modeling results are available (with the exception of Colorado data from 2005 and 2007), we used these estimates, along with estimates of occupied areas, to assess the status and trends of the Gunnison's prairie dog in each of the four States. Historical Estimates of Abundance Historical estimates of Gunnison's prairie dog occupied habitat in Arizona and New Mexico are available from Federal records of early poisoning efforts, such as by the Bureau of Land Management

(BLM)and the U.S. Forest Service (USFS). In 1916, approximately 6.6 million ac (2.7 million ha) of Gunnison's prairie dog occupied habitat occurred in Arizona, and 11 million ac (4.4 million ha) occurred in New Mexico (Oakes 2000, pp. 169-171). In our 90-day finding in 2006 (71 FR 6241, February 7, 2006), we calculated historical estimates (circa 1916) for Colorado (6 million ac (2.4 million ha)) and Utah (700,000 ac (284,000 ha)) from prairie dog information in various publications and reports, because data were not available for these States. By summation, based on the best available information, our rangewide estimate for historic (circa 1916) Gunnison's prairie dog occupied habitat was approximately 24 million ac (9.7 million ha). In 1961, an estimated 445,000 ac (180,000 ha) of habitat was occupied by Gunnison's prairie dog in Arizona; 116,000 ac (47,000 ha) in Colorado; 355,000 ac (144,000 ha) in New Mexico; and 100,000 ac (41,000 ha) in Utah (Bureau of Sport Fisheries and Wildlife 1961, pp. 1, 5). By summation, the rangewide estimate for Gunnison's prairie dog occupied habitat in 1961 was approximately 1 million ac (405,000 ha). These data suggest that, from 1916 to 1961, Gunnison's prairie dog populations decreased by approximately 93 percent in Arizona, 98 percent in Colorado, 97 percent in New Mexico, and 86 percent in Utah, or by approximately 95 percent rangewide. However, historic declines may not support a conclusive inference that current populations continue to decline. In summary, empirical data on acres occupied indicate that, between 1916 and 1961, habitat occupied by the Gunnison's prairie dog throughout its range declined from approximately 24,000,000 ac (9,700,000 ha) to approximately 1,016,000 ac (406,400 ha). Statewide Estimates of Abundance As indicated above, estimates of percent occupancy arrived at through recent occupancy modeling (presence or absence at a random plot) do not equate to acres occupied. The method currently used by States to assess the Gunnison's prairie dog's status, in conjunction with both historic and recent mapping efforts, provides empirical data on percent occupancy of potential habitat. This data is useful as a gross-scale comparison to historical estimates of acres occupied. Both types of data are valid and represent the best available science. Full occupancy of surveyed habitat would not directly equate to 100 percent of available habitat, but it would provide a gross approximation of occupancy at a larger geographic scale. For the purposes of interpreting the percent occupancy numbers in this document, current State survey efforts utilize a scale from 1 to 100, indicating the percentage of occupied cells surveyed. Because we do not have historical data on percent of habitat occupied or on occupancy rates, we use the current percentage of occupied habitat to compare between habitats that currently appear to have a functional metapopulation structure (prairie) and that do not (montane). For example, the following paragraphs illustrate that Gunnison's prairie dog occupancy in plots sampled in montane habitat is estimated to be approximately 3.6 percent as compared to approximately 18.3 percent in plots sampled in prairie habitat in Colorado. Of the total montane habitat, approximately 85 percent occurs in Colorado. Arizona In 2007, occupied habitat on non-Tribal lands in Arizona comprised approximately 108,570 ac (40,500 ha) (Underwood 2007, p. 30). No comprehensive data are available from Tribal lands in Arizona, which include 50 percent of the Statewide potential habitat. Therefore, the 2007 estimate for Arizona (Underwood 2007, p. 30) is likely substantially less than what actually exists. Due to a lack of any Tribal estimates since 1961, recent population trends on Tribal lands statewide are unknown, but may have increased over the 1961 estimate of 435,419 ac (176,207 ha). We are unaware of any disproportionate adverse effects to the species on Tribal lands during this interval, and we assume that habitat trends may have followed a similar pattern as on non-Tribal lands. All habitat within Arizona is considered prairie. Colorado The Colorado Department of Agriculture (CDA 1990, p. A-3) solicited questionnaire responses from farmers and ranchers from which they extrapolated a 1990 estimate of 1,553,000 ac (621,200 ha) of occupied habitat for all 3 species of prairie dogs found in Colorado (Gunnison's, white-tailed, and black-tailed). Based on species occurrence by county, Seglund et al. (2005, p. 26) estimated that 438,876 ac (177,607 ha) were occupied by Gunnison's prairie dogs. From 2002 to 2005, the Colorado Division of Wildlife

(CDOW)interviewed field personnel from CDOW, the Service, the USFS, and the BLM regarding the habitat occupied by Gunnison's prairie dogs in the State. Colonies were mapped on 1:50,000 scale U.S. Geological Survey county sheets and were designated as “active” (known to have prairie dogs inhabiting the colony within the last 3 years); “inactive” (prairie dogs occurred in the area but have not been present in more than 3 years); or “unknown” (prairie dogs were known to occur historically, but current status was unknown). From this effort, CDOW estimated 182,237 ac (72,895 ha) of active colonies; 9,042 ac (3,617 ha) of inactive colonies; and 171,970 ac (68,788 ha) of colonies in unknown status within Colorado (CDOW 2007, p. 3). These data suggest an increase over the historical 1961 estimate of 115,650 ac (46,802 ha) of occupied habitat in Colorado. We have no way of estimating what percent of this difference may be due to different mapping techniques. We believe that the difference is mostly due to an actual increase in prairie dogs, likely within the prairie portion of the range, because data from the montane portion of the range indicate significantly reduced occupancy rates (see additional analysis below). We used area estimates from 2002 to 2005 to compute a Statewide occupancy estimate of 2.1 percent (known active colony area divided by area of potential habitat) (CDOW 2007). However, the occupancy modeling studies performed in 2005 and 2007 in Colorado, including both prairie and montane portions of the range, yielded Statewide occupancy estimates of 7.5 and 8.6 percent, respectively (Andelt *et al.* 2006, p. 15; CDOW 2007, p. 19), and these estimates are considered more reliable. Montane and Prairie Habitat in Colorado Within Colorado, CDOW has designated individual population areas to identify where Gunnison's prairie dogs exist and where management activities should be focused. The montane portion of the species' range in Colorado is composed of the Gunnison, San Luis Valley, South Park, and Southeast population areas. By using CDOW (2007, p. 28) estimates of potential habitat, we determined that the montane range portion in Colorado comprises about 80 percent (6.9 million of 8.5 million ac (2.8 million of 3.4 million ha)) of the available Gunnison's prairie dog habitat in the State. However, the montane range portion only contains about 40 percent (73,861 of 182,237 ac (29,544 of 72,894 ha)) of the available Gunnison's prairie dog habitat occupied in the State, based on our calculations using CDOW mapped area data (CDOW 2007, p. 3). The La Plata—Archuleta and Southwest population areas, in the prairie portion of Colorado's Gunnison's prairie dog habitat, comprise about 20 percent of the Gunnison's prairie dog habitat and contain about 60 percent of habitat occupied in the State (CDOW 2007, pp. 3, 19). The higher proportion of occupied habitat in the smaller prairie portion of the State indicates that Gunnison's prairie dogs are more abundant in the prairie habitat area. The 2005 occupancy modeling studies also indicate a higher proportion of occupancy (16 percent) in the prairie portion of the range in Colorado, and a lower proportion of occupancy (3.2 percent) in the montane portion of the species' range in Colorado (Andelt *et al.* 2006, p. 17; CDOW 2007, p. 19). When the study was repeated over the same plots in 2007, occupancy was again found to be higher (18.3 percent) in the prairie portion and lower (3.6 percent) in the montane range portion in Colorado (CDOW 2007, p. 19). New Mexico We have no current information on occupied habitat in New Mexico. The best available science is from Bodenchuck (1981 p. 1), who solicited questionnaire responses from agricultural producers in 1981. Respondents reported 107,574 ac (43,567 ha) of Gunnison's prairie dog occupied habitat. Bodenchuck (1981, p. 8) extrapolated a Statewide total of 348,000 ac (141,000 ha) of occupied habitat for the species. Oakes (2000, p. 216) questioned this extrapolation because of possibly faulty assumptions used to derive it. Knowles (2002, p. 22) estimated that 75,000 ac (30,000 ha) of occupied habitat existed in 1982. New Mexico Department of Game and Fish used Digital Orthophoto Quarter Quadrangles to estimate a minimum of 9,108 ac (3,689 ha) of occupied habitat Statewide in 2004 (Seglund *et al.* 2005, p. 23). However, this method appears to be hampered by inaccurate detection of disturbances, time elapsed since photography, time elapsed since ground mapping, temporal changes in prairie dog towns, and other factors (Seglund *et al.* 2005, p. 33). While these estimates have limited accuracy, general use in assessing Statewide occupied habitat indicates that Gunnison's prairie dogs appeared to be decreasing between 1961 and 2004. Montane and Prairie Habitat in New Mexico New Mexico also includes both montane and prairie habitat. The montane habitat is geographically connected to the montane portion of the Gunnison's prairie dog habitat in Colorado. It comprises about 17 percent of the Gunnison's prairie dog habitat in New Mexico; we do not have accurate data on total acres in New Mexico, and therefore do not provide an acre estimate for the montane portion. We have no data on the percent occupancy in this habitat. The prairie habitat in New Mexico comprises about 83 percent of the habitat; we do not have accurate data on total acres in New Mexico, and therefore do not provide an acre estimate for the prairie portion. We have no data on the percent occupancy in this habitat. Utah The Utah Division of Wildlife Resources estimated that 22,000 ac (8,906 ha) of occupied Gunnison's prairie dog habitat existed in Utah in 1968 (Seglund *et al.* 2005, p. 35). Knowles (2002, p. 21) estimated a minimum of 3,678 ac (1,490 ha) of occupied habitat Statewide. The Statewide trend in occupied habitat appears to have decreased from 100,000 ac (40,500 ha) in 1961 (Bureau of Sport Fisheries and Wildlife 1961, p. 5), to 40,000 ac (16,000 ha) in 2007 (Lupis *et al.* 2007, p. 3). The Gunnison's prairie dog occupancy in Utah was estimated to be 15.7 percent in 2007 (Lupis *et al.* 2007, p. 3). We consider all Gunnison's prairie dog habitat in Utah as prairie. Summary of Statewide Estimates of Abundance We have empirical data on Gunnison's prairie dog occupancy that indicate a large decline in rangewide occupied acres. We also have recent empirical data that indicates percent occupancy within two separate portions of the range is significantly different. Data on acres occupied indicate that between 1916 and the present, habitat occupied by Gunnison's prairie dogs throughout its range declined from approximately 24,000,000 ac (9,700,000 ha) to between 340,000 and 500,000 ac (136,000—200,000 ha). This represents a rangewide decline of greater than 95 percent. Summary of Factors Affecting the Species Rangewide Section 4 of the Act (16 U.S.C. 1533) and implementing regulations at 50 CFR 424, set forth procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. In making this finding, we summarize below information regarding the status and threats to the Gunnison's prairie dog in relation to the five factors provided in section 4(a)(1) of the Act. In making this 12-month finding, we have considered all scientific and commercial information received or acquired between the time of the initial petition (February 23, 2004) and the end of the most recent public comment period (October 29, 2007), and additional scientific information from ongoing species surveys and studies as they became available. Under section

(4)of the Act, we may determine a species to be endangered or threatened on the basis of any of the following five factors:

(A)Present or threatened destruction, modification, or curtailment of habitat or range;

(B)overutilization for commercial, recreational, scientific, or educational purposes;

(C)disease or predation;

(D)inadequacy of existing regulatory mechanisms; or

(E)other natural or manmade factors affecting its continued existence. We evaluated whether threats to the Gunnison's prairie dog may affect its survival. Our evaluation of threats, based on information provided in the petition, available in our files, and available in published and unpublished studies and reports, is presented below. A. The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range Agricultural land conversions historically had a significant impact on Gunnison's prairie dog habitat (Knowles 2002, p. 12). Gunnison's prairie dogs have been displaced from some of the more productive valley bottomlands in Colorado and New Mexico (Longhurst 1944, p. 36). Agriculture currently impacts 2,063,930 ac (834,243 ha), or less than three percent, of the Gunnison's prairie dog range (Seglund *et al.* 2005, p. 43). Seglund *et al.* (2005, p. 41) indicate agriculture is not a major rangewide threat because of the small percentage of the range affected, but also because agriculture provides highly productive forage in place of the native arid landscape. Current adverse impacts relate to secondary actions at a local scale, such as prairie dog control (for example, poisoning, shooting) in areas where prairie dogs occupy lands used for agriculture, particularly private lands. We assess shooting under Factor C, poisoning under Factor E, and both in Factor D. Urbanization also has caused habitat loss for Gunnison's prairie dog. Seglund *et al.* (2005, p. 41) determined that urbanization affects 577,438 ac (233,681 ha) within the range of the species (less than two percent of the range). However, it appears this analysis considered only the direct effects of habitat loss. Urbanization also exerts indirect effects (for example, poisoning and shooting of prairie dogs), extending a human “disturbance zone” outward from the actual development footprint. Lower-density suburban development occurring in the southern Rocky Mountains is scattered and results in a fragmenting of habitats. In Colorado, urban development on the west slope of the Rocky Mountains (montane habitat) is occurring rapidly; 38 percent of Gunnison's prairie dog range is predicted to be impacted by low urban development (less than 40 units per ac; 99 per ha), 6 percent by moderate development (40 to 80 units per ac; 99 to 198 per ha), and 5 percent by high development (fewer than 80 units per ac) between 2000 and 2020 (CDOW 2007, p. 28). We do not have information on the extent of development projected to occur in the other States within the species' range (Utah, Arizona, and New Mexico). Potential threats to Gunnison's prairie dog populations due to urban and suburban development exist, but have not been quantified, in the four cities of Santa Fe and Albuquerque, New Mexico; Flagstaff, Arizona; and Gunnison, Colorado (CDOW 2007, p. 4). In some areas, Gunnison's prairie dogs threatened by urban development have been captured and relocated to preserves or other nearby habitats, mitigating effects to overall population numbers, but not to area of habitat. Although urban and suburban development exert adverse impacts on Gunnison's prairie dog populations at a local scale, they likely affect less than three percent of the species' range; low density development appears to be compatible with continued use by prairie dogs, due to the offsets provided by lawns and pastures that provide high quality forage (Seglund *et al.* 2005, p. 41). Noxious weeds can increase in the presence of livestock overgrazing, and a relationship likely exists between overgrazing, *Bromus tectorum* (cheat grass) proliferation, and increased fire frequency and intensity (Seglund *et al.* 2005, p. 43). However, we have no data that quantifies these factors or their correlation with effects to Gunnison's prairie dog populations. The impact of overgrazing on prairie dog populations is contradictory. Some reports have noted that species density is positively correlated with the number of native plants (Slobodichikoff *et al.* 1988, p. 406), and that grazing has decreased forage availability (Seglund *et al.* 2005, p. 42). Other reports have concluded that prairie dog density is positively correlated with an increase in grazing, which simulates the shortgrass-type of prairie environment preferred by prairie dogs (Fagerstone and Ramey 1996, p. 88; Marsh 1984, p. 203, Slobodchikoff *et al.* 1988, p. 406). Considering the conflicting conclusions of published literature, and the lack of large-scale population decreases due to habitat alterations from livestock grazing, we find this is not a significant threat to the Gunnison's prairie dog. Numerous land parcels within the Gunnison's prairie dog range are leased for oil and gas development (Seglund *et al.* 2005, pp. 36, 42). However, no information is available that quantifies the amount of occupied habitat affected. In a study of white-tailed prairie dogs, Menkens and Anderson (1985, p. 13) concluded that any impact from seismic testing is negligible. However, we acknowledge that oil and gas development is rapidly occurring (Seglund *et al.* 2005, p. 44), and that this potential threat should be considered more closely when more accurate data are available. Road-related Gunnison's prairie dog mortality exists in proximity to specific population areas. Roads may be increasing due to oil and gas development. However, no studies quantify road mortality of Gunnison's prairie dogs. We have no data indicating that roads are currently threatening the species rangewide, and we conclude that prairie dog populations are able to recover from individual losses due to road mortality. Conservation principles indicate that smaller, more isolated populations are more vulnerable to extirpation (Barnes 1993, p. 34; Cully 1993, p. 43; Fitzgerald 1970, p. 78; Gilpin and Soule 1986, pp. 30-31; Miller *et al.* 1994, p. 151; Mulhern and Knowles 1995, p. 21; Wilcox and Murphy 1985, p. 883; Wuerthner 1997, p. 464). Lomolino *et al.* (2003, p. 116) found that persistence of Gunnison's prairie dog colonies increased significantly with larger colony size and decreased isolation. However, we found no studies or data that specifically assess the magnitude of the threats discussed under Factor A (agriculture land conversions, urbanization, grazing, roads, and oil and gas leasing) and resulting fragmentation throughout the range of Gunnison's prairie dog habitat. Summary of Factor A After assessing the best available science on the magnitude and extent of the effects of agricultural land conversion, urbanization, grazing, roads, oil and gas development, and fragmentation of habitat, we find that the destruction, modification, and curtailment of Gunnison's prairie dog's habitat or range are not significant threats. Agriculture, urbanization, roads, and oil and gas development each currently affect a small percentage of Gunnison's prairie dog habitat. Effects of livestock grazing, while widespread, have not resulted in measurable population declines. However, we need more information on the impacts of fragmentation and isolation with regard to persistence of prairie dog populations and on the magnitude of the potential threat posed by increasing oil and gas development. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Gunnison's prairie dogs have been historically subjected to recreational shooting and shooting as a form of pest management on ranch and agricultural land; these practices continue under current State regulations (see Factor D. Inadequacy of Existing Regulatory Mechanisms). Prairie dogs are especially vulnerable to shooting due to their colonial behavior, which facilitates easy access to many individuals at once (Seglund *et al.* 2005, p. 48). Most field studies on the effects of shooting prairie dogs have been carried out on black-tailed prairie dogs, but we consider the results relevant to Gunnison's prairie dogs (CDOW 2007, p. 41). Shooting effects include population reduction and alteration of behavior, such as decreased foraging rates and increased vigilance, which reduce individual prairie dog vigor and result in lower reproductive output (Knowles 1988, p. 54; Reeve and Vosburgh in press, p. 5; Vosburgh 1996, pp. 32-33; Vosburgh and Irby 1998, p. 368; Pauli and Buskirk 2007, pp. 1223-1224). Recreational shooting can reduce prairie dog population density at specific sites (Knowles 2002, p. 14; Miller *et al.* 1993, p. 91; Vosburgh 1996, pp. 13-14; Vosburgh and Irby 1998, pp. 366-367). Local extirpation of colonies may have occurred in isolated circumstances in the past (Knowles 1988, p. 54). However, increased population growth rates or recovery from very low numbers following shooting also have been reported (Knowles 1988, p. 54; Reeve and Vosburgh in press, p. 7). Recent studies of the effects of shooting on black-tailed prairie dogs appear to contradict the idea that populations quickly rebound from shooting. Reproductive output on colonies subjected to shooting decreased by 82 percent, while control colonies maintained a stable reproductive rate over the same period (Pauli and Buskirk 2007, p. 1228). Therefore, black-tailed prairie dogs do not appear to rebound quickly from shooting. The International Union for the Conservation of Nature/Species Survival Commission (IUCN/SSC) Conservation Breeding Specialist Group evaluated the effects of shooting mortality on population viability of Gunnison's prairie dogs (CDOW 2007, p. 124). Simulations were run with a shooting closure in place from March 1 through June 14 each year (approximating State closures) and without any closures. Having the closure in place resulted in positive population growth and negligible risk of extinction, except in scenarios with the highest levels (20 percent) of shooting-based mortality. Simulations run without the seasonal shooting closure in place suggest that when initial population sizes are smaller (less than 250 individuals) and shooting mortality is high (20 percent), a decrease in growth rate and an increase in population extinction risk exist (CDOW 2007, pp. 135-137). Colorado, Utah, and Arizona (outside Tribal lands) have implemented seasonal closures on prairie dog shooting. In Arizona and New Mexico, the Navajo Nation monitors this threat but currently implements no closures on shooting because it finds the level of shooting to be low on its lands (Cole 2007, p. 4). Summary of Factor B We have determined that shooting continues to be a threat to the Gunnison's prairie dog throughout all of its range and contributes to the decline of the species when combined with the effects of disease (see Factor C below). However, this threat is being monitored and managed in all States and the Navajo Nation, and modeling results suggest seasonal shooting closures implemented in Colorado and Arizona will likely reduce population-level losses. Therefore, we have determined that overutilization for commercial, recreational, scientific, or educational purposes is not a significant threat to the Gunnison's prairie dog. C. Disease or Predation While prairie dogs are prey to numerous species, including coyotes, badgers, black-footed ferrets, and various raptor species, there is no information available to indicate that predation has an overall adverse effect on the species. Black-footed ferrets have been reintroduced into two locations in Arizona, including the Aubrey Valley, where Gunnison's prairie dog populations appear to be stable. The Gunnison's prairie dog is, however, affected by sylvatic plague, which occurs in regular outbreaks and causes population declines and extirpations. Plague is an exotic disease foreign to the evolutionary history of North American species (Barnes 1982, p. 238; Barnes 1993, p. 29; Biggins and Kosoy 2001, p. 907). This flea-borne disease, caused by infection with the bacterium *Yersinia pestis,* is shared by humans and other vertebrate animals. Rodents are the primary vertebrate hosts of *Y. pestis,* but other mammals can be infected. *Y. pestis* is transmitted to mammals by bites of infected fleas, direct contact with infected animals, and rarely by inhalation of infectious respiratory droplets from another animal (Gage *et al.* 1995, pp. 695-696). Plague was first observed in wild rodents (termed sylvatic plague) in North America near San Francisco, California, in 1908 and was detected in Gunnison's prairie dogs in the 1930s (Eskey and Hass 1940, p. 6). Plague has subsequently spread so that it now encompasses the entire range of the species (Centers for Disease Control 1998, p. 1; Cully 1989, p. 49; Girard *et al.* 2004, p. 8408). Therefore, it has only been present within the species' range for approximately 70 years, allowing very little time for any resistance to evolve (Biggins and Kosoy 2001, p. 913). Once established in an area, plague becomes persistent and periodically erupts, with the potential to eventually extirpate or nearly extirpate entire colonies (Barnes 1982, p. 255; Barnes 1993, p. 28; Cully 1989, p. 51; Cully *et al.* 1997, p. 711; Fitzgerald 1993, pp. 52-53). The term “enzootic” describes plague existing at a less severe level, sometimes referred to as a “maintenance” condition, that is present continuously throughout a species' habitat; the term “epizootic” describes a severe plague outbreak or amplification transmission cycle (Gage *et al.* 1995, p. 696). Prairie dogs are highly susceptible to plague, and this susceptibility is thought to be a function of high population densities, abundant flea vectors, and uniformly low resistance (Biggins and Kosoy 2001, p. 913). Gunnison's prairie dogs can experience mortality rates of greater than 99 percent during epizootics, and eradication of populations can occur within one active season (Lechleitner *et al.* 1962, pp. 190-192; Lechleitner *et al.* 1968, p. 736; Rayor 1985, p. 194; Cully 1989, p. 49). Oral vaccination through consumption of vaccine-laden baits could reduce mortality from plague. Mencher *et al.* (2004, pp. 5504-5505) report protection against plague in black-tailed prairie dogs, elicited through voluntary consumption of a vaccine-laden bait in the laboratory. The vaccine has been shown to be safe in numerous animals including black-footed ferrets, raccoons, skunks, bobcats, cats, dogs, and sheep. However, future field trials are required to test the efficacy on the Gunnison's prairie dog. Recovery rates of Gunnison's and Utah prairie dog colonies studied 2 years post-epizootic found that Gunnison's prairie dog colonies experienced 100 percent mortality and remained depopulated throughout the study due to the lack of available immigrants (Turner 2001, p. 14). Partial or complete recovery following population reductions due to plague have been reported for both white-tailed and black-tailed prairie dogs (Cully 1993, pp. 40-41), but little to no recovery has been noted in montane Gunnison's prairie dog colony die-offs, even after long periods of time (Capodice and Harrell 2003, pp. 5-7; Cully *et al.* 1997, p. 717; Lechleitner *et al.* 1968, p. 734). Possible long-term consequences of continued plague infection in Gunnison's prairie dog populations may be:

(1)local extirpation of colonies;

(2)reduced colony size;

(3)increased variance in local population sizes, and

(4)increased inter-colony distances (CDOW 2007, p. 43). The factors that influence interspecific (between species) transmission of plague from mammalian or avian reservoirs (for example, coyotes, raptors, corvids) into prairie dog populations are unclear, but seem to be primarily through fleas that could increase in moister climates (Parmenter *et al.* 1999, p. 818; Rayor 1985, p. 195). However, interspecific transmission does not seem to be a significant factor creating plague epizootics. Plague is now considered enzootic throughout the range of the Gunnison's prairie dog. The primary factor influencing plague enzootics in Gunnison's prairie dogs is thought to be abundance of fleas within their own colonies. This appears to be correlated with seasonal moisture in specific habitat areas. Plague outbreaks may be triggered by climatic conditions, such as mild winters and moist springs (Parmenter *et al.* 1999, p. 818; Rayor 1985, p. 195). Enscore *et al.* (2002, p. 191) found a close relationship between human plague cases in the southwestern United States and high amounts of late spring (February to March) precipitation (time-lagged 1 and 2 years) and maximum daily summer temperature values in the moderately high range (85 to 90 °F; 29 to 32 °C). Girard *et al.* (2004, p. 8408) postulated that when resistant hosts of plague encounter a susceptible species that is plague naïve and has a high population density, an epizootic occurs. During epizootic phases, declines in abundance of susceptible species like prairie dogs are observed (Hanson *et al.* 2007, p. 790). The rapid dispersal of the pathogen through an area can be followed by an enzootic phase, a slower transmission cycle that disperses through the lower-density, more resistant hosts remaining from the first cycle. This establishes the disease in stable reservoirs for future emergence (Girard *et al.* 2004, p. 8413; Gage and Kosoy 2005, pp. 506-509). Enzootic infection is generally considered characteristic of a stable rodent-flea infectious cycle where host rodents are relatively resistant to the disease. However, Hanson *et al.* (2007, p. 792) found that an unexpectedly high percentage of black-tailed prairie dog colonies in Montana tested positive for plague. They speculate that, under some conditions, black-tailed prairie dogs, rather than acting as resistant hosts, may serve as enzootic hosts or carriers of the pathogen. Plague antibody titers (concentrations in blood) have been found in small numbers of Gunnison's prairie dogs in New Mexico, indicating individual exposure to plague and subsequent recovery (Cully *et al.* 1997, p. 717; Cully and Williams 2001, p. 898). Plague appears to have had little effect on a Gunnison's prairie dog population in Aubrey Valley, Arizona (Wagner and Van Andelt 2007, p. 2). However, little evidence of resistance to plague has been found in any species of prairie dog at this time. In conducting a Population Viability Analysis on Gunnison's prairie dogs, the IUCN/SSC Conservation Breeding Specialist Group (CDOW 2007, p. 123) hypothesized that in an enzootic scenario, plague operates at a relatively low level each year, thereby increasing average annual rates of mortality above what would occur in a more benign non-enzootic scenario. Gunnison's prairie dog populations are more susceptible to decline from plague than white-tailed prairie dog populations and are at least as, if not more, susceptible than black-tailed prairie dog populations (Antolin *et al.* 2002, p. 14; Cully 1989, p. 51; Cully and Williams 2001, p. 899; Hubbard and Schmitt 1983, p. 51; Knowles 2002, p. 13; Ruffner 1980, p. 20; Torres 1973, p. 31; Turner 2001, p. iii). Gunnison's prairie dogs commonly forage outside of their home territory, a characteristic that may play a significant role in the susceptibility of the species to plague. The Gunnison's prairie dog may be more susceptible to plague than the black-tailed prairie dog because of the Gunnison's less exclusive territorial behavior (many mix relatively freely throughout adjacent territories) and thereby contribute to the communicability of plague (Hoogland 1999, p. 8). The Gunnison's prairie dog is also likely more susceptible to plague than the white-tailed prairie dog because the Gunnison's typically occurs at higher densities and is less widely dispersed on the landscape, allowing for more frequent transmission of the disease from one individual to another (Antolin *et al.* 2002, p. 19; Cully 1989, p. 49; Cully and Williams 2001, p. 901; Turner 2001, p. 31). Biggins (2003, p. 6) speculated that if transmission rates for plague are at least partly dependent on host density, prairie dog populations on good quality sites may undergo both larger declines and more rapid recoveries than those on poor sites. Available literature is inconclusive regarding whether isolation or density of a colony affects the number and frequency of plague outbreaks. Lomolino *et al.* (2003, p. 118) and others (Cully and Williams 2001, p. 901; Miller *et al.* 1993, pp. 89-90) suggested that isolation and fragmentation may provide some protection to prairie dogs from plague by lessening the likelihood of disease transmission. However, this theory no longer applies when plague is enzootic throughout the range of Gunnison's prairie dog (as it appears to be), in which case isolation of colonies reduces the chance of recolonization after extirpation (Wagner and Drickamer 2002, p. 16; Lomolino and Smith 2001, pp. 942-943). In areas where Gunnison's prairie dog colonies are located close to each other (less than 6 miles

(mi)(10 kilometers

(km)apart), inter-colony dispersal of plague is likely through infected prairie dogs (Girard *et al.* 2004, p. 8412). For colonies separated by long distances or unsuitable habitats, infection may occur due to long-distance dispersal of plague-infected fleas by domestic dogs, coyotes, raptors, or other predators and scavengers (Barnes 1993, p. 34), or plague may already persist as enzootic throughout Gunnison's prairie dog range. The impacts of plague outbreaks, which lead to the loss of prairie dog colonies of all sizes (Roach *et al.* 2001, p. 956), are magnified by isolation of colonies. Colony growth after an epizootic is mainly the result of recolonization by inter-colony dispersers (Antolin *et al.* 2002, p. 17). Wagner *et al.* (2006, pp. 334-335) studied cycles of extirpation and recolonization in Gunnison's prairie dogs in Arizona, including a large number of colonies over a large geographic area, and found a significant relationship between the persistence of colonies and the persistence of their nearest neighboring colony. Increased isolation decreases the likelihood of recolonization following a plague outbreak if the distance between the infected colony and the next nearest colony is beyond the dispersal capabilities of the species. For example, Lechleitner *et al.* (1962, pp. 195, 197) documented a 1959 plague outbreak in a Gunnison's prairie dog colony in Colorado that killed all members of the colony. Prior to the outbreak, this colony had been continuously occupied for 20 years, despite several poisoning attempts. Two years after the plague outbreak, the colony still had not been recolonized, likely because it was isolated from other colonies by 8 mi (13 km) (Lechleitner *et al.* 1962, p. 187). Research is underway on the efficacy of insecticides in protecting various prairie dog species from plague. Biggins and Godby (2005, p. 2) hypothesized that if enzootic plague is affecting populations of prairie dogs, an ambitious effort to remove the disease should result in increased survival rates of prairie dogs. Fleas in Utah prairie dog burrows were effectively controlled by annual treatments of the insecticide deltamethrin; fleas were reduced 96 to 98 percent within one month of treatment (Biggins and Godby 2005, p. 5). Studies of the effects of flea control on black-tailed and white-tailed prairie dogs have shown similar results (Biggins 2007). At this time, chemical dusting of individual prairie dog burrows is labor intensive and expensive. All recent, major Gunnison's prairie dog colony declines documented in published literature have been attributed to plague epizootics. However, the magnitude of the plague threat appears to be different in the montane and prairie portions of the Gunnison's prairie dog range. Population declines in prairie habitat are less dramatic than those in montane habitat; partial recovery or establishment of new colonies have been documented following plague in the prairie range portion, but are rare or absent following plague outbreaks in the montane range. We reviewed literature on the status of Gunnison's prairie dog populations within the two portions of the range and, specifically, all published and unpublished literature on the effects of plague on prairie dogs. While some studies were not recent, summarizing them below provides background on the responses of Gunnison's prairie dog populations to plague in each portion of the range. Effects of Plague in Montane Habitat Several well-studied colonies within the montane portion of the Gunnison's prairie dog range have been documented as being extirpated, or nearly so, due to plague. The South Park, Colorado, population area included estimated occupied habitat of 915,000 ac (371,000 ha) in 1945; 74,000 ac (30,000 ha) in 1948; and 42 ac (17 ha) in 2002 (CDOW 2007). This decline was largely due to plague and affected a substantial portion of the species' extant occupied habitat in Colorado (at least 15 percent). A plague event in Saguache County, Colorado, that progressed across seven colonies in 2 years left only scattered individuals surviving in two colonies (Lechleitner *et al.* 1968, p. 734). In Gunnison, Saguache, and Montrose Counties, Colorado, plague also was responsible for a decline from 15,569 ac (6,228 ha) of occupied habitat in 1980, to 770 ac (308 ha) in 2002 (note that Montrose County is in the Southwest population area in prairie habitat) (Capodice and Harrell 2003, pp. 5-7). A complete die-off of a colony due to plague in Chubbs Park, Chaffee County, Colorado, occurred in 1959 (Lechleitner *et al.* 1962, p. 185). In August 1958, the population was stable and healthy, but in 1959 an epizootic spread 2 mi (3 km) within 3 months; prairie dogs continued to be absent from the area in 1960 and 1961, and we have no recent information on the existence of prairie dogs in that location. Plague resulted in the complete loss, over a 2-year period, of a colony in South Park, Colorado (Fitzgerald 1970, pp. 68-69). Approximately 1,000 to 1,500 Gunnison's prairie dogs were killed by an outbreak of plague in a 148-ac (60-ha) colony in Curecanti National Recreation Area near Gunnison, Colorado, in 1981 (Rayor 1985, p. 194). A few animals survived the disease and Gunnison's prairie dogs were again abundant in the area in 1986 (Cully 1989, p. 49). In 2002, 252 ac (102 ha) of habitat in the Recreation Area were occupied by Gunnison's prairie dog colonies (Capodice and Harrell 2003, p. 23), but the current estimate is 12 ac (4.8 ha) (Childers 2007, p. 2). Colonies within the Recreation Area experienced six plague epidemics between 1971 and 2007. Of the 9 historic Gunnison's prairie dog colonies, 3 are currently active, and 2 act as source populations for the main prairie dog concentration area (Childers 2007, p. 1). If the source colonies die off due to plague, repopulation may not be possible because any other Gunnison's prairie dog populations remaining will be separated by distance (more than 6 mi (10 km)) and impassable geographical features such as rivers and mountains (Lomolino *et al.* 2003, p. 116; Pizzimenti and Hoffman 1973, p. 1). Recently, plague has been implicated in the loss of several large colonies on BLM land within the Gunnison population area (CDOW 2007, p. 4). A large colony southeast of Gunnison, Colorado, that was very active in 2005, was totally devoid of prairie dogs in 2006 and 2007. Four other large colonies in the same vicinity were active in 2006, but by 2007, no prairie dog activity was observed. Plague is the suspected cause of these extirpations, because of the complete elimination of the prairie dogs with no sign of poisoning (CDOW 2007, p. 4). Fitzgerald (1993, p. 52) expressed concern about the status of the Gunnison's prairie dog in Colorado, indicating that plague had eliminated many populations, including almost all of the populations in South Park. He also suggested that populations appeared to be in poor condition in the San Luis Valley, and were extirpated from the extreme upper Arkansas River Valley, as well as Jefferson, Douglas, and Lake Counties. These areas comprise most of the Gunnison's prairie dog montane habitat in Colorado. During 1984 through 1987, a plague event reduced the population of Gunnison's prairie dogs in the Moreno Valley of New Mexico from more than 100,000 individuals to between 250 and 500, a decline of greater than 99 percent (Cully *et al.* 1997, pp. 708-711). Although the growth rate of the remaining population increased following the epizootic, another plague event swept through the area in 1988, and the population in July 1996 was still “a fraction” of what it had been in 1984 (Cully *et al.* 1997, p. 718). Occupancy modeling performed in Colorado in 2005 indicated a lower proportion of occupancy in the montane portion of the species' range within Colorado (3.2 percent) than in the prairie portion within Colorado (16.0 percent) (Andelt *et al.* 2006, p. 17; CDOW 2007, p. 19). When the study was repeated over the same plots in 2007, occupancy was again found to be lower (3.6 percent) in the montane range portion in Colorado than in the prairie portion (18.3 percent) (CDOW 2007, p. 19). The only recent threat responsible for whole population declines and extirpations, as documented in the studies cited in this section, is plague. The frequency of plague epizootics appears to be high in montane habitat due to moister environmental conditions that are conducive to greater flea densities. The impact of plague epizootics in montane habitat is great because the small, isolated populations cannot recolonize. Within the South Park, Gunnison, and Southeast montane population areas in Colorado, no prairie dog complexes that approach a size considered sustainable exist, and only a few small complexes exist within the San Luis Valley population area (CDOW 2007, pp. 1-17). Without a metapopulation structure, an overall decline in persistence takes place (Lomolino and Smith 2001, p. 942). The landscape status in the montane portion of Gunnison's prairie dog range is characterized by fewer, smaller colonies that are isolated, and few to no complexes or metapopulation structure. Isolation of populations is related to the montane geography in this portion of the range. Gunnison's prairie dogs occupy low valleys and mountain meadows within this habitat (Seglund *et al.* 2005, p. 12), likely because the short growing season at elevations higher than 10,000 ft (3,048 m) limits forage (Andelt *et al.* 2006, p. 17). In addition, mountain topography minimizes the zone of contact between populations (Knowles 2002, p. 3). At least four mountain ranges within the montane portion of the range act as barriers to Gunnison's prairie dog dispersal (Pizzimenti and Hoffman 1973, p. 1). These factors make the prairie dogs in this habitat highly susceptible to plague-related declines, and we have no evidence of long-term recovery from plague in the montane habitat area. Effects of Plague in Prairie Habitat The Southwest and the La Plata-Archuleta populations in Colorado are within the prairie portion of Gunnison prairie dog range. The Southwest population comprises the largest population of Gunnison's prairie dogs in Colorado, with an estimated 88,267 ac (35,307 ha) of active colonies. Currently, prairie dogs can be found in nearly any habitat suitable for occupation, although densities are low to very low in native rangeland areas. Plague may be a problem in this area, because periodic die-offs not associated with poisoning or other control measures have been noted by local farmers and ranchers in the past. However, unlike populations in montane habitat within Colorado, these populations appear to rebound from periodic epizootics (CDOW 2007, p. 16). Populations in the La Plata-Archuleta population area appear to undergo plague outbreaks every 4 to 7 years, which may be limiting some populations (CDOW 2007, p. 7). Occupancy modeling in 2005 and 2007 documented Gunnison's prairie dog occupancy of 17.6 percent and 27.0 percent, respectively, in the Southern Ute Reservation (part of the La Plata-Archuleta population area), and 15.6 percent and 16.3 percent in the Southwest area (CDOW 2007, p. 19). The persistence of these populations, while undergoing repeated plague outbreaks, is likely due to their proximity to other populations within the prairie portion of the species' range and immigration from those populations. In Arizona, from 1987 to 2001, an estimated 68 percent reduction in the number of active Gunnison's prairie dog colonies occurred, primarily due to outbreaks of plague (Underwood 2007, p. 18; Wagner and Drickamer 2002, p. 15). However, in the area known as the Coconino Plateau, the area occupied by Gunnison's prairie dogs increased from 2,126 ac (860 ha) in 1992 to 40,942 ac (16,569 ha) in 2007 (Van Pelt 2007, p. 3), suggesting the species can withstand large plague epizootics through colony expansion or recolonization from nearby colonies. In addition, the Aubrey Valley Complex (in northwestern Arizona, the westernmost part of the species' range) has remained stable since at least 1974, despite the presence of plague, and the size of this complex increased from approximately 30,000 ac (12,000 ha) in 1997 (Underwood 2007, p. 23), to 40,000 ac (16,800 ha) in 2005 (Van Pelt 2005, p. 2), to 47,785 ac (19,338 ha) in 2007 (Van Pelt 2007, p. 2). Gunnison's prairie dogs at this site had significantly higher levels of antigens associated with disease-causing pathogens such as plague, the same immune response expected if the prairie dogs had been vaccinated against plague (Wagner and Van Andel 2007, p. 2). Of 293 colonies surveyed within Gunnison's prairie dog range in Arizona outside of Tribal lands, 57 (19 percent) experienced die-offs during the summers of 2000 and 2001 (Wagner and Drickamer 2002, p. 13). Plague was confirmed as the causative agent for 15 of these 57 colonies but is thought to be the likely cause for them all, because it is the only disease that causes outbreaks with high mortality in prairie dogs (Barnes 1993, p. 34; Wagner and Drickamer 2002, p. 13). During surveys, they also identified the approximate boundaries of two previous plague outbreaks (Wagner and Drickamer 2002, p. 14). An outbreak occurred over approximately 1,120 square mi (2,900 square km) west of the town of Dilkon, Arizona, on the Navajo Indian Reservation. This outbreak probably occurred in 1995 or 1996 (Wagner and Drickamer 2004, p. 14). Previous surveys in the area documented 45 colonies on 8,649 ac (3,500 ha). Reexamination of these colonies in 2000 and 2001 showed that all but two colonies were inactive. At most of the inactive colonies, burrow entrances were completely closed, and only mounds indicated where they formerly occurred. An outbreak occurred east of the town of Seligman, Arizona, across approximately 425 square mi (1,100 square km) around 1996. The Arizona Game and Fish Department conducted surveys in this area between 1990 and 1994, and identified 47 active colonies that covered approximately 8,649 ac (3,500 ha). In 1996, die-offs were observed in this area, and the U.S. Centers for Disease Control and Prevention confirmed plague as the cause. Although prairie dog numbers were increasing again in 1998, surveys in 2001 indicated that only 11 of the 47 colonies were active. Possibly another, undocumented, plague outbreak occurred in 1999 or 2000, again reducing the number of individuals (Underwood 2007, p. 19). Despite this persistent plague activity, Gunnison's prairie dogs are becoming reestablished in some areas within the boundaries of the Seligman outbreak (Wagner and Drickamer 2002, pp. 14-15). This apparent resiliency is most likely due to immigration from other colonies in the prairie portion of the species' range. Plague cycles have been observed in Gunnison's prairie dogs in Utah, and populations have been known to die off and then recover (Lupis *et al.* 2007, p. 32). Because plague testing has not been conducted on Gunnison's prairie dogs in Utah, declines cannot definitively be attributed to the disease (Seglund *et al.* 2005, p. 52). Plague is anticipated to be an ongoing threat to Gunnison's prairie dog populations in Utah at both a localized, and a widespread, scale (Lupis *et al.* 2007, p. 32). The Utah Division of Wildlife Resources recently conducted point surveys and found that occupancy was 15.7 percent. Based on observed occupancy, they estimate that roughly 40,000 ac (16,000 ha) of southeastern Utah were inhabited by Gunnison's prairie dogs in 2007. Of 65 Gunnison's prairie dog colonies occupied prior to 1984 in west-central New Mexico, 32 (49 percent) were still occupied in 2005 (Luce 2005, p. 4). The active colonies were estimated to cover 5,997 ac (2,399 ha) (Luce 2005, p. 5). The New Mexico Department of Game and Fish recently initiated occupancy modeling surveys similar to those used by CDOW and the Utah Division of Wildlife Resources; however, we currently have no data from that effort. Summary of Factor C The studies cited above document the serious impact that plague has on Gunnison's prairie dogs. Although plague antibody titers have been found in a few individuals, periodic epizootic plague events generally kill more than 99 percent of an affected population. Whether individual populations recover from these epizootics depends on two main factors:

(1)The availability of other source populations to recolonize an area; and

(2)the frequency of epizootic outbreaks, which can reduce population numbers more quickly than individual prairie dogs from neighboring colonies can recolonize. Populations in the more mesic montane areas of Gunnison's prairie dog range appear to have been widely and severely affected by plague. This may be partly due to climatic conditions such as higher levels of spring moisture, which has been shown to increase flea numbers, and in turn, plague outbreaks. Isolation of prairie dog populations does not seem to protect them from the spread of plague, because it appears that plague exists with all parts of the range at some level, and can be spread by wider-ranging animals. The case studies cited in this section indicate that large populations have been repeatedly affected by plague and have shown no substantial recovery over long periods of time—decades in some cases. This has left smaller, more scattered populations throughout the montane range portion and a complete lack of metapopulation structure, with the result that areas affected by plague are less likely to be recolonized by nearby populations. While little information is currently available on prairie dog movement within this montane habitat, its geography (populations are located in valleys between mountainous areas) probably impedes the ability of prairie dogs to recolonize populations. Within this geographic area, CDOW found slightly more than 3 percent occupancy of surveyed plots. Although documented population declines due to plague outbreaks also occur in the more xeric prairie portions of Gunnison's prairie dog range, evidence shows that many of these populations recover more rapidly from plague epizootics, probably due to the availability of nearby colonizers. This portion of the range has maintained a metapopulation structure that provides source populations for plague-affected populations. The largest population in Arizona, Aubrey Valley in the driest portion of the range, has been increasing in recent years and shows indications of exposure to plague without the devastating effects observed elsewhere. The CDOW data documents approximately 18 percent occupancy within prairie habitat in Colorado. Studies in Utah and west-central New Mexico indicate a historic decline in habitat occupancy of approximately 50 percent (Wright 2007, p. 3; Luce 2005, p. 4), and a greater decline in Arizona (Wagner and Drickamer 2002, p. 11). While this is significant, it is far less than the declines seen in the montane habitat area; in addition, metapopulation structure continues to exist, and at least one Gunnison's prairie dog complex (Aubrey Valley, Arizona) is exhibiting some resistance to plague epizootics. The impacts of plague appear to be ongoing with moderate population-level effects when assessed across the entire range of the Gunnison's prairie dog. Within the prairie portion of the range, plague has reduced the number of populations, and is reducing the size of populations, but has not decimated the existing metapopulation structure. Gunnison's prairie dog colonies in prairie habitat exhibit rebound and recovery from plague epizootics in many population areas due to availability of animals from adjacent colonies. So far, plague has resulted in moderate effects to the species in the prairie portion of the range. Within the montane portion of the range, plague has significantly reduced the number and size of populations, resulting in high effects to the species. Populations within montane habitat have three distinct disadvantages in resisting the effects of plague:

(1)A higher frequency of epizootics due to the moister montane climate that is conducive to higher abundance of fleas that spread plague;

(2)smaller populations that cannot recover in numbers from plague epizootics; and

(3)isolated populations and no metapopulation structure, due to reduced population sizes from past plague epizootics and montane geography, and therefore a significantly limited ability to recolonize. After assessing the best available science on the magnitude and extent of the effects of plague, we find that the impact of plague in the montane portion of the Gunnison's prairie dog range is significant. However, plague does not rise to a level of being a significant threat to the Gunnison's prairie dog throughout its range. D. Inadequacy of Existing Regulatory Mechanisms Local Laws and Regulations Approximately 22 percent of potential Gunnison's prairie dog habitat occurs on private lands, and another 30 percent occurs on Tribal lands or lands managed by the Bureau of Indian Affairs (Seglund *et al.* 2005, p. 21). We are not aware of any city, or county ordinances that provide for protection or conservation of the Gunnison prairie dog or its habitat. We recognize that city, county, and Tribal ordinances that address issues such as agricultural lands, transportation, and zoning for various types of land use have the potential to influence the Gunnison's prairie dog or its habitat; for example, zoning that protects open space might retain suitable habitat, and zoning that allows a housing development might destroy or fragment habitat. Colorado State Statute C.R.S. 30-28-101 exempts parcels of land of 35 ac (14 ha) or more per home from regulation, so county zoning laws in Colorado only restrict developments with housing densities greater than one house per 35 ac (14 ha). This State statute allows some parcels to be exempt from county regulation and may negatively impact some prairie dogs. Tribal Laws and Regulations Approximately 49 percent of potential Gunnison's prairie dog habitat occurs on Tribal lands (Seglund *et al.* 2005, p. 21). On the Navajo Nation, Gunnison's prairie dog is classified as small game, and a hunting license is required to shoot them (Cole 2007, p. 4). In general, access and permission to hunt on Tribal lands are limited for non-Tribal members as a result of various trespass laws, but access by Tribal members is not limited. We are aware of no seasonal shooting closures in effect on Tribal land. Work on the Navajo Nation Gunnison's Prairie Dog Management Plan, which will incorporate elements of the Arizona, New Mexico, and Utah State plans, is expected to begin immediately after finalization of the Gunnison's prairie dog rangewide inventory (Cole 2007, p. 5). The Navajo Nation allows lethal and non-lethal removal of Gunnison's prairie dogs for agricultural, human health, and safety purposes (Cole 2007, pp. 4, 5) We are not aware of any other Tribal ordinances that provide for protection or conservation of the Gunnison prairie dog or its habitat. We recognize that Tribal ordinances that address issues such as agricultural lands, transportation, and zoning for various types of land uses have the potential to influence the Gunnison's prairie dog or its habitat; for example, zoning that protects open space might retain suitable habitat, and zoning that allows a housing development might destroy or fragment habitat. State Laws and Regulations Approximately 12 percent of Gunnison's prairie dog potential habitat occurs on State and Federal lands (Seglund *et al.* 2005, pp. 82). Gunnison's prairie dogs are considered a Species of Greatest Conservation Need in Arizona, a State Sensitive Species in Utah, and have no special conservation status in Colorado or New Mexico. All four States discuss the Gunnison's prairie dog in Comprehensive Wildlife Conservation Strategies (Seglund *et al.* 2005, p. 55) that confer no regulatory mechanisms, but assert that the species is at risk, declining, and deserving of special management consideration. In Arizona, all prairie dog species are classified as nongame mammals, and a hunting license is required to shoot them (Underwood 2007, p. 27). In 2001, the hunting season for Gunnison's prairie dogs was changed from year-round to an April 1 to June 15 closure that applies to Federal, State, and private lands (Underwood 2007, p. 28). In Colorado, the Gunnison's prairie dog is classified as a small game species, and take is allowed by rifle, handgun, shotgun, handheld bow, crossbow, pellet gun, slingshot, falconry, and toxicants (CDOW 2007, pp. 41-42). A small game license is required, with the exception of private landowners and their immediate family members or designees, who may take Gunnison's prairie dogs causing damage on their lands. Shooting on public lands is not allowed between March 1 and June 14 (no take is permitted in any season on national wildlife refuges) (CDOW 2007, pp. 41-42). During the open season, no bag or possession limits exist; however, contestants in shooting events may take no more than five prairie dogs per event (CDOW 2007, pp. 41-42). No seasonal shooting closures are in effect on private or Tribal lands. In New Mexico, Gunnison's prairie dogs may be taken year-round without a permit by residents; non-residents are required to obtain a New Mexico hunting license to shoot prairie dogs within the State (Seglund *et al.* 2005, pp. 31, 32). In Utah, shooting of Gunnison's prairie dogs is prohibited on public lands from April 1 to June 15, but they may be taken on private lands year-round; no license is required for shooting Gunnison's prairie dogs, and no bag limit exists (Lupis *et al.* 2007, pp. 18-19). Access and permission to hunt on private and Tribal lands are limited as a result of various trespass laws. All States that provide habitat for Gunnison's prairie dogs allow their removal for agricultural, human health, and safety purposes (Seglund *et al.* 2005, p. 46). The States within the range of the Gunnison's prairie dog developed a Rangewide Conservation Strategy that provides guidance regarding specific activities to include in individual State plans for prairie dog conservation and management (Seglund *et al.* 2005, p. 55). All of the States with Gunnison's prairie dog habitat are in the process of developing State Conservation Plans. The four plans are in different phases of development but are scheduled for completion by March 2008. The four States have agreed on a monitoring strategy to determine population trends of Gunnison's prairie dog across their range (Van Pelt 2007, p. 2). Within Colorado, in the montane portion of the species' range, CDOW has designated individual population areas to identify where Gunnison's prairie dogs exist and where management activities should be focused. This portion of the species' range is comprised of the Gunnison, San Luis Valley, South Park, and Southeast population areas. The Gunnison population area is approximately 68 percent Federal, and 2 percent State, 30 percent private ownership (CDOW 2007, p. 2). The San Luis Valley population area is approximately 40 percent Federal, 6 percent State, and 54 percent private ownership (CDOW 2007, p. 2). The South Park and Southeast population areas are 34 percent Federal, 7 percent State, and 59 percent private ownership. The large percentage of private lands, where minimal regulatory mechanisms exist, appears to compound the effects of shooting and poisoning in this montane portion of the species' range that is already at lower occupancy than the prairie portion of the species, especially in conjunction with plague for which there are no regulatory or protective mechanisms. United States Federal Laws and Regulations Federal agencies are responsible for managing approximately 17 percent of Gunnison's prairie dog habitat. The primary Federal agency managing Gunnison's prairie dog habitat is BLM (12 percent); the USFS (4.3 percent), National Park Service (0.5 percent), Department of Defense (0.4 percent), and the Service (0.1 percent) also contribute to management of the species. Bureau of Land Management The Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. 1701 *et seq.* ) is the primary Federal law governing most land uses on BLM lands. Section 102(a)(8) of FLPMA specifically recognizes wildlife and fish resources as being among the uses for which these lands are to be managed. BLM must consider the needs of wildlife, including general considerations of Gunnison's prairie dogs, when conducting activities in their habitat. The Gunnison's prairie dog is designated by BLM as a sensitive species in Utah only; therefore, they are not required to provide special protections and mitigation during project and activity planning in Arizona, Colorado, or New Mexico. BLM's Resource Management Plans

(RMPs)are the basis for all of its actions and authorizations involving BLM-administered lands and resources. They establish allowable resource uses; resource condition, goals and objectives to be attained; program constraints and general management practices needed to attain the goals and objectives; general implementation sequences; and intervals and standards for monitoring and evaluating the plan to determine its effectiveness and the need for amendment or revision (43 CFR 1601.0-5(k)). RMPs provide a framework and programmatic guidance for site-specific activity plans. Site-specific plans address livestock grazing, oil and gas field development, travel management, wildlife habitat management, and other activities. Activity plan decisions normally require National Environmental Policy Act

(NEPA)(42 U.S.C. 4321 *et seq.* ) analysis. The BLM has regulatory authority for oil and gas leasing and operating, as provided at 43 CFR 3100 *et seq.* BLM usually incorporates stipulations as a condition of issuing a lease. The BLM's planning handbook has program-specific guidance for fluid minerals (which include oil and gas) that specifies that RMP decision-makers will consider restrictions on areas subject to leasing, including closures, and lease stipulations (BLM 2000, Appendix C, p. 6). The handbook also specifies that all stipulations must have waiver, exception, or modification criteria documented in the plan, and indicates that the least restrictive constraint to meet the resource protection objective should be used (BLM 2000, Appendix C, p. 6). The BLM has regulatory authority to condition drilling permits to include prairie dog conservation stipulations (BLM 2004, pp. 3-60). Some oil and gas leases have a 0.12-mi (0.19-km) stipulation, which allows movement of the drilling area by that distance (BLM 2004). We do not have data to evaluate the effectiveness of BLM's program on prairie dog conservation. U.S. Forest Service The Gunnison prairie dog is a USFS Sensitive Species in New Mexico and Colorado, where it is considered to be imperiled (USFS 2007, line 135) based on NatureServe rankings (USFS 2004, pp. 60, 64). Management of Federal activities on National Forest System lands is guided principally by the National Forest Management Act

(NFMA)(16 U.S.C. 1600-1614, August 17, 1974, as amended). The NFMA specifies that all national forests and grasslands must have a Land and Resource Management Plan

(LRMP)(16 U.S.C. 1600) to guide and set standards for natural resource management activities. The NFMA requires the USFS to incorporate standards and guidelines into LRMPs (16 U.S.C. 1600). This has historically been done through a NEPA process. Provisions to manage plant and animal communities for diversity, based on the suitability and capability of a specific land area, are developed in order to meet overall multiple-use objectives. The 1982 NFMA implementing regulation for land and resource management planning (1982 rule, 36 CFR 219), under which all existing forest plans were prepared, requires the USFS to manage habitat to maintain viable populations of existing native vertebrate species on National Forest System lands (1982 rule, 36 CFR 219.19). A new USFS planning regulation was promulgated on January 5, 2005 (70 FR 1023), and supersedes the 1982 rule. Plans developed under the new regulation are to be more strategic and less prescriptive in nature than those developed under the 1982 planning rule. For example, previous plans might have included a buffer for activities near the nest sites of birds sensitive to disturbance. Under the new regulation, a desired condition description and guidelines will be provided, rather than a set of prescriptive standards that apply to projects. Planning, and decisions for projects and activities, will address site-specific conditions and identify appropriate conservation measures to take for each project or activity. However, this planning regulation was struck down by the U.S. District Court for the Northern District of California on March 30, 2007, and is not currently in use by the USFS. We are uncertain which direction the USFS is implementing for the Gunnison's prairie dog, or whether Gunnison's prairie dog habitat objectives and conservation measures have been incorporated into grazing allotment plans or LRMPs. Summary of Factor D On a basis on a review of the available existing information, it does not appear that the inadequacy of existing regulatory mechanisms is a significant threat to the Gunnison's prairie dog. However, the percentage of private lands within the montane portion of the species' range results in a paucity of regulatory mechanisms that potentially result in increased shooting and poisoning, which exacerbate the effects of plague in that portion of its range. At this time, no regulatory mechanisms exist to mitigate the effects of plague. E. Other Natural or Manmade Factors Poisoning of Gunnison's prairie dogs has historically been documented throughout the species' range, but no evidence indicates that poisoning currently occurs on a broad scale. The WAFWA Gunnison's Prairie Dog Conservation Assessment summarizes poisoning campaigns in the four States (Seglund *et al.* 2005, pp. 56-57). From 1914 to 1964, 2,310,203 ac (934,906 ha) of Gunnison's prairie dog habitat were poisoned in Arizona; 23,178,959 ac (9,380,192 ha) of habitat were poisoned in Colorado; 20,501,301 ac (8,296,582 ha) of habitat were poisoned in New Mexico; and 2,715,930 ac (1,099,098 ha) of habitat were poisoned in Utah. On public lands, poisoning efforts have led to a reduction in occupied habitat, extirpation from local areas, fragmentation, and isolation of colonies. Poisoning in all States became less common after Federal regulation of pesticides was enacted. State and Federal agencies are rarely involved in control efforts unless human health and safety are at risk (Seglund *et al.* 2005, p. 57). Individual landowners may still control prairie dogs on their private property. No studies indicate that drought has a negative rangewide effect on Gunnison's prairie dogs. Impacts to the Gunnison's prairie dog under predicted future climate change are unclear. A trend of warming in the mountains of western North America is expected to decrease snowpack, hasten spring runoff, and reduce summer flows (IPCC 2007, p. 10). Increased summer heat may increase the frequency and intensity of wildfires (IPCC 2007, p. 14). Given the different climate variables between the montane and prairie geographic areas, populations in prairie habitat may show evidence of effects from climate change earlier than those in montane habitat. While it appears reasonable to assume that Gunnison's prairie dogs may be affected, we lack sufficient certainty on knowing how climate change will affect the species, or the potential changes to the level of threat posed by plague. The most recent literature on climate change includes predictions of hydrologic changes, higher temperatures, and expansion of drought areas, resulting in an upward shift in range for many species (IPCC 2007, pp. 2-5); the higher elevation montane habitat could be essential to future conservation of the Gunnison's prairie dog. We have no knowledge of more detailed climate change information specifically for this montane portion of the Gunnison's prairie dog range. Summary of Factor E Although poisoning contributed historically to large declines in occupied area of Gunnison's prairie dogs, there is no information available to indicate that poisoning occurs at more than a localized scale today. Poisoning could have a negative effect on small, isolated populations, particularly in conjunction with disease and shooting; therefore, poisoning in the montane area may be more likely to contribute to the decline of the species by further fragmenting the small populations and curtailing recolonization. No information currently indicates that drought negatively affects or is likely to affect the Gunnison's prairie dog throughout its range, or that climate change will affect the species within the foreseeable future. While poisoning of Gunnison's prairie dogs and the effects of climate change in the montane portion of the range are issues important to monitor, we conclude that no other natural or manmade factors are a significant threat to this species, at this time, throughout all or a significant portion of its range. Foreseeable Future When determining whether a species is in danger of extinction throughout all or a significant portion of its range, or is likely to become in danger of extinction in the foreseeable future, we must define that foreseeable future for the species. We do this on a case-by-case basis, taking into account a variety of species-specific factors such as lifespan, genetics, breeding behavior, demography, threat-projection timeframes, and environmental variability. For the purposes of this finding, we define foreseeable future based on a threat-projection timeframe, because plague is likely to be the single greatest factor contributing to the species' future conservation status, as explained below. Life history characteristics are of secondary relevance to Gunnison's prairie dog foreseeable future. Gunnison's prairie dogs breed once per year and produce an average litter size of 3.77. They can become sexually mature at 1 year of age, but survivorship is less than 60 percent during their first year (Seglund *et al.* 2005, p. 15). These characteristics are relevant to the species' ability to sustain stable populations in the presence of ongoing, low intensity threats such as predation, poisoning, and shooting. However, we find that the ability of populations to recover from plague epizootics is more relevant to the foreseeable future of the species. As described under Factor C above, prairie dog populations can experience mortality rates of greater than 99 percent during plague epizootics and can be eradicated within one season due to plague. Recovery rates, which are key to population survival, depend on several factors, including susceptibility to plague, frequency of plague outbreaks, habitat quality, and distance to other colonies available for recolonization. Current data frame our analysis and help us understand what factors can reasonably be anticipated to meaningfully affect the species' future conservation status. We have documented that Gunnison's prairie dog occupancy varies significantly across its range, that susceptibility to extirpation by plague is greater in the montane portion of the species' range, and that metapopulation structure does not exist and recolonization is nearly nonexistent in the montane portion of the range. While we have data indicating that Gunnison's prairie dog numbers and populations have decreased, we currently have no data on which to base rates of decline in any portion of that range, which hinders our ability to determine the foreseeable future for the species. We must estimate the foreseeable future of the Gunnison's prairie dog based on current occupancy and our knowledge of the magnitude of the threat of plague. Plague has been shown to nearly extirpate entire population areas over a span of 3 to 10 years (such as South Park and San Luis Valley in Colorado and Moreno Valley in New Mexico) (Fitzgerald 1993; CDOW 2007; Cully *et al.* 1997) and can extirpate small populations in 1 to 2 years (Fitzgerald 1970; Lechleitner *et al.* 1962; Turner 2001). Plague has been present within the range of the Gunnison's prairie dog for 70 years (Eskey and Haas 1940, p. 6) and will likely continue to exist within the range in perpetuity, because it remains widespread and strongly entrenched among wild rodent populations in the western United States (Barnes 1993, p. 31). Current information suggests that Gunnison's prairie dog has not developed sufficient immunity to reduce the effects of plague; we anticipate it will not develop such immunity within the foreseeable future. Few records document Gunnison's prairie dog individuals with plague antibody titers (Cully *et al.* 1997, p. 717; Cully and Williams 2001, p. 898). Individual prairie dogs in the Aubrey Valley of Arizona had antigens that provided an immune response similar to that expected if they had been vaccinated; however, the mechanism is unknown—that is, we do not know whether the response is a result of exposure to plague or is innate (Wagner and Van Andel 2007, p. 2), and we do not know if the number of individual prairie dogs that have antigens are enough to protect whole colonies. We have no documented records of resistance being passed to offspring. More studies and testing need to be conducted on a plague vaccine that has had limited success in laboratory experiments on black-tailed prairie dogs; individual black-tailed prairie dogs have developed antigens to plague in response to the vaccine. The vaccine has not yet been tested on Gunnison's prairie dogs, and even if we had an effective vaccine, we currently have no method of applying it to prairie dog populations. We do not have sufficient information, such as trend data, on the trajectory of plague to develop a precise definition of foreseeable future. In the 70 years plague has been present in Gunnison's prairie dog habitat:

(1)Populations in the montane portion of the range have become isolated and no longer comprise a metapopulation structure; and

(2)populations in the prairie portion of the range have maintained a metapopulation structure, but occupancy has been reduced by 50 percent or more. The trajectory of plague effects is difficult to assess, because, as populations are reduced in size or extirpated, the effects of plague multiply at a faster rate. Using the best available information, we find that, if occupied habitat within the prairie portion of the range was reduced by at least 50 percent in 70 years, the species could be facing significant effects within a much shorter timeframe than another 70 years. Our best estimate at this time is that within half that time, another 35 years or fewer, plague may eliminate the metapopulation structure remaining within the prairie portion of the range. Therefore, we find that the foreseeable future of the Gunnison's prairie dog is 35 years. It is possible that Gunnison's prairie dogs may develop immunity to plague, or to rebound in numbers that enable it to withstand cyclic outbreaks of the disease, making the trajectory of plague longer than 35 years. It is also possible that plague will continue on a more rapid trajectory that extirpates populations at a rate we can't anticipate. However, we find that an estimate of 35 years as the foreseeable future of the Gunnison's prairie dog is reasonable, because it focuses this status review on the known effects from plague, and our best assessment that prairie dogs will not soon develop immunity to the disease. We know of no other species that have developed an immunity to plague. Based on currently available data on the continued presence of plague and its effects, we have determined that the species, rangewide, is not likely to become endangered within the foreseeable future, which we have determined to be the year 2043. However, while some populations in the montane portion of the range have so far persisted, their long-term viability is compromised by the lack of metapopulation structure. In the prairie portion of the range, the many more populations and the metapopulation structure that enable recolonization after plague epizootics, continue to persist, and in our judgment, will continue to persist into the foreseeable future. Significant Portion of the Range Analysis As required by the Act, we considered the five potential threat factors to assess whether the Gunnison's prairie dog is threatened or endangered throughout all or a significant portion of its range. When considering the listing status of the species, the first step in the analysis is to determine whether the species is in danger of extinction throughout all of its range. If this is the case, then we list the species in its entirety. For instance, if the threats to a species are directly acting on only a portion of its range, but they are at such a large scale that they place the entire species in danger of extinction, we would list the entire species. We next consider whether any significant portion of the Gunnison's prairie dog range meets the definition of endangered or is likely to become endangered in the foreseeable future (threatened). On March 16, 2007, a formal opinion was issued by the Solicitor of the Department of the Interior, “The Meaning of ‘In Danger of Extinction Throughout All or a Significant Portion of Its Range' ” (DOI 2007). A portion of a species' range is significant if it is part of the current range of the species and is important to the conservation of the species because it contributes meaningfully to the representation, resiliency, or redundancy of the species. The contribution must be at a level such that its loss would result in a decrease in the ability of the species to persist. The first step in determining whether a species is threatened or endangered in a significant portion of its range is to identify any portions of the range of the species that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. To identify portions that warrant further consideration, we determine whether there is substantial information indicating that

(1)the portions may be significant, and

(2)the species may be in danger of extinction there or likely to become so within the foreseeable future. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the range that are unimportant to the conservation of the species, such portions will not warrant further consideration. If we identify any portions that warrant further consideration, we then determine whether the species is threatened or endangered in any significant portion. If we determine that a portion of the range is not significant, we do not determine whether the species is threatened or endangered there. The terms “resiliency,” “redundancy,” and “representation” are intended to be indicators of the conservation value of portions of the range. Resiliency of a species allows it to recover from periodic disturbances. A species will likely be more resilient if large populations exist in high-quality habitat that is distributed throughout its range in a way that captures the environmental variability available. A portion of the range of a species may make a meaningful contribution to the resiliency of the species if the area is relatively large and contains particularly high-quality habitat, or if its location or characteristics make it less susceptible to certain threats than other portions of the range. When evaluating whether or how a portion of the range contributes to resiliency of the species, we evaluate the historical value of the portion and how frequently the portion is used by the species, if possible. The range portion may contribute to resiliency for other reasons; for instance, it may contain an important concentration of certain types of habitat that are necessary for the species to carry out its life-history functions, such as breeding, feeding, migration, dispersal, or wintering. Redundancy of populations may be needed to provide a margin of safety for the species to withstand catastrophic events. This concept does not mean that any portion that provides redundancy is per se a significant portion of the range of a species. The idea is to conserve enough areas of the range so that random perturbations in the system only act on a few populations. Therefore, we examine each area based on whether that area provides an increment of redundancy that is important to the conservation of the species. Adequate representation ensures that the species' adaptive capabilities are conserved. Specifically, we evaluate a range portion to see how it contributes to the genetic diversity of the species. The loss of genetically based diversity may substantially reduce the ability of the species to respond and adapt to future environmental changes. A peripheral population may contribute meaningfully to representation if there is evidence that it provides genetic diversity due to its location on the margin of the species' habitat requirements. Based on the discussion above, we identified the montane portion of the current range of the Gunnison's prairie dog as warranting further consideration to determine if it is a significant portion of the range that is threatened or endangered. This portion of the range in central and south-central Colorado, and north-central New Mexico, constitutes approximately 40 percent of the current overall range. Defining Portions of the Range In defining the portion of the current range that we considered further, we relied on range maps produced by mammalogists and geneticists that delineate the boundaries of the montane and prairie portions of the Gunnison's prairie dog's range. We believe the threats to the species are significantly different in the two range portions. The geography of each area differs significantly, affecting the ability of the prairie dog to respond to threats. Unpublished genetic analysis shows differences in Gunnison's prairie dogs between the two areas (Hafner *et al.* 2005, p. 2). This analysis is not yet complete enough to definitively indicate that two separate subspecies exist; however, along with subspecies delineation, the data also point to possible differences in Gunnison's prairie dog adaptations due to physical geography. We assessed whether we should consider smaller geographic units, such as population areas. Given the best scientific and commercial information available, we found that individual population areas did not meaningfully contribute to the representation, resiliency, or redundancy of the species. The scale at which we define the range of a particular species, that is, at a relatively coarse or fine scale, depends on the life history of the species, the data available, and the purpose for defining the range. As with other determinations under the Act, we define the current range on the basis of the best available data. The purpose of defining range (and hence the significant portion of the range) is to set the boundaries of the protections of the Act. Therefore, defining the boundaries too narrowly may lead to the failure to protect some Gunnison's prairie dogs. We have determined that it is appropriate to use a relatively coarse scale to capture all of the areas where the best available data suggests the Gunnison's prairie dog is likely to occur. The map boundaries in Figure 1 above show the Gunnison's prairie dog range. Discovery of currently existing Gunnison's prairie dog populations outside these boundaries is unlikely. The map boundaries show the significant montane portion, which is inclusive of all areas likely to support Gunnison's prairie dog populations in the montane habitat. Significance of the Montane Range When Gunnison's prairie dog colonies are well distributed across their current range, which currently includes an estimated 5 percent of the historical range, they are less susceptible to extinction than when colonies are confined to only a portion of their range. The montane habitat within Gunnison's prairie dog range contains populations significant to the overall viability of the species, because they represent: • Approximately 40 percent of the species' current habitat; • Populations in unique, higher elevation habitat, and adaptations relevant to this habitat; • Genetic material substantially unique within the range of the Gunnison's prairie dog (Hafner 2004, p. 6; Hafner *et al.* 2005, p. 2). The relatively large proportion of the entire range represented by the montane habitat adds a significant number of Gunnison's prairie dog populations widely distributed throughout distinct geographic areas. Losses of populations in montane habitat would affect the representation, resiliency, and redundancy of the species by increasing risk of extirpation by a natural or anthropogenic event, reducing adaptive characteristics to geographical or climatic conditions, and reducing remaining genetic variation. The most recent literature on climate change includes predictions of hydrologic changes, higher temperatures, and expansion of drought areas, resulting in an upward shift in range for many species (IPCC 2007, pp. 2-5); the higher elevation montane habitat could be essential to future conservation of the Gunnison's prairie dog. These factors lead us to the conclusion that loss of the Gunnison's prairie dog within the montane portion of its range would reduce the ability of the species to persist. Status of Montane Range If we identify any range portions as significant, we then determine whether the species is threatened or endangered in this significant portion of its range. Summary of Factors Affecting the Species Within the Montane Portion of the Range We evaluated whether threats to the Gunnison's prairie dog may affect its survival within the montane portion of its range, separately from the entire range. Our evaluation of threats within the montane portion of the range (based on information provided in the petition, available in our files, and available in published and unpublished studies and reports) is presented below. A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Conservation principles indicate that smaller, more isolated populations are more vulnerable to extirpation (Barnes 1993, p. 34; Cully 1993, p. 43; Fitzgerald 1970, p. 78; Gilpin and Soule 1986, pp. 30-31; Miller *et al.* 1994, p. 151; Mulhern and Knowles 1995, p. 21; Wilcox and Murphy 1985, p. 883; Wuerthner 1997, p. 464). Lomolino *et al.* (2003, p. 116) found that persistence of Gunnison's prairie dog colonies increased significantly with larger colony size and decreased isolation. The populations within the montane portion of the range are smaller and more isolated. However, we found no studies or data that specifically assess the magnitude of the threats related to agriculture land conversions, urbanization, grazing, roads, and oil and gas leasing, and resulting fragmentation within the montane portion of Gunnison's prairie dog habitat. After assessing the best available science on the magnitude and extent of the effects of agricultural land conversion, urbanization, grazing, roads, oil and gas development, and fragmentation of habitat, we find that the destruction, modification, and curtailment of Gunnison's prairie dog's habitat or range are not significant threats within the montane portion of the range. Agriculture, urbanization, roads, and oil and gas development each currently affect a small percentage of Gunnison's prairie dog habitat. Effects of livestock grazing, while widespread, have not resulted in measurable population declines. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes We have determined that shooting continues to be a threat to the Gunnison's prairie dog within the montane portion of its range and contributes to the decline of the species when combined with the effects of disease (see Factor C below). However, this threat is being monitored and managed by the States of Colorado and New Mexico, and modeling results suggest seasonal shooting closures implemented in Colorado will likely reduce population-level losses. Therefore, we have determined that overutilization for commercial, recreational, scientific, or educational purposes is not a significant threat to the Gunnison's prairie dog within the montane portion of its range. C. Disease or Predation Several well-studied colonies within the montane portion of the Gunnison's prairie dog range have been documented as being extirpated, or nearly so, due to plague. The South Park, Colorado, population area included estimated occupied habitat of 915,000 ac (371,000 ha) in 1945; 74,000 ac (30,000 ha) in 1948; and 42 ac (17 ha) in 2002 (CDOW 2007). This decline was largely due to plague and affected a substantial portion of the species' extant occupied habitat in Colorado (at least 15 percent). Plague resulted in the complete loss, over a 2-year period, of a colony within the South Park population area (Fitzgerald 1970, pp. 68-69). A plague event in Saguache County, Colorado, that progressed across seven colonies in 2 years left only scattered individuals surviving in two colonies (Lechleitner *et al.* 1968, p. 734). In Gunnison, Saguache, and Montrose Counties, Colorado, plague also was responsible for a decline from 15,569 ac (6,228 ha) of occupied habitat in 1980, to 770 ac (308 ha) in 2002 (note that Montrose County is in the Southwest population area in prairie habitat) (Capodice and Harrell 2003, pp. 5-7). A complete die-off of a colony due to plague in Chubbs Park, Chaffee County, Colorado, occurred in 1959 (Lechleitner *et al.* 1962, p. 185). In August 1958, the population was stable and healthy, but in 1959 an epizootic spread 2 mi (3 km) within 3 months; prairie dogs continued to be absent from the area in 1960 and 1961, and we have no recent information on the existence of prairie dogs in that location. Approximately 1,000 to 1,500 Gunnison's prairie dogs were killed by an outbreak of plague in a 148-ac (60-ha) colony in Curecanti National Recreation Area near Gunnison, Colorado, in 1981 (Rayor 1985, p. 194). A few animals survived the disease and Gunnison's prairie dogs were again abundant in the area in 1986 (Cully 1989, p. 49). In 2002, 252 ac (102 ha) of habitat in the Recreation Area were occupied by Gunnison's prairie dog colonies (Capodice and Harrell 2003, p. 23), but the current estimate is 12 ac (4.8 ha) (Childers 2007, p. 2). Colonies within the Recreation Area experienced six plague epidemics between 1971 and 2007. Of the 9 historic Gunnison's prairie dog colonies, 3 are currently active, and 2 act as source populations for the main prairie dog concentration area (Childers 2007, p. 1). If the source colonies die off due to plague, repopulation may not be possible because any other Gunnison's prairie dog populations remaining will be separated by distance (more than 6 mi (10 km)) and impassable geographical features such as rivers and mountains (Lomolino *et al.* 2003, p. 116). Recently, plague has been implicated in the loss of several large colonies on BLM land within the Gunnison, Colorado, population area (CDOW 2007, p. 4). A large colony southeast of Gunnison that was very active in 2005 was totally devoid of prairie dogs in 2006 and 2007. Four other large colonies in the same vicinity were active in 2006, but by 2007, no prairie dog activity was observed. Plague is the suspected cause of these extirpations because of the complete elimination of the prairie dogs with no sign of poisoning (CDOW 2007, p. 4). Fitzgerald (1993, p. 52) expressed concern about the status of the Gunnison's prairie dog in Colorado, indicating that plague had eliminated many populations, including almost all of the populations in South Park. He also suggested that populations appeared to be in poor condition in the San Luis Valley and were extirpated from the extreme upper Arkansas River Valley, as well as Jefferson, Douglas, and Lake Counties. These areas comprise most of the Gunnison's prairie dog montane habitat in Colorado. From 1984 through 1987, a plague event reduced the population of Gunnison's prairie dogs in the Moreno Valley of New Mexico from more than 100,000 individuals to between 250 and 500, a decline of greater than 99 percent (Cully *et al.* 1997, pp. 708-711). Although the remaining population rebounded (increased in size to a certain extent) following the epizootic, another plague event swept through the area in 1988, and the population in July 1996 was still only a small fraction of what it had been in 1984 (Cully *et al.* 1997, p. 717). Occupancy modeling performed for Colorado in 2005 indicated a lower proportion of occupancy in the montane portion of the species' range within Colorado (3.2 percent) than in the prairie portion within Colorado (16.0 percent) (Andelt *et al.* 2006, p. 17; CDOW 2007, p. 19). When the study was repeated over the same plots in 2007, occupancy was again found to be lower (3.6 percent) in the montane range portion in Colorado than in the southwestern portion (18.3 percent) (CDOW 2007, p. 19). The only recent threat responsible for whole population declines and extirpations, as documented in the studies cited in this section, is plague. The frequency of plague epizootics appears to be high in montane habitat due to moister environmental conditions that are conducive to greater flea densities. The impact of plague epizootics in montane habitat is great because the small, isolated populations cannot recolonize. Within the South Park, Gunnison, and Southeast montane population areas in Colorado, no prairie dog complexes of appreciable size exist, and only a few small complexes exist within the San Luis Valley population area (CDOW 2007, pp. 1-17). Without a metapopulation structure, an overall decline in persistence takes place (Lomolino and Smith 2001, p. 942). The landscape status in the montane portion of Gunnison's prairie dog range is characterized by fewer, smaller colonies that are isolated, and few to no complexes or metapopulation structure. These factors make the prairie dogs in this habitat highly susceptible to plague-related declines, and we have no evidence of recovery from plague in the montane habitat area. The studies cited above document the serious impact that plague has on Gunnison's prairie dogs within the montane portion of the range. Although plague antibody titers have been found in a few individuals, periodic epizootic plague events generally kill more than 99 percent of an affected population. Whether individual populations recover from these epizootics depends on two main factors:

(1)The availability of other source populations to recolonize an area; and

(1)A higher frequency of epizootics due to the moister montane climate that is conducive to higher abundance of fleas that spread plague;

(2)smaller populations that cannot recover in numbers from plague epizootics; and

(3)isolated populations and no metapopulation structure, due to reduced population sizes from past plague epizootics and montane geography, and therefore a significantly limited ability to recolonize. After assessing the best available science on the magnitude and extent of the effects of plague, we find that plague is significantly impacting the species in the montane portion of its range. D. Inadequacy of Existing Regulatory Mechanisms On the basis on a review of the available existing information, it does not appear that the inadequacy of existing regulatory mechanisms is a significant threat to the Gunnison's prairie dog. However, the percentage of private lands within the montane portion of the species' range results in a paucity of regulatory mechanisms that potentially result in increased shooting and poisoning, which exacerbate the effects of plague in that portion of its range. At this time, no regulatory mechanisms exist to mitigate the effects of plague. E. Other Natural or Manmade Factors Poisoning could have a negative effect on small, isolated populations, particularly in conjunction with disease and shooting; therefore, poisoning in the montane area may be more likely to contribute to the decline of the species by further fragmenting the small populations and curtailing recolonization. However, while poisoning bears monitoring, at this time, we conclude that it is not significantly affecting the populations within this portion of the range. No information currently indicates that drought negatively affects, or is likely to affect, the Gunnison's prairie dog within the montane portion of its range, or that climate change will affect the species within the foreseeable future; however, various scenarios are plausible. We conclude that no other natural or manmade factors are a significant threat to this species, at this time, throughout the montane portion of its range. Finding The information summarized in this status review includes substantial information that was not available at the time of the 90-day petition finding (71 FR 6241, February 7, 2006) and other information we received during the public comment period following the publication of the 90-day finding. This 12-month finding reflects and incorporates information we received during the public comment period or obtained through consultation, literature research, and field visits, and responds to significant issues identified. We determined that the Gunnison's prairie dog does not meet the definition of threatened or endangered throughout its entire range, because, within approximately 60 percent of its range (the prairie habitat in the southwestern portion of its range), the threats (primarily plague) are not of a magnitude that currently puts the species in danger of extinction (endangered), or makes it likely to become endangered within the foreseeable future (threatened). However, we determined that the Gunnison's prairie dog is warranted for listing within the montane portion of its range (approximately 40 percent of the species total range). The determination of a finding of threatened or endangered involves weighing the magnitude and immediacy of the threats. The cumulative magnitude of threats within the montane portion of the range is high. Immediacy of threats varies geographically across the montane range, but is high in areas of the montane habitat where populations have already been extirpated, primarily the South Park and Southeast population areas. Within the prairie portion of the Gunnison's prairie dog's range, colonies are subject to the same threats, but at a different magnitude. Plague has the same potential to reduce population size significantly there as in montane habitat, but due to more open geography, an existing metapopulation structure, larger population sizes, and proximity of other colonies, recolonization has been observed. The ability of populations to recolonize relatively quickly enables them to recover more fully between plague enzootics. Ability to recolonize in prairie habitat also enables Gunnison's prairie dog populations to recover from poisoning and shooting, which act to exacerbate the more significant threat from plague. The species' status in this portion of the range is characterized by a metapopulation structure, and larger colonies and complexes that are better able to recover from plague epidemics, to be recolonized after plague epizootics, and even to colonize new areas. We determined that the Gunnison's prairie dog is warranted for listing within the montane portion of its range (approximately 40 percent of the species total range). We find that threats, primarily plague, exist in the montane portion of their range at a magnitude that make the species likely to become threatened or endangered within the foreseeable future, which we have determined to be the year 2043. We determined that Gunnison's prairie dog populations within the prairie portion of the range continue to be viable due to the functioning metapopulation structure and the apparent resistance to plague epizootics within the Aubrey Valley, Arizona, complex. Therefore, we find that the Gunnison's prairie dog does not warrant listing throughout its entire range, but that populations within the montane portion of its range are significant to the continued existence of the species and warrants listing in that portion only (see discussion under Significant Portion of the Range Analysis). However, listing the montane Gunnison's prairie dog is warranted but precluded at this time by pending proposals for other species with higher listing priorities based on taxonomic uniqueness (the only species described for the genus), or other species that are not currently listed (see discussion under Preclusion and Expeditious Progress). If future genetic analyses or taxonomic studies indicate conclusively that two subspecies of Gunnison's prairie dogs exist, this would affect our proposed listing. Instead of defining the montane habitat as a significant portion of the range, we would propose listing the subspecies that exists in that habitat. Sylvatic plague is the only significant factor affecting the future conservation status of the species. Within the montane portion of the species' range, the threat of plague has greater magnitude, and colony recovery from plague is slow or nonexistent. Distributional data indicate that the species' status in this portion of its range is characterized by lower occupancy, smaller colony sizes, and fragmented and isolated colonies that impede recovery and persistence of populations. Reliable data regarding the status of the Gunnison's prairie dog are predominantly in the form of percent occupancy studies, which indicate significantly lower occupancy in montane habitat (for Colorado, approximately 3.6 percent versus 18.3 percent in prairie habitat). For example, the South Park population area, which comprises nearly 15 percent of the species' habitat in Colorado, is nearly devoid of the species. Within the four montane population areas in Colorado, prairie dog complexes exist within only one, and those complexes are few and small. With little or no metapopulation structure, an overall decline in persistence is apparent in the montane habitat. Populations within montane habitat have three distinct disadvantages in resisting the effects of plague:

(1)A higher frequency of epizootics due to the moister montane climate that is conducive to higher abundance of fleas that spread plague;

(2)smaller populations that cannot recover in numbers from plague epizootics; and

(3)isolated populations and little or no metapopulation structure, due to reduced population sizes from past plague epizootics and montane geography, and therefore a significantly limited ability to recolonize. Some lands within the montane range supporting the Gunnison's prairie dog are controlled by Federal or State agencies, or have been set aside as open space by local governments. However, a greater portion of the montane range is private land with fewer regulatory mechanisms in place for conserving prairie dogs. We found that poisoning and shooting are not significant threats rangewide. While they can have greater impacts on small populations by compounding the effects from the primary threat of plague and further decreasing colony size and fragmenting and isolating colonies, at this time poisoning and shooting do not appear to be occurring at a level that raises concern above that related to plague. Cumulative threats do, however, impede recovery of some populations and imperil others. Where recovery does not occur, Gunnison's prairie dog populations are likely to remain small, fragmented, and susceptible to extirpation. The following summarizes the key points leading to our finding:

(1)Historic data indicate a decline from 24,000,000 ac (9,700,000 ha) of occupied habitat to between 340,000 and 500,000 ac (136,000 to 200,000 ha).

(2)Recent data indicate that approximately 3.6 percent of potential Gunnison's prairie dog habitat is occupied in the montane portion of the range, as compared to 18.3 percent occupancy in the prairie portion of the range.

(3)The Gunnison's prairie dog occupies two genetically important areas of its range (prairie and montane portions). The two portions have different geographical features and different responses to plague.

(4)Plague has resulted in large reductions in prairie dogs and occupied habitat within both portions of the range. The prairie portion of the range is responding to plague by recolonizing affected populations. Within the montane portion of the range, the plague response is more significant (large population losses, loss of all metapopulation structure, nearly no recolonization occurring, and entire population areas nearly devoid of prairie dogs).

(5)We determined that the Gunnison's prairie dog is warranted for listing in the montane portion because:

(A)The montane portion of the range is significant to the species' viability (it represents approximately 40 percent of the species' habitat; populations are adapted to unique, montane habitat; and these animals are genetically unique).

(B)Loss of Gunnison's prairie dogs in the montane portion would affect:

(i)resiliency of the species, because the montane portion represents approximately 40 percent of the species range, and the small, isolated populations are not likely to rebound after decimation from plague;

(ii)redundancy of the species, because random perturbations are not likely to act equally on both the montane and prairie portions; and

(iii)representation of the species, because the montane population is genetically distinct from the prairie population and the species' remaining genetic diversity would be reduced.

(C)The species is warranted for listing in this portion of the range because:

(i)Occupancy data (3 percent) is significantly lower in the montane range portion.

(ii)The montane portion of the range no longer has a metapopulation structure, and populations reduced by plague have not rebounded; repopulation from nearby populations has been curtailed by distance and geographical barriers.

(iii)The two portions of the range are separated by mountain ranges that almost completely limit prairie dog movement between them.

(iv)Populations within the montane portion of the range are separated from each other by four mountain ranges and several large rivers, which preclude repopulation after plague epizootics.

(v)Some entire population areas within montane range are now nearly devoid of Gunnison's prairie dogs.

(vi)Plague appears to be more prevalent in the montane portion of the range, possibly due to greater flea populations that thrive in moister climates. We determined that the magnitude of threats affecting the Gunnison's prairie dog in the montane portion of its range is “high,” because plague is significantly affecting the remaining small, isolated populations, and plague epizootics can extirpate populations there within a short timeframe (3 to 10 years); metapopulation structure in the prairie portion of the range exists, facilitating recolonization when populations are extirpated. We find that the threat posed by plague is “imminent” because plague epizootics are known to be occurring and the effects are measurable. Therefore, pursuant to our September 21, 1983 (48 FR 43098) Listing and Recovery Priority Guidelines, we assign a LPN of 2 to this portion of the species' range. We reviewed the available information to determine if existing and foreseeable threats to the Gunnison's prairie dog within montane habitat are of sufficient extent and magnitude to require emergency listing as threatened or endangered. We have determined that an emergency listing is not warranted for this species at this time, because populations are currently not threatened in the prairie portion of the range, and because emergency listing would not lessen the effects from plague, which is the significant threat in the montane portion of the range. Preclusion and Expeditious Progress Preclusion is a function of the listing priority of a species in relation to the resources that are available and competing demands for those resources. Thus, in any given fiscal year (FY), multiple factors dictate whether it will be possible to undertake work on a proposed listing regulation or whether promulgation of such a proposal is warranted but precluded by higher-priority listing actions. The resources available for listing actions are determined through the annual Congressional appropriations process. The appropriation for the Listing Program is available to support work involving the following listing actions: proposed and final listing rules; 90-day and 12-month findings on petitions to add species to the Lists of Endangered and Threatened Wildlife and Plants or to change the status of a species from threatened to endangered; annual determinations on prior “warranted but precluded” petition findings as required under section 4(b)(3)(C)(i) of the Act; proposed and final rules designating critical habitat; and litigation-related, administrative, and program management functions (including preparing and allocating budgets, responding to Congressional and public inquiries, and conducting public outreach regarding listing and critical habitat). The work involved in preparing various listing documents can be extensive and may include, but is not limited to: gathering and assessing the best scientific and commercial data available and conducting analyses used as the basis for our decisions; writing and publishing documents; and obtaining, reviewing, and evaluating public comments and peer review comments on proposed rules and incorporating relevant information into final rules. The number of listing actions that we can undertake in a given year also is influenced by the complexity of those listing actions; that is, more complex actions generally are more costly. For example, during the past several years, the cost (excluding publication costs) for preparing a 12-month finding, without a proposed rule, has ranged from approximately $11,000 for one species with a restricted range and involving a relatively uncomplicated analysis to $305,000 for another species that is wide-ranging and involving a complex analysis. We cannot spend more than is appropriated for the Listing Program without violating the Anti-Deficiency Act (see 31 U.S.C. 1341(a)(1)(A)). In addition, in FY 1998 and for each fiscal year since then, Congress has placed a statutory cap on funds which may be expended for the Listing Program, equal to the amount expressly appropriated for that purpose in that fiscal year. This cap was designed to prevent funds appropriated for other functions under the Act (for example, recovery funds for removing species from the Lists), or for other Service programs, from being used for Listing Program actions (see House Report 105-163, 105th Congress, 1st Session, July 1, 1997). Recognizing that designation of critical habitat for species already listed would consume most of the overall Listing Program appropriation, Congress also put a critical habitat subcap in place in FY 2002 and has retained it each subsequent year to ensure that some funds are available for other work in the Listing Program: “The critical habitat designation subcap will ensure that some funding is available to address other listing activities” (House Report No. 107-103, 107th Congress, 1st Session, June 19, 2001). In FY 2002 and each year until FY 2006, the Service has had to use virtually the entire critical habitat subcap to address court-mandated designations of critical habitat, and consequently none of the critical habitat subcap funds have been available for other listing activities. In FY 2007, we were able to use some of the critical habitat subcap funds to fund proposed listing determinations for high-priority candidate species; we expect to also be able to do this in FY 2008. Thus, through the listing cap, the critical habitat subcap, and the amount of funds needed to address court-mandated critical habitat designations, Congress and the courts have in effect determined the amount of money available for other listing activities. Therefore, the funds in the listing cap, other than those needed to address court-mandated critical habitat for already listed species, set the limits on our determinations of preclusion and expeditious progress. Congress also recognized that the availability of resources was the key element in deciding whether, when making a 12-month petition finding, we would prepare and issue a listing proposal or make a “warranted but precluded” finding for a given species. The Conference Report accompanying Public Law 97-304, which established the current statutory deadlines and the warranted-but-precluded finding, states (in a discussion on 90-day petition findings that by its own terms also covers 12-month findings) that the deadlines were “not intended to allow the Secretary to delay commencing the rulemaking process for any reason other than that the existence of pending or imminent proposals to list species subject to a greater degree of threat would make allocation of resources to such a petition [that is, for a lower-ranking species] unwise.” In FY 2008, expeditious progress is that amount of work that can be achieved with $8,206,940, which is the amount of money that Congress appropriated for the Listing Program at this time (that is, the portion of the Listing Program funding not related to critical habitat designations for species that are already listed). Our process is to make our determinations of preclusion on a nationwide basis to ensure that the species most in need of listing will be addressed first and also because we allocate our listing budget on a nationwide basis. The $8,206,940 for listing activities (that is, the portion of the Listing Program funding not related to critical habitat designations for species that already are listed) will be used to fund work in the following categories: compliance with court orders and court-approved settlement agreements requiring that petition findings or listing determinations be completed by a specific date; section 4 (of the Act) listing actions with absolute statutory deadlines; essential litigation-related, administrative, and program management functions; and high-priority listing actions. The allocations for each specific listing action are identified in the Service's FY 2008 Draft Allocation Table (part of our administrative record). We are working on completing our allocation at this time. More funds are available in FY 2008 than in previous years to work on listing actions that are not the subject of court orders or court-approved settlement agreements. Our decision that a proposed rule to list the montane portion of the Gunnison's prairie dog is warranted but precluded includes consideration of its listing priority. In accordance with guidance we published on September 21, 1983, we assign an LPN to each candidate species (48 FR 43098). Such a priority ranking guidance system is required under section 4(h)(3) of the Act (16 U.S.C. 1533(h)(3)). Using this guidance, we assign each candidate an LPN of 1 to 12, depending on the magnitude of threats (high vs. moderate to low), immediacy of threats (imminent or non-imminent), and taxonomic status of the species, in order of priority (monotypic genus (a species that is the sole member of a genus), species, subspecies, distinct population segment, or significant portion of the range). The lower the listing priority number, the higher the listing priority (that is, a species with an LPN of 1 would have the highest listing priority). We currently have more than 120 species with an LPN of 2. Therefore, we further rank the candidate species with an LPN of 2 by using the following extinction-risk type criteria: International Union for the Conservation of Nature and Natural Resources

(IUCN)Red list status/rank, Heritage rank (provided by NatureServe), Heritage threat rank (provided by NatureServe), and species currently with fewer than 50 individuals, or 4 or fewer populations. Those species with the highest IUCN rank (critically endangered), the highest Heritage rank (G1), the highest Heritage threat rank (substantial, imminent threats), and currently with fewer than 50 individuals, or fewer than 4 populations, comprise a list of approximately 40 candidate species (“Top 40”). These 40 candidate species have the highest priority to receive funding to work on a proposed listing determination. To be more efficient in our listing process, as we work on proposed rules for these species in the next several years, we are preparing multi-species proposals when appropriate, and these may include species with lower priority if they overlap geographically or have the same threats as a species with an LPN of 2. In addition, available staff resources are also a factor in determining high-priority species provided with funding. Finally, proposed rules for reclassification of threatened species to endangered are lower priority, since the listing of the species already affords the protection of the Act and implementing regulations. We assigned the montane portion of the Gunnison's prairie dog an LPN of 5, based on our finding that the species faces threats of high magnitude that are not imminent. As explained above, a determination that listing is warranted but precluded must also demonstrate that expeditious progress is being made to add or remove qualified species to and from the Lists of Endangered and Threatened Wildlife and Plants. (We note that we do not discuss specific actions taken on progress towards removing species from the Lists because that work is conducted using appropriations for our Recovery program, a separately budgeted component of the Endangered Species Program. As explained above in our description of the statutory cap on Listing Program funds, the Recovery Program funds and actions supported by them cannot be considered in determining expeditious progress made in the Listing Program.) As with our “precluded” finding, expeditious progress in adding qualified species to the Lists is a function of the resources available and the competing demands for those funds. Our expeditious progress in FY 2007 in the Listing Program, up to the date of making this finding for the Gunnison's prairie dog, included preparing and publishing the following determinations: FY 2007 Completed Listing Actions Publication date Title Actions FR pages 10/11/2006 Withdrawal of the Proposed Rule To List the Cow Head Tui Chub ( *Gila biocolor vaccaceps* ) as Endangered Final withdrawal, Threats eliminated 71 FR 59700-59711 10/11/2006 Revised 12-Month Finding for the Beaver Cave Beetle ( *Pseudanophthalmus major* ) Notice of 12-month petition finding, Not warranted 71 FR 59711-59714 11/14/2006 12-Month Finding on a Petition To List the Island Marble Butterfly ( *Euchloe ausonides insulanus* ) as Threatened or Endangered Notice of 12-month petition finding, Not warranted 71 FR 66292-66298 11/14/2006 90-Day Finding for a Petition To List the Kennebec River Population of Anadromous Atlantic Salmon as Part of the Endangered Gulf of Maine Distinct Population Segment Notice of 90-day petition finding, Substantial 71 FR 66298-66301 11/21/2006 90-Day Finding on a Petition To List the Columbian Sharp-Tailed Grouse as Threatened or Endangered Notice of 90-day petition finding, Not substantial 71 FR 67318-67325 12/5/2006 90-Day Finding on a Petition To List the Tricolored Blackbird as Threatened or Endangered Notice of 90-day petition finding, Not substantial 71 FR 70483-70492 12/6/2006 12-Month Finding on a Petition To List the Cerulean Warbler ( *Dendroica cerulea* ) as Threatened with Critical Habitat Notice of 12-month petition finding, Not warranted 71 FR 70717-70733 12/6/2006 90-Day Finding on a Petition To List the Upper Tidal Potomac River Population of the Northern Water Snake ( *Nerodia sipedon* ) as an Endangered Distinct Population Segment Notice of 90-day petition finding, Not substantial 71 FR 70715-70717 12/14/2006 90-Day Finding on a Petition To Remove the Uinta Basin Hookless Cactus From the List of Endangered and Threatened Plants; 90-Day Finding on a Petition To List the Pariette Cactus as Threatened or Endangered Notice of 5-year review, Initiation Notice of 90-day petition finding, Not substantial Notice of 90-day petition finding, Substantial 71 FR 75215-75220 12/19/2006 Withdrawal of Proposed Rule To List *Penstemon grahamii* (Graham's beardtongue) as Threatened With Critical Habitat Notice of withdrawal, More abundant than believed, or diminished threats 71 FR 76023-76035 12/19/2006 90-Day Finding on Petitions To List the Mono Basin Area Population of the Greater Sage-Grouse as Threatened or Endangered Notice of 90-day petition finding, Not substantial 71 FR 76057-76079 1/9/2007 12-Month petition finding and Proposed Rule To List the Polar Bear ( *Ursus maritimus* ) as Threatened Throughout Its Range; Proposed Rule Notice of 12-month petition finding, Warranted Proposed Listing, Threatened 72 FR 1063-1099 1/10/2007 Endangered and Threatened Wildlife and Plants; Clarification of Significant Portion of the Range for the Contiguous United States Distinct Population Segment of the Canada Lynx Clarification of findings 72 FR 1186-1189 1/12/2007 Withdrawal of Proposed Rule To List *Lepidium papilliferum* (Slickspot Peppergrass) Notice of withdrawal, More abundant than believed, or diminished threats 72 FR 1621-1644 2/2/2007 12-Month Finding on a Petition To List the American Eel as Threatened or Endangered Notice of 12-month petition finding, Not warranted 72 FR 4967-4997 2/13/2007 90-Day Finding on a Petition To List the Jollyville Plateau Salamander as Endangered Notice of 90-day petition finding, Substantial 72 FR 6699-6703 2/13/2007 90-Day Finding on a Petition To List the San Felipe Gambusia as Threatened or Endangered Notice of 90-day petition finding, Not substantial 72 FR 6703-6707 2/14/2007 90-Day Finding on a Petition To List *Astragalus debequaeus* (DeBeque milkvetch) as Threatened or Endangered Notice of 90-day petition finding, Not substantial 72 FR 6998-7005 2/21/2007 90-Day Finding on a Petition To Reclassify the Utah Prairie Dog From Threatened to Endangered and Initiation of a 5-Year Review Notice of 5-year review, Initiation Notice of 90-day petition finding, Not substantial 72 FR 7843-7852 3/8/2007 90-Day Finding on a Petition To List the Monongahela River Basin Population of the Longnose Sucker as Endangered Notice of 90-day petition finding, Not substantial 72 FR 10477-10480 03/29/2007 90-Day Finding on a Petition To List the Siskiyou Mountains Salamander and Scott Bar Salamander as Threatened or Endangered Notice of 90-day petition finding, Substantial 72 FR 14750-14759 04/24/2007 Revised 12-Month Finding for Upper Missouri River Distinct Population Segment of Fluvial Arctic Grayling Notice of 12-month petition finding, Not warranted 72 FR 20305-20314 05/02/2007 12-Month Finding on a Petition To List the Sand Mountain Blue Butterfly ( *Euphilotes pallescens* ssp. *arenamontana* ) as Threatened or Endangered with Critical Habitat Notice of 12-month petition finding, Not warranted 72 FR 24253-24263 05/22/2007 Status of the Rio Grande Cutthroat Trout Notice of Review 72 FR 28864-28665 05/30/2007 90-Day Finding on a Petition To List the Mt. Charleston Blue Butterfly as Threatened or Endangered Notice of 90-day petition finding, Substantial 72 FR 29933-29941 06/05/2007 12-Month Finding on a Petition To List the Wolverine as Threatened or Endangered Notice of Review 72 FR 31048-31049 06/06/2007 90-Day Finding on a Petition To List the Yellow-Billed Loon as Threatened or Endangered Notice of 90-day petition finding, Substantial 72 FR 31256-31264 06/13/2007 12-Month Finding for a Petition To List the Colorado River Cutthroat Trout as Threatened or Endangered Notice of 12-month petition finding, Not warranted 72 FR 32589-32605 06/25/2007 12-Month Finding on a Petition To List the Sierra Nevada Distinct Population Segment of the Mountain Yellow-Legged Frog ( *Rana muscosa* ) Notice of amended 12-month petition finding, Warranted but precluded 72 FR 34657-34661 07/05/2007 12-Month Finding on a Petition To List the Casey's June Beetle ( *Dinacoma caseyi* ) as Endangered With Critical Habitat Notice of 12-month petition finding, Warranted but precluded 72 FR 36635-36646 08/15/2007 90-Day Finding on a Petition To List the Yellowstone National Park Bison Herd as Endangered Notice of 90-day petition finding, Not substantial 72 FR 45717-45722 08/16/2007 90-Day Finding on a Petition To List *Astragalus anserinus* (Goose Creek milk-vetch) as Threatened or Endangered Notice of 90-day petition finding, Substantial 72 FR 46023-46030 8/28/2007 12-Month Finding on a Petition To List the Gunnison's Prairie Dog as Threatened or Endangered Notice of Review 72 FR 49245-49246 9/11/2007 90-Day Finding on a Petition To List Kenk's Amphipod, Virginia Well Amphipod, and the Copepod *Acanthocyclops columbiensis* as Endangered Notice of 90-day petition finding, Not substantial 72 FR 51766-51770 9/18/2007 12-month Finding on a Petition To List *Sclerocactus brevispinus* (Pariette cactus) as an Endangered or Threatened Species; Taxonomic Change From *Sclerocactus glaucus* to *Sclerocactus brevispinus, S. glaucus* , and *S. wetlandicus* Notice of 12-month petition finding for uplisting, Warranted but precluded 72 FR 53211-53222 In FY 2007, we provided funds to work on proposed listing determinations for the following high-priority species: 3 southeastern aquatic species (Georgia pigtoe, interrupted rocksnail, and rough hornsnail), 2 Oahu plants ( *Doryopteris takeuchii, Melicope hiiakae* ), 31 Kauai species (Kauai creeper, *Drosophila attigua, Astelia waialealae, Canavalia napaliensis, Chamaesyce eleanoriae, Chamaesyce remyi* var. *kauaiensis, Chamaesyce remyi* var. * remyi, Charpentiera densiflora, Cyanea eleeleensis, Cyanea kuhihewa, Cyrtandra oenobarba, Dubautia imbricata* ssp. *imbricata, Dubautia plantaginea* ssp. *magnifolia, Dubautia waialealae, Geranium kauaiense, Keysseria erici, Keysseria helenae, Labordia helleri, Labordia pumila, Lysimachia daphnoides, Melicope degeneri, Melicope paniculata, Melicope puberula, Myrsine mezii, Pittosporum napaliense, Platydesma rostrata, Pritchardia hardyi, Psychotria grandiflora, Psychotria hobdyi, Schiedea attenuata, Stenogyne kealiae* ), 4 Hawaiian damselflies ( * Megalagrion nesiotes, Megalagrion leptodemas, Megalagrion oceanicum, Megalagrion pacificum * ), and one Hawaiian plant ( *Phyllostegia hispida (no common name)* ). In FY 2008, we are continuing to work on these listing proposals (we are now including an additional 17 species in the Kauai species proposed listing determination package). In addition, we are continuing to work on several other determinations listed below, which we funded in FY 2007 and are scheduled to complete in FY 2008. Actions Funded in FY 2007 That Have Yet To Be Completed Species Action Actions Subject to Court Order/Settlement Agreement Wolverine 12-month petition finding (remand). Western sage grouse 90-day petition finding (remand). Rio Grande cutthroat trout Candidate assessment (remand). Actions with Statutory Deadlines Polar bear Final listing determination. Ozark chinquapin 90-day petition finding. Tucson shovel-nosed snake 90-day petition finding. Gopher tortoise—Florida population 90-day petition finding. Sacramento valley tiger beetle 90-day petition finding. Eagle lake trout 90-day petition finding. Smooth billed ani 90-day petition finding. Mojave ground squirrel 90-day petition finding. Gopher Tortoise—eastern population 90-day petition finding. Bay Springs salamander 90-day petition finding. Tehachapi slender salamander 90-day petition finding. Coaster brook trout 90-day petition finding. Mojave fringe-toed lizard 90-day petition finding. Evening primrose 90-day petition finding. Palm Springs pocket mouse 90-day petition finding. Northern leopard frog 90-day petition finding. Shrike, Island loggerhead 90-day petition finding. Cactus ferruginous pygmy owl 90-day petition finding. Our expeditious progress so far in FY 2008 in the Listing Program, includes preparing and publishing the following: FY 2008 Completed Listing Actions Publication date Title Actions FR Pages 10/09/2007 90-Day Finding on a Petition to List the Black-Footed Albatross ( *Phoebastria nigripes* ) as Threatened or Endangered Notice of 90-day Petition Finding, Substantial 72 FR 57278-57283 10/09/2007 90-Day Finding on a Petition To List the Giant Palouse Earthworm as Threatened or Endangered Notice of 90-day Petition Finding, Not substantial 72 FR 57273-57276 10/23/2007 90-Day Finding on a Petition To List the Mountain Whitefish ( *Prosopium williamsoni* ) in the Big Lost River, ID, as Threatened or Endangered Notice of 90-day Petition Finding, Not substantial 72 FR 59983-59989 10/23/2007 90-Day Finding on a Petition To List the Summer-Run Kokanee Population in Issaquah Creek, WA, as Threatened or Endangered Notice of 90-day Petition Finding, Not substantial 72 FR 59979-59983 11/08/2007 Response to Court on Significant Portion of the Range, and Evaluation of Distinct Population Segments, for the Queen Charlotte Goshawk Response to Court 72 FR 63123-63140 12/13/07 12-Month Finding on a Petition To List the Jollyville Plateau salamander ( *Eurycea tonkawae* ) as Endangered With Critical Habitat Notice of 12-month Petition Finding, Warranted but Precluded 72 FR 71039-71054 1/08/08 90-Day Finding on a Petition To List the Pygmy Rabbit ( *Brachylagus idahoensis* ) as Threatened or Endangered Notice of 90-day Petition Finding, Substantial 73 FR 1312-1313 1/24/2008 12-Month Finding on a Petition To List the Siskiyou Mountains Salamander ( *Plethodon stormi* ) and Scott Bar Salamander ( *Plethodon asupak* ) as Threatened or Endangered Notice of 12-month Petition Finding, Not Warranted 73 FR 4379-4418 Our expeditious progress also includes work on listing actions, which we are funding in FY 2008. These actions are listed below. We are conducting work on those actions in the top section of the table under a deadline set by a court. Actions in the middle section of the table are being conducted to meet statutory timelines, that is, timelines required under the Act. Actions in the bottom section of the table are high priority listing actions, which include at least one or more species with an LPN of 2, available staff resources, and when appropriate, species with a lower priority if they overlap geographically or have the same threats as the species with the high priority. Actions Anticipated To Be Funded in FY 2008 That Have Yet to be Completed Species Action Actions Subject to Court Order/Settlement Agreement Bonneville cutthroat trout 12-month petition finding (remand). Actions With Statutory Deadlines Polar bear Final listing determination. 3 Southeastern aquatic species Final listing. *Phyllostegia hispida* Final listing. Yellow-billed loon 12-month petition finding. Black-footed albatross 12-month petition finding. Mount Charleston blue butterfly 12-month petition finding. Goose Creek milk-vetch 12-month petition finding. White-tailed prairie dog 12-month petition finding. Mono Basin sage grouse (vol. remand) 90-day petition finding. Ashy storm petrel 90-day petition finding. Longfin smelt—San Fran. Bay population 90-day petition finding. Black-tailed prairie dog 90-day petition finding. Lynx (include New Mexico in listing) 90-day petition finding. Wyoming pocket gopher 90-day petition finding. Llanero coqui 90-day petition finding. Least chub 90-day petition finding. American pika 90-day petition finding. Dusky tree vole 90-day petition finding. Sacramento Mts. checkerspot butterfly 90-day petition finding. Kokanee—Lake Sammamish population 90-day petition finding. 206 species 90-day petition finding. 475 Southwestern species 90-day petition finding. High Priority Listing Actions 31 Kauai species 1 Proposed listing. 8 packages of high-priority candidate species Proposed listing. 1 Funds used for this listing action were also provided in FY 2007. We have endeavored to make our listing actions as efficient and timely as possible, given the requirements of the relevant law and regulations, and constraints relating to workload and personnel. We are continually considering ways to streamline processes or achieve economies of scale, such as by batching related actions together. Given our limited budget for implementing section 4 of the Act, these actions described above collectively constitute expeditious progress. Conclusion We will add the montane portion of the Gunnison's prairie dog to the list of candidate species. We intend any listing action for the species to be as accurate as possible by reflecting the best available information. Therefore, we will continue to accept additional information and comments on the status of and threats to this species from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding. If an emergency situation develops that warrants an emergency listing of this species, we will act immediately to provide additional protection. References A complete list of all references cited herein is available upon request from the Western Colorado Field Office (see ADDRESSES ). Author The primary authors of this document are staff located at the Colorado Field Office (see ADDRESSES ). Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: January 29, 2008. H. Dale Hall, Director, U.S. Fish and Wildlife Service. [FR Doc. 08-493 Filed 2-4-08; 8:45 am]

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