Rules and Regulations. Interim final rule with request for comments

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BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 989 [Docket No. AMS-FV-07-0130; FV08-989-1 IFR] Raisins Produced from Grapes Grown in California; Final Free and Reserve Percentages for 2007-08 Crop Natural (sun-dried) Seedless Raisins AGENCY: Agricultural Marketing Service, USDA. ACTION: Interim final rule with request for comments. SUMMARY: This rule establishes final volume regulation percentages for 2007-08 crop Natural (sun-dried) Seedless

(NS)raisins covered under the Federal marketing order for California raisins (order). The order regulates the handling of raisins produced from grapes grown in California and is locally administered by the Raisin Administrative Committee (Committee). The volume regulation percentages are 85 percent free and 15 percent reserve. The percentages are intended to help stabilize raisin supplies and prices, and strengthen market conditions. DATES: Effective February 20, 2008. The volume regulation percentages apply to acquisitions of NS raisins from the 2007-08 crop until the reserve raisins from that crop are disposed of under the marketing order. Comments received by April 21, 2008, will be considered prior to issuance of a final rule. ADDRESSES: Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Fax:

(202)720-8938; or Internet: *http://www.regulations.gov.* All comments should reference the docket number and the date and page number of this issue of the **Federal Register** and will be made available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Rose M. Aguayo, Marketing Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone:

(559)487-5901; Fax:

(559)487-5906; or E-mail: *Rose.Aguayo@usda.gov* or *Kurt.Kimmel@usda.gov.* Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone:

(202)720-2491; Fax:

(202)720-8938; or E-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Agreement and Order No. 989, both as amended (7 CFR part 989), regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Department of Agriculture

(USDA)is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the order provisions now in effect, final free and reserve percentages may be established for raisins acquired by handlers during the crop year. This rule establishes final free and reserve percentages for NS raisins for the 2007-08 crop year, which began August 1, 2007, and ends July 31, 2008. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule establishes final volume regulation percentages for 2007-08 crop NS raisins covered under the order. The volume regulation percentages are 85 percent free and 15 percent reserve. Free tonnage raisins may be sold by handlers to any market. Reserve raisins must be held in a pool for the account of the Committee and are disposed of through various programs authorized under the order. For example, reserve raisins may be sold by the Committee to handlers for free use or to replace part of the free tonnage raisins they exported; used in diversion programs; carried over as a hedge against a short crop; or disposed of in other outlets not competitive with those for free tonnage raisins, such as government purchase, distilleries, or animal feed. The volume regulation percentages are intended to help stabilize raisin supplies and prices, and strengthen market conditions. The Committee unanimously recommended final percentages for NS raisins on October 4, 2007, and October 11, 2007. Computation of Trade Demands Section 989.54 of the order prescribes procedures and time frames to be followed in establishing volume regulation. This includes methodology used to calculate free and reserve percentages. Pursuant to § 989.54(a) of the order, the Committee met on August 14, 2007, to review shipment and inventory data, and other matters relating to the supplies of raisins of all varietal types. The Committee computed a trade demand for each varietal type for which a free tonnage percentage might be recommended. Trade demand is computed using a formula specified in the order and, for each varietal type, is equal to 90 percent of the prior year's shipments of free tonnage and reserve tonnage raisins sold for free use into all market outlets, adjusted by subtracting the carryin on August 1 of the current crop year, and adding the desirable carryout at the end of that crop year. As specified in § 989.154(a), the desirable carryout for NS raisins shall equal the total shipments of free tonnage during August and September for each of the past 5 crop years, converted to a natural condition basis, dropping the high and low figures, and dividing the remaining sum by three, or 60,000 natural condition tons, whichever is higher. For all other varietal types, the desirable carryout shall equal the total shipments of free tonnage during August, September and one-half of October for each of the past 5 crop years, converted to a natural condition basis, dropping the high and low figures, and dividing the remaining sum by three. In accordance with these provisions, the Committee computed and announced the 2007-08 trade demand for NS raisins at 232,822 tons as shown below. Computed Trade Demand [Natural condition tons] NS raisins Prior year's shipments 309,169 Multiplied by 90 percent 0.90 Equals adjusted base 278,252 Minus carryin inventory 105,430 Plus desirable carryout 60,000 Equals computed NS trade demand 232,822 Computation of Volume Regulation Percentages Section 989.54(b) of the order requires that the Committee announce crop estimates and determine whether volume regulation is warranted for the varietal types for which it computed a trade demand. If the Committee determines that volume regulation is warranted, it must also compute and announce preliminary free and reserve percentages. Section 989.54(c) provides that the Committee may modify the preliminary free and reserve percentages prior to February 15 by announcing interim percentages which release less than the trade demand. Section 989.54(d) requires the Committee to recommend final percentages no later than February 15 which will tend to release the full trade demand. Final percentages are established by USDA through informal rulemaking. The Committee met on October 4 and October 11, 2007, and announced a 2007-08 crop estimate of 273,908 tons for NS raisins pursuant to § 989.54(b). NS raisins are the major varietal type of California raisin. The crop estimate of 273,908 tons is significantly higher than the computed trade demand of 232,822 tons. Thus, the Committee determined that volume regulation for NS raisins was warranted. The Committee therefore announced preliminary volume regulation percentages of 72 percent free and 28 percent reserve for NS raisins. As required by the order, these percentages would release 85 percent of the computed trade demand. The Committee also announced interim volume regulation percentages of 84.75 percent free and 15.25 percent reserve, and recommended final volume regulation percentages of 85 percent free and 15 percent reserve pursuant to § 989.54(d). The Committee has historically recommended interim and final volume regulation percentages later in the season. However, the Committee determined it was in the best interest of producers and handlers to establish interim and final percentages as soon as possible for the 2007-08 crop year. Rains during the harvest period this season while grapes were lying on the ground to dry caused a problem with embedded sand particles on a portion of the crop. To remedy this situation, growers must subject the raisins to a process known as reconditioning to remove the sand in order for the raisins to be acceptable for acquisition by handlers. This process results in additional costs to growers. Establishing interim and final percentages early in the season will allow growers to be paid on a higher percentage of their crop earlier in the season. This will help growers meet the costs of reconditioning, and the reconditioned product will then be suitable for acquisition and processing by handlers. Pursuant to § 989.54(d), the Committee's calculations and determinations to arrive at final percentages for NS raisins are shown in the table below: Final Volume Regulation Percentages [Natural condition tons] NS raisins Trade demand 232,822 Divided by crop estimate 273,908 Equals the free percentage 85.00 100 minus free percentage equals the reserve percentage 15.00 USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (Guidelines) specify that 110 percent of recent years' sales should be made available to primary markets each season for marketing orders utilizing reserve pool authority. This goal is expected to be met for NS raisins for the 2007-08 crop year. Application of the final percentages will make 232,822 tons of raisins available to handlers if the crop estimate is realized. In addition, handlers will be offered additional reserve raisins for sale under the “10 plus 10 offers.” As specified in § 989.54(g), the 10 plus 10 offers are two offers of reserve pool raisins which are made available to handlers during each season. For each such offer, a quantity of reserve raisins equal to 10 percent of the prior year's shipments is made available to handlers for free use. Handlers may sell their 10 plus 10 raisins to any market. Based on 2006-07 NS shipments of 309,169 natural condition tons, 61,833.8 tons should be made available in the 10 plus 10 offers. However, based on the 273,908-ton crop estimate and the 232,822-ton trade demand, only 41,086 tons of 2007-08 reserve raisins would be available. This tonnage combined with the 6,064 tons of remaining 2006-07 reserve raisins should be available for the 10 plus 10 offers (a total of 47,150 tons). Thus, all available reserve pool raisins should be offered to handlers for free use through the 10 plus 10 offers. In addition to these anticipated 10 plus 10 purchases, 14,793 tons of 2006-07 reserve raisins were sold to handlers through 10 plus 10 offers in July 2007 and released to handlers in the 2007-08 crop year (August 2007). Finally, 105,430 tons of free tonnage raisins were carried in to the 2007-08 crop year in handler's inventories. Combining all the raisins available to handlers for use as free tonnage for the 2007-08 crop year (including the 232,822-ton trade demand) results in a total supply of 400,195 tons of natural condition raisins, or 376,195 packed tons. This equates to 129 percent of the 2006-07 shipments of 309,169 natural condition tons or 290,628 packed tons. In addition to the 10 plus 10 offers, § 989.67(j) of the order provides authority for sales of reserve raisins to handlers under certain conditions such as a national emergency, crop failure, change in economic or marketing conditions, or if free tonnage shipments in the current crop year exceed shipments during a comparable period of the prior crop year. Such reserve raisins may be sold by handlers to any market. When implemented, the additional offers of reserve raisins make even more raisins available to primary markets, which is consistent with USDA's Guidelines. Initial Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service

(AMS)has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. There are approximately 23 handlers of California raisins who are subject to regulation under the order and approximately 4,000 raisin producers in the regulated area. Small agricultural firms are defined by the Small Business Administration (SBA)(13 CFR 121.201) as those having annual receipts of less than $6,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. No more than 10 handlers and a majority of producers of California raisins may be classified as small entities. Since 1949, the California raisin industry has operated under a Federal marketing order. The order contains authority to, among other things, limit the portion of a given year's crop that can be marketed freely in any outlet by raisin handlers. This volume regulation mechanism is used to stabilize supplies and prices and strengthen market conditions. If the primary market (the normal domestic market) is over-supplied with raisins, grower prices decline substantially. Pursuant to § 989.54(d) of the order, this rule establishes final volume regulation percentages for 2007-08 crop NS raisins. The volume regulation percentages are 85 percent free and 15 percent reserve. Free tonnage raisins may be sold by handlers to any market. Reserve raisins must be held in a pool for the account of the Committee and are disposed of through certain programs authorized under the order. Volume regulation is warranted this season because the crop estimate of 273,908 tons is significantly higher than the 232,822 ton trade demand. The volume regulation procedures have helped the industry address its marketing problems by keeping supplies in balance with domestic and export market needs, and strengthening market conditions. The volume regulation procedures fully supply the domestic and export markets, provide for market expansion, and help reduce the burden of oversupplies in the domestic market. Raisin grapes are a perennial crop, so production in any year is dependent upon plantings made in earlier years. The sun-drying method of producing raisins involves considerable risk because of variable weather patterns. Even though the product and the industry are viewed as mature, the industry has experienced considerable change over the last several decades. Before the 1975-76 crop year, more than 50 percent of the raisins were packed and sold directly to consumers. Now, about 64 percent of raisins are sold in bulk. This means that raisins are now sold to consumers mostly as an ingredient in another product such as cereal and baked goods. In addition, for a few years in the early 1970's, over 50 percent of the raisin grapes were sold to the wine market for crushing. Since then, the percent of raisin-variety grapes sold to the wine industry has decreased. California's grapes are classified into three groups—table grapes, wine grapes, and raisin-variety grapes. Raisin-variety grapes are the most versatile of the three types. They can be marketed as fresh grapes, crushed for juice in the production of wine or juice concentrate, or dried into raisins. Annual fluctuations in the fresh grape, wine, and concentrate markets, as well as weather-related factors, cause fluctuations in raisin supply. This type of situation introduces a certain amount of variability into the raisin market. Although the size of the crop for raisin-variety grapes may be known, the amount dried for raisins depends on the demand for crushing. This makes the marketing of raisins a more difficult task. These supply fluctuations can result in producer price instability and disorderly market conditions. Volume regulation is helpful to the raisin industry because it lessens the impact of such fluctuations and contributes to orderly marketing. For example, producer prices for NS raisins remained fairly steady between the 1993-94 through the 1997-98 seasons, although production varied. As shown in the table below, during those years, production varied from a low of 272,063 tons in 1996-97 to a high of 387,007 tons in 1993-94. According to Committee data, the total producer return per ton during those years, which includes proceeds from both free tonnage plus reserve pool raisins, has varied from a low of $904.60 in 1993-94 to a high of $1,049.20 in 1996-97. Producer prices for the 1998-99 and 1999-2000 seasons increased significantly due to back-to-back short crops during those years. Record large crops followed and producer prices dropped dramatically for the 2000-01 through 2003-04 crop years, as inventories grew while demand stagnated. However, producer prices were higher for the 2004-05, 2005-06, and 2006-07 crop years, as noted below: Natural Seedless Producer Prices Crop year Deliveries (natural condition tons) Producer prices (per ton) 2006-07 282,999 1 $1,089.00 2005-06 319,126 1 998.25 2004-05 265,262 2 1,210.00 2003-04 296,864 567.00 2002-03 388,010 491.20 2001-02 377,328 650.94 2000-01 432,616 603.36 1999-2000 299,910 1,211.25 1998-99 240,469 2 1,290.00 1997-98 382,448 946.52 1996-97 272,063 1,049.20 1995-96 325,911 1,007.19 1994-95 378,427 928.27 1993-94 387,007 904.60 1 Return-to-date, reserve pool still open. 2 No volume regulation. There are essentially two broad markets for raisins—domestic and export. Domestic shipments have been generally increasing in recent years. Although domestic shipments decreased from a high of 204,805 packed tons during the 1990-91 crop year to a low of 156,325 packed tons in 1999-2000, they increased from 174,117 packed tons during the 2000-01 crop year to 188,944 tons during the 2006-07 crop year. Export shipments ranged from a high of 107,931 packed tons in 1991-92 to a low of 91,599 packed tons in the 1999-2000 crop year. Since that time, export shipments increased to 106,755 tons of raisins during the 2004-05 crop year, but fell to 101,684 tons in 2006-07. The per capita consumption of raisins has declined from 2.07 pounds in 1988 to 1.44 pounds in 2005. This decrease is consistent with the decrease in the per capita consumption of dried fruits in general, which is due to the increasing availability of most types of fresh fruit throughout the year. While the overall demand for raisins has increased in three of the last four years (as reflected in increased commercial shipments), production has been decreasing. Deliveries of NS dried raisins from producers to handlers reached an all-time high of 432,616 tons in the 2000-01 crop year. This large crop was preceded by two short crop years; deliveries were 240,469 tons in 1998-99 and 299,910 tons in 1999-2000. Deliveries for the 2000-01 crop year soared to a record level because of increased bearing acreage and yields. Deliveries for the 2001-02 crop year were at 377,328 tons, 388,010 tons for the 2002-03 crop year, 296,864 for the 2003-04 crop year, and 265,262 tons for the 2004-05 crop year. After three crop years of high production and a large 2001-02 carryin inventory, the industry diverted raisin production to other uses or removed bearing vines. Diversions/removals totaled 38,000 acres in 2001; 27,000 acres in 2002; and 8,000 acres of vines in 2003. These actions resulted in declining deliveries of 296,864 tons for the 2003-04 crop year and 265,262 tons for the 2004-05 crop year. Although deliveries increased in 2005-06 to 319,126 tons, this may have been because fewer growers opted to contract with wineries, as raisin variety grapes crushed in 2005-06 decreased by 161,000 green tons, the equivalent of over 40,000 tons of raisins. In 2006-07, raisin deliveries were again less than 300,000 tons, at 282,999 tons. The order permits the industry to exercise volume regulation provisions, which allow for the establishment of free and reserve percentages, and establishment of a reserve pool. One of the primary purposes of establishing free and reserve percentages is to equilibrate supply and demand. If raisin markets are over-supplied with product, producer prices will decline. Raisins are generally marketed at relatively lower price levels in the more elastic export market than in the more inelastic domestic market. This results in a larger volume of raisins being marketed and enhances producer returns. In addition, this system allows the U.S. raisin industry to be more competitive in export markets. The reserve percentage limits what handlers can market as free tonnage. Based on the 2007-08 crop estimate of 273,908 tons, the 15 percent reserve would limit the total free tonnage to 232,822 natural condition tons (.85 × the 273,908 ton crop). Adding the 232,822 ton figure to the carryin of 105,430 tons, plus 41,086 tons of 2007-08 of reserve raisins anticipated for sale to handlers during the 2006-07 crop year under the 10 plus 10 offers, and 20,857 tons of 2006-07 reserve raisins available to handlers in the 2007-08 crop year results in a total free supply of 400,195 natural condition tons. With volume regulation, producer prices are expected to be higher than without volume regulation. This price increase is beneficial to all producers regardless of size and enhances producers' total revenues in comparison to no volume regulation. Establishing a reserve allows the industry to help stabilize supplies in both domestic and export markets, while improving returns to producers. Free and reserve percentages are established by varietal type, and usually in years when the supply exceeds the trade demand by a large enough margin that the Committee believes volume regulation is necessary to maintain market stability. Accordingly, in assessing whether to apply volume regulation or, as an alternative, not to apply such regulation, it was determined that volume regulation is warranted this season for only one of the nine raisin varietal types defined under the order. The free and reserve percentages established by this rule release the full trade demand and apply uniformly to all handlers in the industry, regardless of size. For NS raisins, with the exception of the 1998-99 and 2004-05 crop years, small and large raisin producers and handlers have been operating under volume regulation percentages every year since 1983-84. There are no known additional costs incurred by small handlers that are not incurred by large handlers. While the level of benefits of this rulemaking are difficult to quantify, the stabilizing effects of the volume regulations impact small and large handlers positively by helping them maintain and expand markets even though raisin supplies fluctuate widely from season to season. Likewise, price stability positively impacts small and large producers by allowing them to better anticipate the revenues their raisins will generate. There are some reporting, recordkeeping and other compliance requirements under the order. The reporting and recordkeeping requirements are necessary for compliance purposes and for developing statistical data for maintenance of the program. The requirements are the same as those applied in past seasons. Thus, this action imposes no additional reporting or recordkeeping requirements on either small or large raisin handlers. The forms require information which is readily available from handler records and which can be provided without data processing equipment or trained statistical staff. The information collection and recordkeeping requirements have been previously approved by the Office of Management and Budget

(OMB)under OMB Control No. 0581-0178, Vegetable and Specialty Crops. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. Further, the Committee's meetings were widely publicized throughout the raisin industry and all interested persons were invited to attend the meetings and participate in the Committee's deliberations. Like all Committee meetings, the August 14, 2007, October 4, 2007, and October 11, 2007, meetings were public meetings and all entities, both large and small, were able to express their views on this issue. Also, the Committee has a number of appointed subcommittees to review certain issues and make recommendations to the Committee. The Committee's Reserve Sales and Marketing Subcommittee met on August 14, 2007, and October 4, 2007, and discussed these issues in detail. Those meetings were also public meetings and both large and small entities were able to participate and express their views. Finally, interested persons are invited to submit comments on this interim final rule, including the regulatory and informational impacts of this action on small businesses. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab.html.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. This rule invites comments on the establishment of final volume regulation percentages for 2007-08 crop NS raisins covered under the order. Any comments received will be considered prior to finalization of this rule. After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act. Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the **Federal Register** because:

(1)The relevant provisions of this part require that the percentages designated herein for the 2007-08 crop year apply to all NS raisins acquired during the crop year;

(2)handlers are aware of this action, which was unanimously recommended at a public meeting, and need no additional time to comply with these percentages; and

(3)this interim final rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule. List of Subjects in 7 CFR Part 989 Grapes, Marketing agreements, Raisins, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, 7 CFR part 989 is amended to read as followed: PART 989—RAISINS PRODUCED FROM GRAPES GROWN IN CALIFORNIA 1. The authority citation for 7 CFR part 989 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. Section 989.257 is revised to read as follows: § 989.257 Final free and reserve percentages.

(a)The final percentages for the respective varietal type(s) of raisins acquired by handlers during the crop year beginning August 1, which shall be free tonnage and reserve tonnage, respectively, are designated as follows: Crop year Varietal type Free percentage Reserve percentage 2003-04 Natural (sun-dried) Seedless 70 30 2005-06 Natural (sun-dried) Seedless 82.50 17.50 2006-07 Natural (sun-dried) Seedless 90 10 2007-08 Natural (sun-dried) Seedless 85 15

(b)The volume regulation percentages apply to acquisitions of the varietal type of raisins for the applicable crop year until the reserve raisins for that crop are disposed of under the marketing order. Dated: February 12, 2008. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E8-2960 Filed 2-15-08; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF HOMELAND SECURITY Office of the Secretary 8 CFR Part 274 19 CFR Part 162 [USCBP-2006-0122] RIN 1651-AA58 Administrative Process for Seizures and Forfeitures Under the Immigration and Nationality Act and Other Authorities AGENCY: Office of the Secretary, DHS. ACTION: Interim rule with request for comments. SUMMARY: This interim rule amends Department of Homeland Security regulations, to consolidate the procedures for administrative seizure and forfeiture process. The interim rule also permits earlier consideration of petitions for the remission of seized assets in cases that would otherwise be brought under the procedures in title 8 of the Code of Federal Regulations. The interim rule also makes technical and conforming changes to update the regulations. DATES: This interim rule is effective February 19, 2008. Written comments must be submitted on or before April 21, 2008. ADDRESSES: You may submit comments, identified by *docket number,* by *one* of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments via docket number USCBP-2006-0122. • Mail: Border Security Regulations Branch, Office of Regulations and Rulings, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229. *Instructions:* All submissions received must include the agency name and document number for this rulemaking. All comments received will be posted without change to *http://www.regulations.gov,* including any personal information provided. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.regulations.gov.* Submitted comments may also be inspected on regular business days between the hours of 9 a.m. and 4:30 p.m. at the Office of Regulations and Rulings, U.S. Customs and Border Protection, 799 9th Street, NW., 5th Floor, Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark, U.S. Customs and Border Protection, at

(202)572-8768. FOR FURTHER INFORMATION CONTACT: Jeremy Baskin, Office of Regulations and Rulings, U.S. Customs and Border Protection

(202)572-8700. SUPPLEMENTARY INFORMATION: Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the interim rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this interim rule. Comments that will provide the most assistance to the Department of Homeland Security

(DHS)in developing these procedures will reference a specific portion of the interim rule, explain the reason for any recommended change, and include data, information, and authority that support such recommended change. Background On November 25, 2002, the President signed into law the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135 (HSA). Accordingly, as of March 1, 2003, the former Immigration and Nationalization Service

(INS)of the Department of Justice and the former U.S. Customs Service of the Department of the Treasury were transferred to DHS and reorganized to become U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS). After passage of the HSA, both CBP and ICE retained authority to perform asset seizures and forfeitures under the provisions of 8 CFR part 274 and 19 CFR parts 162 and 171. DHS, for the purpose of improved efficiency, has consolidated the processing of asset forfeitures into CBP's operations. The regulations in Titles 8 and 19, however, currently provide two different procedures. This interim rule consolidates the procedures for administrative seizure and forfeiture process by altering the text of 8 CFR 274.1 to refer to 19 CFR parts 162 and 171. This rule also makes technical conforming changes to update references from INS and U.S. Customs Service to CBP and ICE where applicable. Interim Rule Changes Pursuant to the provisions of section 618 of the Tariff Act of 1930, as amended (19 U.S.C. 1618), petitions for remission of forfeitures were accepted by the former U.S. Customs Service, and now accepted by CBP, prior to initiation of any administrative or judicial forfeiture process. Under the regulations adopted under section 274(b) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1324(b) (INA)), the remission or mitigation of such forfeitures could occur only after completion of the forfeiture process. No statute, however, requires this restriction. Under this interim rule, the procedures previously used for immigration-related forfeitures will be eliminated and all asset forfeiture proceedings will be conducted under a consolidated procedure. This interim rule revises 8 CFR part 274 in its entirety to bring seizures and forfeitures effected under section 274(b) of the INA, as amended, and other forfeiture authorities, into conformity with procedures under 19 CFR parts 162 and 171. This change permits CBP to entertain petitions for remission and return of seized property prior to completing the forfeiture process, whether the seizure was effected under the customs laws or the immigration laws, and whether the seizure was made by CBP or ICE. Accordingly, 8 CFR part 274 is amended to reference Title 19 administrative seizure and forfeiture processes. This is the only significant difference between the provisions and DHS through this interim rule adopts the procedure that provides greater flexibility and is more favorable to petitioners for remission. Other Changes The provisions of current 19 CFR 162.21 reference the former U.S. Customs Service and U.S. Customs Officers. The interim rule updates these references to reflect U.S. Customs and Border Protection and CBP Officers as applicable. Currently, 19 CFR 162.22(d) references retention of vessels or vehicles pending penalty payment and specifically references section 460 of the Tariff Act of 1930, as amended (19 U.S.C. 1460). Section 460 of the Tariff Act of 1930 was repealed by Public Law 99-570, title III, section 3115(b), Oct. 27, 1986, 100 Stat. 3207-82. Accordingly, this interim rule removes 19 CFR 162.22(d) and redesignates paragraph

(e)as paragraph (d). This rule also updates certain delegations of authority to reflect the current organizational structures. Title 19 CFR 162.92(d)(1) currently empowers the Customs Assistant Commissioner, Investigations, or his designee, to extend the period for sending notices for any seizure under the Civil Asset Forfeiture Reform Act of 2000, Public Law 106-185, 114 Stat. 202, (CAFRA). Currently, the Assistant Commissioner, Investigations, is the official designated by CBP to grant time extensions for sending notices of seizure as authorized by 18 U.S.C. 983(a)(1)(B). 67 FR 9188 (Feb. 28, 2002). Inasmuch as a reorganization plan under the HSA moved the investigative functions previously performed by Customs agents to ICE, DHS is changing the regulation to reflect this change in authority. In addition, an official within CBP must retain the authority for certain seizures effected by CBP officers or Border Patrol agents. Accordingly, this interim rule amends 19 CFR 162.92(d)(1) to designate the Assistant Secretary of ICE, or his or her designee, and the Commissioner of CBP, or his or her designee, as the officials authorized to grant such an extension. Administrative Procedure Act This rule is procedural in nature and does not alter the substantive rights of the affected parties. Therefore, this rule is exempt from the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553(b)(A)). In addition, the delayed effective date requirement of 5 U.S.C. 553(d) does not apply to this rule. DHS, however, is interested in public comments on this rule and will consider all timely comments in the preparation of a final rule. The interim rule may benefit entities whose property is seized under 8 CFR part 274. Under the interim regulations, entities whose property is seized under 8 CFR part 274 may take advantage of pre-forfeiture administrative processing and request return of their property prior to the conclusion of forfeiture processing. Prior to this interim rule, owners of property seized under 8 CFR part 274 were required to wait for their petitions to be acted upon until after forfeiture processing was complete. There will be no increased costs to either private companies or individuals as a result of this interim rule. The interim rule may also yield cost savings for the government if seized items can leave government storage areas more quickly under the earlier petitioning provision. Regulatory Requirements Executive Order 12866 This interim rule is not a significant regulatory action under Executive Order 12866. Regulatory Flexibility Act The Regulatory Flexibility Act

(RFA)(5 U.S.C. 603(b)), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required “to publish a general notice of proposed rulemaking for any proposed rule.” Because this rule is being issued as an interim rule, on the grounds set forth above, a regulatory flexibility analysis is not required under the RFA. Paperwork Reduction Act DHS has determined that the collection of information required by this interim rule falls under the “administrative exception” to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, *et seq.* ). The “administrative exception,” applies because any such collection is made during the conduct of administrative action taken by an agency against specific individuals or entities. 5 CFR 1320.4(a)(2). List of Subjects 8 CFR Part 274 Administrative practice and procedure, Seizures and forfeitures, Conveyances. 19 CFR Part 162 Administrative practice and procedure, Customs duties and inspection, Law enforcement, Penalties, Prohibited merchandise, Reporting and recordkeeping requirements, Seizures and forfeitures. Amendments to Title 8 of the Code of Federal Regulations For the reasons stated above, 8 CFR part 274 is amended as set forth below. PART 274—SEIZURE AND FORFEITURE OF CONVEYANCES 1. The authority citation for part 274 is revised to read as follows: Authority: 8 U.S.C. 1103, 1324(b); 18 U.S.C. 983, 19 U.S.C. 66, 1600, 1618, 1619, 1624; 22 U.S.C. 401; 31 U.S.C. 5321; 49 U.S.C. 80304. 2. Section 274.1 is revised to read as follows: § 274.1 Seizure and forfeiture authority. Any officer of Customs and Border Protection or Immigration and Customs Enforcement may seize and forfeit any property that has been or is being used in the commission of a violation of any statutory authority involving the unlawful introduction of aliens, contraband or proceeds of such introduction, pursuant to, but not limited to, section 274(a) of the Act (8 U.S.C. 1324(a)). All seizures and forfeitures in such cases will be administered in accordance with 19 CFR parts 162 and 171. 3. Section 274.2 is revised to read as follows: § 274.2 Delegation of authority. All powers provided to Fines, Penalties and Forfeitures Officers in 19 CFR parts 162 and 171 are provided to the Chief, Office of Border Patrol or his designees, for purposes of administering seizures and forfeitures made by Border Patrol Officers. 4. Sections 274.3 through 274.20 are removed. Amendments to Title 19 of the Code of Federal Regulations For the reasons set forth above, 19 CFR part 162 is amended as set forth below. PART 162—INSPECTION, SEARCH, AND SEIZURE 1. The general authority citation for part 162 and specific authority citation for § 162.22 is revised, and the specific authority citations for §§ 162.21 and 162.91 through 162.96 continue to read as follows: Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1592, 1593a, 1624, 6 U.S.C. 101, 8 U.S.C. 1324(b). Section 162.21 also issued under 19 U.S.C. 482, 1581, 1582, 1602; Section 162.22 also issued under 18 U.S.C. 546; 19 U.S.C. 1459, 1594, 1595a, 1701, 1703-1708; Sections 162.91 through 162.96 also issued under 18 U.S.C. 983. § 162.21 [Amended] 2. Section 162.21(a) is amended by removing the phrase “the Customs Service” and replacing it with the phrase “Customs and Border Protection or Immigration and Customs Enforcement”. § 162.22 [Amended] 3. In section 162.22: a. The last sentence of paragraph

(a)is amended by removing the period at the end of the last sentence and adding the phrase “and section 274(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1324(b)(1)).” b. Paragraph

(d)is removed and current paragraph

(e)is redesignated as paragraph (d). § 162.91 [Amended] 4. The first sentence of section 162.91 is amended by removing the term “Customs” and replacing it with the term “Customs and Border Protection or Immigration and Customs Enforcement”. § 162.92 [Amended] 5. In section 162.92: a. The heading of paragraph

(d)is amended by removing the phrase “by Customs”. b. Paragraph (d)(1) is amended by removing the phrase “Assistant Commissioner, Investigations, or his designee” and replacing it with the term “Assistant Secretary, Immigration and Customs Enforcement or the Commissioner of Customs and Border Protection for cases within their respective agencies, or their successors or designees”. Date: January 28, 2008. Michael Chertoff, Secretary. [FR Doc. E8-2965 Filed 2-15-08; 8:45 am] BILLING CODE 9111-14-P DEPARTMENT OF THE TREASURY Comptroller of the Currency 12 CFR Part 8 [Docket No. OCC-2008-0001] RIN 1557-AD06 Assessment of Fees AGENCY: Office of the Comptroller of the Currency, Treasury. ACTION: Interim final rule with request for comment. SUMMARY: The Office of the Comptroller of the Currency

(OCC)is amending its assessment regulation to add two new asset-size categories to the table in 12 CFR 8.2(a) used to calculate each national bank's semiannual assessment. The addition of these categories is warranted to take account of significant structural changes in the national banking system since 1992, when the table was last revised, and will enable the OCC to realign our assessments to better reflect industry structure and OCC's corresponding expenses of operations. The OCC is issuing this rule as an interim rule with a request for comment so that such a realignment can occur promptly. DATES: *Effective Date:* This rule is effective on February 19, 2008. *Comment Date:* Comments must be received by March 20, 2008. ADDRESSES: Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments by e-mail, if possible. Please use the title “Assessment of Fees” to facilitate the organization and distribution of the comments. You may submit comments by any of the following methods: • *Federal eRulemaking Portal—“Regulations.gov”* : Go to *http://www.regulations.gov* , under the “More Search Options” tab click next to the “Advanced Docket Search” option where indicated, select “Comptroller of the Currency” from the agency drop-down menu, then click “Submit.” In the “Docket ID” column, select “OCC-2008-0001” to submit or view public comments and to view supporting and related materials for this interim final rule. The “How to Use This Site” link on the Regulations.gov home page provides information on using Regulations.gov, including instructions for submitting or viewing public comments, viewing other supporting and related materials, and viewing the docket after the close of the comment period. • *E-mail:* *regs.comments@occ.treas.gov* . • *Mail:* Office of the Comptroller of the Currency, 250 E Street, SW., Mail Stop 1-5, Washington, DC 20219. • *Fax:*

(202)874-4448. • *Hand Delivery/Courier:* 250 E Street, SW., *Attn:* Public Information Room, Mail Stop 1-5, Washington, DC 20219. *Instructions:* You must include “OCC” as the agency name and “Docket Number OCC-2008-0001” in your comment. In general, OCC will enter all comments received into the docket and publish them on the Regulations.gov Web site without change, including any business or personal information that you provide such as name and address information, e-mail addresses, or phone numbers. Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not enclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. You may review comments and other related materials that pertain to this interim final rule by any of the following methods: • *Viewing Comments Electronically:* Go to *http://www.regulations.gov* , under the “More Search Options” tab click next to the “Advanced Document Search” option where indicated, select “Comptroller of the Currency” from the agency drop-down menu, then click “Submit.” In the “Docket ID” column, select “OCC-2008-0001” to view public comments for this rulemaking action. • *Viewing Comments Personally:* You may personally inspect and photocopy comments at the OCC's Public Information Room, 250 E Street, SW., Washington, DC. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling

(202)874-5043. Upon arrival, visitors will be required to present valid government-issued photo identification and submit to security screening in order to inspect and photocopy comments. • *Docket:* You may also view or request available background documents and project summaries using the methods described above. FOR FURTHER INFORMATION CONTACT: Mitchell Plave, Counsel, Legislative and Regulatory Activities Division,

(202)874-5090; Stuart Feldstein, Assistant Director, Legislative and Regulatory Activities Division,

(202)874-5090; or Colette Baylson, Accounting Operations Manager, Financial Management,

(202)874-4403, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219. SUPPLEMENTARY INFORMATION: Background The National Bank Act authorizes the OCC to fund the expenses of its operations through assessments on national banks. 1 Under this authority, the OCC collects semiannual assessments from national banks in accordance with part 8 of our regulations and with the OCC's Notice of the Comptroller of the Currency Fees (Notice of Fees). 2 Part 8 currently establishes ten categories, or brackets, each of which comprises a range of size values for a national bank's total assets. Each national bank's assessment is the sum of a base amount, which is the same for every national bank in that asset-size bracket, plus a marginal amount, which is computed by applying a marginal assessment rate to the amount of total assets in excess of the lower boundary of the asset-size bracket. 3 The marginal assessment rate declines as asset size increases, reflecting economies of scale in bank examination and supervision, which factor into the OCC's overall cost of operations. Both the base amounts and the marginal rates applicable to each asset-size bracket are published at least once a year in the OCC's Notice of Fees. 4 1 12 U.S.C. 482. 2 Under part 8, the OCC also collects assessments from Federal branches and Federal agencies. The changes provided for in this interim rule will also apply to assessments of Federal branches and Federal agencies. 3 *See* 12 CFR 8.2(a) (listing the asset-size brackets). 4 *See, e.g.* , OCC Bulletin 2007-46, “Notice of the Comptroller of the Currency Fees for Year 2008” (December 1, 2007). The OCC's regulations provide for the annual publication of the Notice of Fees and also authorize the publication of interim, or amended, notices of fees “from time to time throughout the year as necessary.” 12 CFR 8.8. The current asset-size brackets, which were adopted in 1992 5 no longer reflect the structure and distribution of assets in the national banking system as a whole. For example, since 1992, there has been a significant increase not only in the amount of assets held by the largest banks, but also in the assets held by national banks in other asset-size brackets, resulting in a general upward shift in the distribution of the population of national banks on the asset-size bracket table in 12 CFR 8.2(a). The growth in the average assets held by national banks reflect the consolidation in the banking industry that has occurred since 1992. 5 57 FR 22413 (May 28, 1992). Given these developments, the existing asset-size brackets do not reflect the structure of the national banking system. Updating the asset-size brackets therefore enables the OCC to adjust the assessment framework to better reflect industry structure and the OCC's corresponding expenses of operations. Description of the Interim Rule For these reasons, the interim rule expands the number of asset-size assessment brackets in the table at 12 CFR 8.2(a) by revising the current top bracket, presently $40 billion and above, to cover banks with assets between $40 billion and $250 billion. In addition, the interim rule creates a new top bracket that will apply to banks with assets in excess of $250 billion. The OCC also is making a conforming change to delete the word “ten” from the description of the asset-size brackets in § 8.2(a)(1) of the assessment rules since it no longer accurately describes the number of brackets. Effective Date; Solicitation of Comments This interim rule will become effective immediately upon publication in the **Federal Register** . Pursuant to the Administrative Procedure Act, at 5 U.S.C. 553(b)(B), notice and an opportunity for public comment are not required prior to the issuance of a final rule if an agency, for good cause, finds that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 6 Similarly, there is good cause to publish a rule with an immediate effective date if the rule “grants or recognizes an exemption or relieves a restriction.” 5 U.S.C. 553(d)(1) 553(d)(3). 6 5 U.S.C. 553(b)(B). As we have described, the asset brackets in the assessments table in 12 CFR 8.2(a), which were last revised in 1992, do not reflect the structure of the national banking industry, and therefore the framework for assessing national banks for the expenses of OCC's operations is no longer current. Completion of notice and comment rulemaking procedures prior to issuing this interim rule would require delaying implementation of the new asset brackets beyond the next scheduled assessment date, which is March 31, 2008. Such a delay is inconsistent with the public interest since it would result in national banks' continued payment of assessments under a framework that the OCC has determined is no longer representative of current industry structure and the OCC's corresponding expenses of operation. Issuance of this interim rule furthers the public interest and reduces regulatory burden because it will allow the OCC, as appropriate, to issue an amended Notice of Fees that better reflects the structure of the national banking system and allocates the OCC's expenses of operation on that basis. For the same reasons, the OCC finds good cause to publish this rule with an immediate effective date. *See* 5 U.S.C. 553(d)(1), 553(d)(3). Although notice and comment are not required prior to the effective date of this rule, the OCC invites comments on all aspects of this interim rule and intends to revise the interim rule if necessary or appropriate in light of the comments received. Solicitation of Comments on Use of Plain Language The OCC also requests comment on whether the interim rule is written clearly and is easy to understand. On June 1, 1998, the President issued a memorandum directing each agency in the Executive branch to write its rules in plain language. This directive applies to all new proposed and interim rulemaking documents issued on or after January 1, 1999. In addition, Public Law 106-102 requires each Federal agency to use plain language in all proposed and interim rules published after January 1, 2000. The OCC invites comments on how to make this rule clearer. For example, you may wish to discuss:

(1)Whether we have organized the material to suit your needs;

(2)Whether the requirements of the rule are clear; or

(3)Whether there is something else we could do to make the rule easier to understand. Regulatory Flexibility Act Analysis The Regulatory Flexibility Act (Pub. L. 96-354, Sept. 19, 1980)

(RFA)applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). 7 Because the OCC has determined for good cause that the Administrative Procedure Act does not require public notice and comment on this interim rule, we are not publishing a general notice of proposed rulemaking. Thus, the RFA does not apply to this interim rule. 7 5 U.S.C. 601(2). Executive Order 12866 The OCC has determined that this interim rule is not a significant regulatory action under Executive Order 12866. Unfunded Mandates Reform Act of 1995 Determinations Section 202 of the Unfunded Mandates Reform Act of 1995 8 (Unfunded Mandates Act) requires that an agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires the agency to identify and consider a reasonable number of regulatory alternatives before promulgating the rule. The OCC has determined that this interim rule will not result in expenditures by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, the OCC has not prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered. 8 2 U.S.C. 1532. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR Part 1320 Appendix A.1), we have reviewed the interim rule to assess any information collections. There are no collections of information as defined by the Paperwork Reduction Act in the interim rule. Lists of Subjects in 12 CFR Part 8 Assessment of fees. Authority and Issuance For the reasons set forth in the preamble, part 8 of chapter I of title 12 of the Code of Federal Regulations is amended as follows: PART 8—ASSESSMENT OF FEES 1. The authority citation for part 8 continues to read as follows: Authority: 12 U.S.C. 93a, 481, 482, 1867, 3102, and 3108; and 15 U.S.C. 78c and 78l. 2. Section 8.2 is amended by: a. Revising paragraph

(a)introductory text, including the table; and b. Removing the word “ten” in paragraph (a)(1) in the first sentence, to read as follows: § 8.2 Semiannual assessment.

(a)Each national bank shall pay to the Comptroller of the Currency a semiannual assessment fee, due by March 31 and September 30 of each year, for the six month period beginning on January 1 and July 1 before each payment date. The Comptroller of the Currency will calculate the amount due under this section and provide a notice of assessments to each national bank no later than 7 business days prior to March 31 and September 30 of each year. The semiannual assessment will be calculated as follows: If the bank's total assets (consolidated domestic and foreign subsidiaries) are: Over— But not over— The semiannual assessment is: This amount—base amount Plus marginal rates Of excess over— Column A Column B Column E Column C Column D Million Million Million $0 $2 $X1 0 2 20 X2 Y1 $2 20 100 X3 Y2 20 100 200 X4 Y3 100 200 1,000 X5 Y4 200 1,000 2,000 X6 Y5 1,000 2,000 6,000 X7 Y6 2,000 6,000 20,000 X8 Y7 6,000 20,000 40,000 X9 Y8 20,000 40,000 250,000 X10 Y9 40,000 250,000 X11 Y10 250,000 Dated: February 11, 2008. John C. Dugan, Comptroller of the Currency. [FR Doc. E8-3004 Filed 2-15-08; 8:45 am] BILLING CODE 4810-33-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. 384; Notice No. 25-370-SC] Special Conditions: Boeing Model 787 Series Airplanes; Seats With Non-Traditional, Large, Non-Metallic Panels AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions. SUMMARY: These special conditions are for Boeing Model 787 series airplanes. These airplanes will have a novel or unusual design feature(s) associated with seats that include non-traditional, large, non-metallic panels that would affect survivability during a post-crash fire event. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: The effective date of these special conditions is March 20, 2008. FOR FURTHER INFORMATION CONTACT: Alan Sinclair, FAA, Airframe/Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-2195; facsimile

(425)227-1232; electronic mail *alan.sinclair@faa.gov* . SUPPLEMENTARY INFORMATION: Change to Special Condition Number 4 The FAA previously notified the public of our intent to issue special conditions for seats with non-traditional, large, non-metallic panels on various airplane makes and models. Notice of Proposed Special Conditions No. 25-06-13-C, applicable to Boeing Model 737 series airplanes, was published in the **Federal Register** on November 9, 2006 (71 FR 65761). The special conditions were issued on June 29, 2007 (Docket No. NM 359, Special Conditions No. 25-358-SC), published in the **Federal Register** on July 10, 2007 (72 FR 37425), and became effective on August 9, 2007. Both the Notice and the Final Special Conditions contained these words: We anticipate that seats with non-traditional, large, non-metallic panels will be installed in other makes and models of airplanes. We have made the determination to require special conditions for all applications requesting the installation of seats with non-traditional, large, non-metallic panels until the airworthiness requirements can be revised to address this issue. Having the same standards across the range of airplane makes and models will ensure a level playing field for the aviation industry. Special condition number 4 in the 737 special conditions limits the applicability of the special conditions to new seat certification programs applied for after the effective date of the special conditions. In these special conditions the FAA changed the applicability to make the special conditions applicable to new seat certification programs that are approved after the effective date of the special conditions. This change could affect pending as well as future project applications. The rationale behind this change is that these seat installations affect survivability during a post-crash fire event and should be implemented as soon as possible. Additionally, the public has been previously notified of the FAA's intent to issue similar special conditions on other airplane makes and models. Background On August 8, 2005, Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124, applied for a type certificate for a new Boeing Model 787 airplane. The Boeing Model 787 series airplanes will be all new, twin-engine, jet transport airplanes with a two-aisle cabin. The maximum takeoff weight will be 476,000 pounds, with a maximum passenger count of 381 passengers. The applicable regulations to airplanes currently approved under part 25 do not require seats to meet the more stringent flammability standards required of large, non-metallic panels in the cabin interior. At the time the applicable rules were written, seats were designed with a metal frame covered by fabric, not with large, non-metallic panels. Seats also met the then recently adopted standards for flammability of seat cushions. With the seat design being mostly fabric and metal, the contribution to a fire in the cabin had been minimized and was not considered a threat. For these reasons, seats did not need to be tested to heat release and smoke emission requirements. Seat designs have now evolved to occasionally include non-traditional, large, non-metallic panels. Taken in total, the surface area of these panels is on the same order as the sidewall and overhead stowage bin interior panels. To provide the level of passenger protection intended by the airworthiness standards, these non-traditional, large, non-metallic panels in the cabin must meet the standards of Title 14 Code of Federal Regulations (CFR), part 25, Appendix F, parts IV and V, heat release and smoke emission requirements. Type Certification Basis Under provisions of 14 CFR 21.17, Boeing must show that Model 787-8 airplanes (hereafter referred to as “the Model 787”) meet the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-117, except §§ 25.809(a) and 25.812, which will remain at Amendment 25-115. If the Administrator finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for the Model 787 airplane because of a novel or unusual design feature, special conditions are prescribed under provisions of 14 CFR 21.16. In addition to the applicable airworthiness regulations and special conditions, the Model 787 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of part 36. In addition, the FAA must issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.” Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.17(a)(2). Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101. Novel or Unusual Design Features The Boeing Model 787 series airplanes will incorporate the following novel or unusual design features: These models offer interior arrangements that include passenger seats that incorporate non-traditional, large, non-metallic panels in lieu of the traditional metal frame covered by fabric. The flammability properties of these panels have been shown to significantly affect the survivability of the cabin in the case of fire. These seats are considered a novel design for transport category airplanes that include Amendment 25-61 and Amendment 25-66 in the certification basis, and were not considered when those airworthiness standards were established. The existing regulations do not provide adequate or appropriate safety standards for seat designs that incorporate non-traditional, large, non-metallic panels in their designs. In order to provide a level of safety that is equivalent to that afforded to the balance of the cabin, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement § 25.853. The requirements contained in these special conditions consist of applying the identical test conditions required of all other large panels in the cabin, to seats with non-traditional, large, non-metallic panels. Definition of “Non-Traditional, Large, Non-Metallic Panel'' A non-traditional, large, non-metallic panel, in this case, is defined as a panel with exposed-surface areas greater than 1.5 square feet installed per seat place. The panel may consist of either a single component or multiple components in a concentrated area. Examples of parts of the seat where these non-traditional panels are installed include, but are not limited to: seat backs, bottoms and leg/foot rests, kick panels, back shells, credenzas and associated furniture. Examples of traditional exempted parts of the seat include: arm caps, armrest close-outs such as end bays and armrest-styled center consoles, food trays, video monitors, and shrouds. Clarification of “Exposed'' “Exposed” is considered to include panels that are directly exposed to the passenger cabin in the traditional sense, and panels that are enveloped, such as by a dress cover. Traditional fabrics or leathers currently used on seats are excluded from these special conditions. These materials must still comply with § 25.853(a) and § 25.853(c) if used as a covering for a seat cushion, or § 25.853(a) if installed elsewhere on the seat. Non-traditional, large, non-metallic panels covered with traditional fabrics or leathers will be tested without their coverings or covering attachments. Discussion In the early 1980s the FAA conducted extensive research on the effects of post-crash flammability in the passenger cabin. As a result of this research and service experience, we adopted new standards for interior surfaces associated with large surface area parts. Specifically, the rules require measurement of heat release and smoke emission (part 25, Appendix F, parts IV and V) for the affected parts. Heat release has been shown to have a direct correlation with post-crash fire survival time. Materials that comply with the standards (i.e., § 25.853 entitled “Compartment interiors” as amended by Amendment 25-61 and Amendment 25-66) extend survival time by approximately 2 minutes over materials that do not comply. At the time these standards were written the potential application of the requirements of heat release and smoke emission to seats was explored. The seat frame itself was not a concern because it was primarily made of aluminum and there were only small amounts of non- metallic materials. It was determined that the overall effect on survivability was negligible, whether or not the food trays met the heat release and smoke requirements. The requirements therefore did not address seats. The preambles to both the Notice of Proposed Rule Making (NPRM), Notice No. 85-10 (50 FR 15038, April 16, 1985) and the Final Rule at Amendment 25-61 (51 FR 26206, July 21, 1986), specifically note that seats were excluded “because the recently-adopted standards for flammability of seat cushions will greatly inhibit involvement of the seats.” Subsequently, the Final Rule at Amendment 25-83 (60 FR 6615, March 6, 1995) clarified the definition of minimum panel size: “It is not possible to cite a specific size that will apply in all installations; however, as a general rule, components with exposed-surface areas of one square foot or less may be considered small enough that they do not have to meet the new standards. Components with exposed-surface areas greater than two square feet may be considered large enough that they do have to meet the new standards. Those with exposed-surface areas greater than one square foot, but less than two square feet, must be considered in conjunction with the areas of the cabin in which they are installed before a determination could be made.” In the late 1990s, the FAA issued Policy Memorandum 97-112-39, *Guidance for Flammability Testing of Seat/Console Installations* , October 17, 1997 ( *http://rgl.faa.gov* ). That memo was issued when it became clear that seat designs were evolving to include large, non-metallic panels with surface areas that would impact survivability during a cabin fire event, comparable to partitions or galleys. The memo noted that large surface area panels must comply with heat release and smoke emission requirements, even if they were attached to a seat. If the FAA had not issued such policy, seat designs could have been viewed as a loophole to the airworthiness standards that would result in an unacceptable decrease in survivability during a cabin fire event. In October of 2004, an issue was raised regarding the appropriate flammability standards for passenger seats that incorporated non-traditional, large, non-metallic panels in lieu of the traditional metal covered by fabric. The Seattle Aircraft Certification Office and Transport Standards Staff reviewed this design and determined that it represented the kind and quantity of material that should be required to pass the heat release and smoke emissions requirements. We have determined that special conditions would be promulgated to apply the standards defined in 14 CFR 25.853(d) to seats with large, non-metallic panels in their design. Discussion of Comments Notice of proposed special conditions No. 25-07-16-SC, pertaining to Boeing Model 787 series airplanes, was published in the **Federal Register** on October 29, 2007 (72 FR 61082). We only received comments from Boeing. Change “Approved” to “Applied for” in Special Condition Number 4 Boeing requested that the word “approved” in the following sentence be changed to “applied for.” Only airplanes associated with new seat certification programs approved after the effective date of these special conditions will be affected by the requirements in these special conditions. Boeing also requested clarification regarding what is meant by “approved.” *FAA Response:* Special condition number 4 was revised from what was issued for the final special conditions applicable to Model 737 airplanes. The Model 737 final special conditions contained the phrase “applied for.” That phrase was changed to “approved” in these final special conditions to ensure that these special conditions are applicable to as many Model 787 certification projects as possible. The 737 special conditions, in effect, notified Boeing that the flammability issue regarding seats with non-traditional, large, non-metallic panels must be addressed. The FAA discussed this issue with Boeing and stated that all subsequent special conditions related to this matter would be based on the project approval date. To clarify what we mean by the approval date, the approval date is the date of approval of the affected amended type certificate or supplemental type certificate. These Special Conditions Are Not Being Applied to Other Airplane Manufacturers Boeing did not request a specific change in this comment, but did draw attention to the fact that the standards promulgated by these special conditions have not yet achieved a “level playing field for the aviation industry.” Boeing stated that it agreed with the FAA's goals to ensure that all parties in the industry are treated fairly, and the new standards are applied uniformly. However, Boeing noted that it is not apparent that those goals have yet been met. *FAA Response:* As projects are identified that include seats with large, non-metallic panels, the FAA will issue special conditions for the affected airplane makes and models. We are currently working on several other special condition packages for airplanes produced by other manufacturers. In addition, we are considering rulemaking to revise § 25.853 to address this issue. These special conditions are adopted as proposed. Applicability As discussed above, these special conditions are applicable to Boeing Model 787 series airplanes. Because the heat release and smoke testing requirements of § 25.853 are part of the type certification basis for the Model 787, these special conditions are applicable to all Model 787 series airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well. Conclusion This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 787 series airplanes. 1. Except as provided in paragraph 3 of these special conditions, compliance with Title 14 CFR part 25, Appendix F, parts IV and V, heat release and smoke emission, is required for seats that incorporate non-traditional, large, non-metallic panels that may either be a single component or multiple components in a concentrated area in their design. 2. The applicant may designate up to and including 1.5 square feet of non-traditional, non-metallic panel material per seat place that does not have to comply with special condition Number 1, above. A triple seat assembly may have a total of 4.5 square feet excluded on any portion of the assembly (e.g., outboard seat place 1 square foot, middle 1 square foot, and inboard 2.5 square feet). 3. Seats do not have to meet the test requirements of Title 14 CFR part 25, Appendix F, parts IV and V, when installed in compartments that are not otherwise required to meet these requirements. Examples include: a. Airplanes with passenger capacities of 19 or less, and b. Airplanes exempted from § 25.853, Amendment 25-61 or later. 4. Only airplanes associated with new seat certification programs approved after the effective date of these special conditions will be affected by the requirements in these special conditions. Previously certificated interiors on the existing airplane fleet and follow-on deliveries of airplanes with previously certificated interiors are not affected. Issued in Renton, Washington, on February 7, 2008. Kevin Hull, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. 08-701 Filed 2-15-08; 8:45 am]

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