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Code · REGISTER · 2008-02-26 · PROPOSED RULES · Agricultural Agricultural Marketing Service PROPOSED RULES United States Standards for Grades of Table Grapes (European or Vinifera Type), 10185-10187 08-848 Agriculture Agriculture Department See Agr · Unknown

Unknown. Final rule with request for comments

34,667 words·~158 min read·/register/2008/02/26/08-835

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

--- schema: federal-register doc_type: fedreg source_file: FR-2008-02-26.xml --- 73 38 Tuesday, February 26, 2008 Contents Agricultural Agricultural Marketing Service PROPOSED RULES United States Standards for Grades of Table Grapes (European or Vinifera Type), 10185-10187 08-848 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See National Agricultural Statistics Service See Rural Telephone Bank Animal Animal and Plant Health Inspection Service RULES Brucellosis in Cattle;
Research Facilities, 10137-10138 E8-3591 Centers Centers for Disease Control and Prevention NOTICES Advisory Committee to the Director; Charter Renewal, 10248 E8-3574 Meetings: Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 10248-10249 E8-3569 E8-3577 E8-3589 Centers Centers for Medicare & Medicaid Services NOTICES Privacy Act; Systems of Records, 10249-10260 E8-3562 E8-3564 Children Children and Families Administration See Refugee Resettlement Office RULES Chafee National Youth in Transition Database, 10338-10378 E8-3050 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration CITA Committee for the Implementation of Textile Agreements NOTICES Request for Public Comment on Commercial Availability Request Under the U.S.
Australia Free Trade Agreement, 10227-10228 E8-3620 Copyright Copyright Office, Library of Congress NOTICES Review of Copyright Royalty Judges Determination, 10290 E8-3619 Defense Defense Department See Navy Department NOTICES Disestablishment of Department of Defense Federal Advisory Committees, 10228 E8-3605 Establishment of Department of Defense Federal Advisory Committees, 10228-10229 E8-3602 Renewal of Department of Defense Federal Advisory Committees, 10229-10232 E8-3482 E8-3483 E8-3484 E8-3485 Education Education Department NOTICES Federal Student Aid Programs, 10233-10235 E8-3616 Employment Employment and Training Administration NOTICES Labor Certification Process for the Temporary Employment of Aliens in Agriculture and Logging in the U.S.: 2008 Adverse Effect Wage Rates, etc., 10288-10290 E8-3567 Energy Energy Department See Federal Energy Regulatory Commission EPA Environmental Protection Agency RULES Approval and Promulgation of State Implementation Plans:
Montana; Administrative Rules Revisions and Interstate Transport of Pollution, 10150-10154 E8-3338 PROPOSED RULES Approval and Promulgation of Air Quality Implementation Plans: Virginia; 8-Hour Ozone Maintenance Plan, White Top Mountain, Smyth County, VA 1-Hour Ozone Nonattainment Area, 10201-10203 E8-3358 Approval and Promulgation of State Implementation Plans: Montana; Interstate Transport of Pollution, New Definitions of PM and PM 2.5, 10203-10204 E8-3339 Hazardous Waste Management System;
Modification of the Hazardous Waste Manifest System, 10204-10210 E8-3615 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10242-10243 E8-3611 Meetings: Clean Air Scientific Advisory Committee, 10243-10244 E8-3613 Executive Executive Office for Immigration Review RULES Inflation Adjustment for Civil Monetary Penalties Under the Immigration and Nationality Act, 10130-10137 E8-3320 Executive Executive Office of the President See Presidential Documents Federal Accounting Federal Accounting Standards Advisory Board NOTICES Statement of Federal Finincial Accounting Concepts, 10244 08-837 FAA Federal Aviation Administration RULES Airworthiness Directives:
Dassault Model Falcon 2000, Falcon 2000EX, Mystere Falcon 900, Falcon 900EX, Fan Jet Falcon, Mystere-Falcon 50, Mystere Falcon 20, Mystere-Falcon 200, etc., 10139-10140 E8-3403 Operation of Civil Aircraft of U.S. Registry Outside of the United States, 10140-10143 E8-3583 PROPOSED RULES Airworthiness Directives: Przedsiebiorstwo Doswiadczalno-Produkcyjne Szybownictwa “PZL-Bielsko” Model SZD-50-3 “Puchacz” Gliders, 10188-10190 E8-3579 NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 10320-10321 08-830 08-831 Meetings: Executive Committee of the Aviation Rulemaking Advisory Committee, 10321 E8-3587 Petition for Exemption; Summary of Petition Received, 10322 E8-3586 Federal Emergency Federal Emergency Management Agency RULES Suspension of Community Eligibility, 10155-10157 E8-3628 Federal Energy Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10235-10237 E8-3548 E8-3566 Amendment:
Rockies Express Pipeline LLC, 10238 E8-3551 Amendment of License and Soliciting Comments, Motions to Intervene, and Protests: Brazos River Authority, 10237-10238 E8-3549 Application: Tennessee Gas Pipeline Co., 10239-10240 E8-3547 Application for Temporary Amendment of License, Soliciting Comments, Motions to Intervene and Protests: Pacific Gas and Electric Company, 10238-10239 E8-3546 Combined Notice of Filings, 10240-10241 E8-3565 Soliciting Scoping Comments: City of Kaukauna, WI, 10241-10242 E8-3550 Federal Motor Federal Motor Carrier Safety Administration RULES Fees for Unified Carrier Registration Plan and Agreement;
Correction, 10157-10158 E8-3603 Federal Railroad Federal Railroad Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10322-10327 E8-3606 Federal Reserve Federal Reserve System NOTICES Meetings; Sunshine Act, 10244 08-880 FTC Federal Trade Commission PROPOSED RULES Guides for the Jewelry, Precious Metals, and Pewter Industries, 10190-10199 E8-3594 NOTICES Premerger notification Waiting Periods; Early Terminations, 10244-10247 08-832 Federal Transit Federal Transit Administration NOTICES National Rural Transportation Assistance Program;
Request for Proposals, 10327-10332 E8-3604 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: Greater Sage-Grouse, 10218-10219 E8-3374 NOTICES Erie National Wildlife Refuge, Crawford County, PA, 10278-10279 E8-3576 Iroquois National Wildlife Refuge, Genesee County and Orleans County, NY, 10279-10280 E8-3571 Issuance of Permits for Marine Mammals, 10280-10281 E8-3627 Meetings: Trinity Adaptive Management Working Group, 10281 E8-3572 Oregon Parks and Recreation Department Habitat Conservation Plan:
Western Snowy Plover in Clastop, Tillamook, Lincoln, Lane, Douglas, Coos, and Curry Counties, Oregon, 10281-10282 08-825 Receipt of Applications for Permit, 10282-10283 E8-3629 E8-3630 Health Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Children and Families Administration See Health Resources and Services Administration See National Institutes of Health See Refugee Resettlement Office NOTICES Meetings:
Secretary's Advisory Committee on Re-Designation of Head Start Grantees, 10248 E8-3641 Health Health Resources and Services Administration NOTICES HIV/AIDS Bureau Policy Notice, 10260-10262 E8-3607 Homeland Homeland Security Department See Federal Emergency Management Agency See Transportation Security Administration RULES Inflation Adjustment for Civil Monetary Penalties Under the Immigration and Nationality Act, 10130-10137 E8-3320 Housing Housing and Urban Development Department NOTICES Announcement of Funding Awards:
Housing Choice Voucher Family Self Sufficiency Program for Fiscal Year 2007, 10264-10274 E8-3638 Public Housing Family Self-Sufficiency for Fiscal Year 2007, 10274-10278 E8-3634 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See Minerals Management Service See National Park Service International International Trade Administration NOTICES Initiation of Antidumping Duty Investigation: Circular Welded Austenitic Stainless Pressure Pipe from the Peoples Republic of China, 10221-10226 E8-3642 Recruitment for expressions of interest from qualified U.S. travel and tourism industry associations, 10226 08-850 International International Trade Commission NOTICES Notice of Investigation:
Certain Refrigerators and Components, 10285-10286 E8-3575 Justice Justice Department See Executive Office for Immigration Review RULES Inflation Adjustment for Civil Monetary Penalties Under the Immigration and Nationality Act, 10130-10137 E8-3320 NOTICES Amendment to Consent Decree, etc.: Neils Landfill, Lemon Lane Landfill and Bennetts Dump, 10286-10287 E8-3542 Extension of Period for Public Comments Regarding Settlement Agreement, 10287 E8-3610 Extension of Public Comment Period Regarding Lodging of Consent Decree, 10287-10288 E8-3543 Labor Labor Department See Employment and Training Administration Land Land Management Bureau NOTICES Public Land Order:
Revocation of Secretarial Order dated June 28, 1943; Utah, 10283-10284 E8-3608 Library Library of Congress See Copyright Office, Library of Congress Merit Merit Systems Protection Board RULES Implementation of Electronic Filing, 10127-10130 E8-3515 Millennium Millennium Challenge Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10290-10291 08-828 Minerals Minerals Management Service NOTICES Preparation of an Environmental Assessment for the Alternative Energy and Alternate Use, 10284 E8-3625 NASA National Aeronautics and Space Administration RULES Cross-Waiver of Liability, 10143-10150 E8-2868 NOTICES Meetings:
NASA Advisory Council; Science Committee; Heliophysics Subcommittee, 10291 E8-3536 National Agricultural National Agricultural Statistics Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10220 08-840 NIH National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10262 E8-3563 Meetings: National Heart, Lung, and Blood Institute, 10262-10263 08-836 National Institute of Allergy and Infectious Diseases, 10263 08-838 National Library of Medicine, 10263 08-833 National Labor National Labor Relations Board PROPOSED RULES Joint Petitions for Certification Consenting to an Election, 10199-10201 E8-2767 NOAA National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic:
Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; Closure, 10158-10159 08-835 Fisheries of the Exclusive Economic Zone Off Alaska: Bering Sea and Aleutian Islands; Final 2008 and 2009 Harvest Specifications for Groundfish, 10160-10184 E8-3512 Pollock in Statistical Area 630 of the Gulf of Alaska, 10159-10160 08-851 NOTICES Meetings: Gulf of Mexico Fishery Management Council, 10227 E8-3552 National Park National Park Service NOTICES General Management Plan;
Final Environmental Impact Statement: Saguaro National Park, AZ, 10284-10285 E8-3570 Meetings: Cape Cod National Seashore Advisory Commission, 10285 E8-3599 National Preservation Technology and Training Board -National Center for Preservation Technology and Training, 10285 E8-3609 National Science National Science Foundation NOTICES Committee Management; Renewal, 10291 E8-3612 Navy Navy Department NOTICES Meetings: Supplement to Draft Environmental Impact Statement, etc.; Hawaii Range Complex, 10232-10233 E8-3633 Privacy Act;
Systems of Records, 10233 E8-3600 Nuclear Nuclear Regulatory Commission PROPOSED RULES Geologic Repository Operations Area Security and Material Control and Accounting Requirements; Extension of Comment Period, 10187-10188 E8-3597 NOTICES Appointment of Adjudicatory Employee: Amergen Energy Company, LLC, 10291 E8-3593 Availability of Environmental Assessment and Finding of No Significant Impact, etc.: Veterans Affairs Facility; Tucson, AZ, 10291-10293 E8-3585 Biweekly Notice;
Applications and Amendments to Facility Operating Licenses, 10293-10302 E8-3481 Consideration of Issuance of Amendments to Facility Operating Licenses: Duke Power Company LLC, et al., 10302-10305 E8-3588 Consideration of Issuances of Amendments to Facility Operating Licenses: Vogtle Electric Generating Plant, Units 1 and 2, 10305-10308 E8-3581 Issuance of Environmental Assessment and Finding of No Significant Impact: Kansas State University Triga Mark II Nuclear Reactor, 10308-10309 E8-3598 Personnel Personnel Management Office NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, E8-3539 10309-10310 E8-3540 E8-3541 Presidential Presidential Documents ADMINISTRATIVE ORDERS Palestinian Authority; imposition and waiver of sanctions (Presidential Determination) No. 2008-11 of February 11, 2008, 10123 08-868 No. 2008-12 of February 13, 2008, 10125 08-869 Refugee Refugee Resettlement Office PROPOSED RULES Limitation on Use of Funds and Eligibility for Funds Made Available to Monitor and Combat Trafficking in Persons, 10210-10218 E8-3489 Rural Rural Telephone Bank NOTICES Determination of the 2007 Fiscal Year Interest Rate on Rural Telephone Bank Loans, 10220-10221 E8-3561 SEC Securities and Exchange Commission NOTICES Application:
Triangle Capital Corporation, 10310-10313 E8-3555 Meetings: Advisory Committee on Improvements to Financial Reporting, 10313 E8-3568 Order of Suspension of Trading: TelcoBlue, Inc., 10313-10314 08-861 Self-Regulatory Organizations; Proposed Rule Changes: American Stock Exchange LLC, 10314-10319 E8-3554 E8-3559 Chicago Board Options Exchange, 10319-10320 E8-3553 SBA Small Business Administration NOTICES Meetings: National Womens Business Council, 10320 E8-3617 Statistical Statistical Reporting Service See National Agricultural Statistics Service Surface Surface Transportation Board NOTICES Notice Tentatively Approving Finance Transaction:
Fenway Partners Capital Fund III, L.P. et al., 10332-10334 E8-3580 E8-3582 Railroad Cost Recovery Procedures; Productivity Adjustment, 10335 E8-3584 Textile Textile Agreements Implementation Committee See Committee for the Implementation of Textile Agreements Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See Federal Railroad Administration See Federal Transit Administration See Surface Transportation Board Transportation Transportation Security Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 10263-10264 E8-3631 Veterans Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10335 E8-3535 Separate Parts In This Issue Part II Health and Human Services Department, Children and Families Administration, 10338-10378 E8-3050 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 73 38 Tuesday, February 26, 2008 Rules and Regulations MERIT SYSTEMS PROTECTION BOARD 5 CFR Parts 1201, 1203, 1208, and 1209 Final Rule for Implementation of Electronic Filing AGENCY: Merit Systems Protection Board. ACTION: Final rule with request for comments.
SUMMARY: The Merit Systems Protection Board
(MSPB)is adopting as a final rule the interim rule governing electronic filing (e-filing) that it promulgated in 2003, as amended the following year, and as further amended by the present notice. When first promulgated in 2003, the online application was restricted to the filing of new appeals; subsequent documents could only be delivered via electronic mail (e-mail). A year later, we modified the rule to reflect that e-Appeal Online could be used to file almost any type of pleading. As further modified in the present Notice, the rule recognizes the MSPB's online Repository of case-related documents that enables parties and their representatives to access the pleadings and MSPB issuances related to the particular employment controversies in which they are involved. The modified rule also contains a requirement that e-filers who include three
(3)or more attachments with a pleading describe each attachment. Finally, although not a part of this final rule, the MSPB is giving serious consideration to making e-filing mandatory for agencies and attorneys who represent appellants in MSPB proceedings. Although any such rule could only be issued following a new **Federal Register** notice, we welcome comments on this issue at the present time. DATES: This rule is effective April 28, 2008. Written comments should be submitted on or before March 27, 2008. ADDRESSES: Send or deliver comments to the Office of Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419; fax:
(202)653-7130; or e-mail: *mspb@mspb.gov* . FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419;
(202)653-7200; fax:
(202)653-7130; or e-mail: *mspb@mspb.gov* . SUPPLEMENTARY INFORMATION: Before describing the changes being made to our regulations at this time, we note that the MSPB did not receive any comments from the public to the interim rule promulgated in 2003, 68 FR 59859, nor to the 2004 modifications to that rule, 69 FR 57627. Summary of Significant Changes 1. Repository at e-Appeal Online (paragraph (i)) Beginning in July 2007, the MSPB has maintained a Repository at e-Appeal Online ( *https://e-appeal.mspb.gov* ) that contains the electronic documents that relate to MSPB appeals, including all notices, orders, decisions, and other documents issued by the MSPB to the parties, as well as pleadings filed via e-Appeal Online. In addition, virtually all pleadings filed at the petition for review stage of adjudication, even if filed in paper form, and some pleadings filed at the regional office level, are available at the Repository. Also available at the Repository is an electronic “docket sheet” that lists all documents issued by the MSPB to the parties, as well as all pleadings filed by the parties, including those pleadings that are not available for viewing and downloading in electronic form. When the MSPB issues a document to the parties, or when an electronic pleading is filed by an e-filer, an e-mail message is generated to all e-filers in the case notifying them of the new pleading or MSPB issuance, and providing a link to the document at the Repository. (See paragraph (j).) Access to appeal documents at the Repository is limited to the parties and representatives of the cases in which they were filed. In the very near future, all pleadings added to the Repository will be full-text searchable, including printed materials that have been converted to electronic format by scanning. This will be accomplished using optical character recognition software that converts image-only electronic formats into an image-plus-text electronic format. We believe that making case-related documents full-text searchable will make it easier for both the parties to MSPB proceedings and the MSPB itself to search case files for pertinent materials. 2. Multiple Attachments Must be Described Paragraph (g)(3) requires an e-filer who is uploading three
(3)or more supporting attachments, in addition to the document that constitutes the party's primary pleading, to describe each attachment. The reason for this requirement is to increase the utility of having large documents in electronic format. When attachments are described as required by this provision, the MSPB's software formats the pleading so that it includes a table of contents which lists the page number on which each attachment starts. In addition, the electronic Portable Document Format
(PDF)version contains “bookmarks” that can be seen at the same time as the document itself, and clicking the bookmark for a particular attachment takes the user directly to that attachment. Although this requirement would apply to all electronic pleadings with three
(3)or more attachments, it will have particular significance for the Agency File (see 5 CFR 1201.25), which is often the largest pleading in the case file, and which often has the most attachments of any pleading in the case file. We believe that any extra time required to describe each attachment under this rule will be offset by the time saved compared to the present method of producing the Agency File, which requires the manual production of a table of contents and the insertion of numerous paper dividers. In addition, this feature will enable all participants to cite the exact pages on which each attachment can be found, as all pages in e-filed pleadings, including attachments, are sequentially paginated by the e-Appeal Online software, e.g., page 1 of 125, page 2 of 125, etc. Under current practice, such precise citation is frequently not possible, as a particular attachment may consist of two pages in the middle of a group of documents located within a single tab in the Agency File. 3. Other Changes Other additions and changes from the current rule include the following: • The current regulation excludes the filing of the original complaint or request in an appeal within the MSPB's original jurisdiction from e-filing. That exclusion will no longer be necessary, as the MSPB is adding a module to e-Appeal Online that will allow such filings. Paragraphs
(b)and
(c)of section 1201.14, and sections 1201.134(g), 1201.137(g), and 1201.143(f) have been amended to reflect this change. • Paragraph (e)(3) has been modified to provide that, when a party has more than one representative, all representatives must choose the same method of service. In the interest of administrative efficiency, we do not believe it would be unduly burdensome to require all representatives to choose the same service method, be it electronic or postal mail. The regulation still provides that the appellant and his or her representative can choose different methods of service. • Because the content of what was paragraph (e)(4) has been modified and redesignated as paragraph (f), and because a new paragraph
(i)has been added regarding the Repository at e-Appeal Online, the designations of the materials that had been contained in paragraphs
(f)through
(m)have changed. This redesignation of paragraphs also required a minor change to § 1201.4(k). • Paragraph (e)(5) clarifies that registration as an e-filer ordinarily applies only to a single MSPB appeal, i.e., the MSPB will not presume that an individual who was an e-filer in one proceeding has opted to become an e-filer in subsequent MSPB proceedings. • Paragraph (e)(6) mandates that e-filers notify the MSPB of any change in their e-mail addresses. • Paragraph
(h)provides that, in hybrid pleadings in which part of a pleading is submitted electronically, and one or more attachments is submitted in paper form, all components are subject to applicable time limits, and untimely filed components may be rejected as untimely filed. We note in this regard that an e-filer is only required to certify that he or she will submit the paper components within one business day of the electronic submission. • Paragraph (j)(1) clarifies that paper copies of MSPB documents will not ordinarily be served on e-filers. • Paragraph (j)(2) clarifies that e-filers are responsible for ensuring that e-mail messages from e-Appeal Online are not blocked by filters of one sort or another. • Paragraph (j)(3) provides that e-filers are responsible for monitoring case activity. The MSPB's software automatically generates an e-mail message to e-filers with a link to the Repository whenever the MSPB issues a document to the parties, or when another e-filer submits an electronic pleading. In addition, e-filers are responsible for ensuring that their e-mail accounts are not blocked by filters, as noted above. Nevertheless, this rule clarifies that e-filers are still responsible for monitoring the Repository on a regular basis to ensure that they have received all case-related documents. • Paragraph
(m)clarifies that e-filed pleadings are stamped with the date and time of submission in the Eastern Time Zone, but that the timeliness of a pleading will be determined based on the time zone from which the pleading was submitted. • Paragraph
(o)clarifies that the MSPB reserves the right to revert to traditional methods (postal mail, fax, personal or commercial delivery) for serving documents on parties and representatives, and that parties and representatives are responsible for ensuring that the MSPB always has their current postal mailing addresses, even when they have registered as e-filers. Possible Requirement of Mandatory E-Filing for Agencies and Attorneys Although not part of this final rule, the MSPB is considering proposing a rule that would make e-filing mandatory for agencies and attorneys who represent appellants. The MSPB's long-term goal is to have entirely electronic case files (e-case files), which we believe would have significant benefits both for the MSPB and the participants in MSPB appeals. All parties and representatives, as well as appropriate MSPB employees, would have access to all case-related documents at any time and place, as long as they had access to the Internet. In addition, the ability to run sophisticated full-text searches of the contents of the entire case file would make it easier for parties and the MSPB to find and cite pertinent record evidence. There are only two basic methods for getting the parties' pleadings into an electronic format for inclusion in an e-case file—they can be filed in an electronic format; or they can be scanned after they have been filed in paper form. The MSPB lacks the resources to scan all pleadings received in paper form, and we view that option as unduly labor intensive. If e-filing remains completely optional, it is unlikely that the MSPB will ever achieve completely electronic, searchable case files. If, however, all pleadings submitted by agencies and attorneys were e-filed, scanning the remaining paper pleadings would become manageable, especially considering the significant number of pleadings e-filed by pro se appellants. Although the law requires federal agencies to provide information and services via the Internet, it also mandates that agencies consider the impact on persons without access to the Internet and, to the extent practicable, ensure that the availability of government services has not been diminished for such persons. 44 U.S.C. 3501 note. Accordingly, the MSPB cannot make e-filing mandatory for pro se appellants. We see no legal restriction to making e-filing mandatory for Federal agencies or attorneys, however, and do not believe it would impose undue costs or difficulties for them. We note in this regard that e-filing is generally mandatory for attorneys in the Federal district courts; only parties proceeding on a pro se basis have the option of filing pleadings in paper form. We also note that, unlike e-filing in the Federal courts, e-Appeal Online does not require the filer to convert other electronic formats to PDF before filing; the MSPB's software accepts numerous common formats, including word-processing formats, and converts them to PDF. All that would be required are a computer, access to e-mail and the Internet, and a scanner. List of Subjects 5 CFR Part 1201 Administrative practice and procedure, Civil rights, Government employees. 5 CFR Part 1203 Administrative practice and procedure, Civil rights, Government employees. 5 CFR Part 1208 Administrative practice and procedure, Government employees, Veterans. 5 CFR Part 1209 Administrative practice and procedure, Government employees, Whistleblowing. Accordingly, the interim rules amending 5 CFR parts 1201, 1203, 1208, and 1209, which were published at 68 FR 59859 on October 20, 2003, and at 69 FR 57627 on September 27, 2004, are adopted as final rules with the following changes: PART 1201—[AMENDED] 1. The authority citation for part 1201 continues to read as follows: Authority: 5 U.S.C. 1204 and 7701, unless otherwise noted. 2. Revise § 1201.4(k) to read as follows: § 1201.4 General definitions.
(k)*Certificate of service* . A document certifying that a party has served copies of pleadings on the other parties or, in the case of paper documents associated with electronic filings under paragraph
(h)of § 1201.14, on the MSPB. 3. Section 1201.14 is revised to read as follows: § 1201.14 Electronic Filing Procedures.
(a)*General* . This section prescribes the rules and procedures by which parties and representatives to proceedings within the MSPB's appellate and original jurisdiction may file and receive documents in electronic form.
(b)*Matters subject to electronic filing* . Subject to the registration requirement of paragraph
(e)of this section, parties and representatives may use electronic filing (e-filing) to do any of the following:
(1)File any pleading, including a new appeal, in any matter within the MSPB's appellate jurisdiction (§ 1201.3);
(2)File any pleading in any matter within the MSPB's original jurisdiction (§ 1201.2);
(3)File a petition for enforcement of a final MSPB decision (§ 1201.182);
(4)File a motion for an attorney fee award as a prevailing party (§ 1201.203);
(5)File a motion for compensatory or consequential damages (§ 1201.204);
(6)Designate a representative, revoke such a designation, or change such a designation (§ 1201.31); or
(7)Notify the MSPB of a change in contact information such as address (geographic or electronic mail) or telephone number.
(c)*Matters excluded from electronic filing* . Electronic filing may not be used to:
(1)File a request to hear a case as a class appeal or any opposition thereto (§ 1201.27);
(2)Serve a subpoena (§ 1201.83); or
(3)File a pleading with the Special Panel (§ 1201.173).
(d)*Internet is sole venue for electronic filing* . Following the instructions at e-Appeal Online, the MSPB's e-Appeal site ( *https://e-appeal.mspb.gov* ), is the only method allowed for filing electronic pleadings with the MSPB. The MSPB will not accept pleadings filed by electronic mail (e-mail).
(e)*Registration as an e-filer* .
(1)Registration as an e-filer constitutes consent to accept electronic service of pleadings filed by other registered e-filers and documents issued by the MSPB. Except when filing a new appeal within the MSPB's appellate jurisdiction (§ 1201.3), no party or representative may file an electronic pleading with the MSPB unless he or she has registered with the MSPB as an e-filer.
(2)With the exception of a designation of a representative by a party who is an individual, the exclusive means for a party or representative to register as an e-filer during an MSPB proceeding is to follow the instructions at e-Appeal Online ( *https://e-appeal.mspb.gov* ).
(3)When a party who is an individual is represented, the party and the representative can make separate determinations whether to register as an e-filer. For example, an appellant may file and receive pleadings and MSPB documents by non-electronic means, even though his or her representative has registered as an e-filer. When a party has more than one representative, however, all representatives must choose the same method of service.
(4)A party or representative may withdraw his or her registration as an e-filer. Such withdrawal means that, effective upon the MSPB's receipt of this withdrawal, pleadings and MSPB documents will no longer be served on that person in electronic form. A withdrawal of registration as an e-filer may be filed at e-Appeal Online, in which case service is governed by paragraph
(j)of this section, or by non-electronic means, in which case service is governed by § 1201.26(b).
(5)Registration as an e-filer applies only to a single MSPB appeal or proceeding. If an appeal is dismissed without prejudice, however, and is later refiled, an election of e-filing status will remain in effect. An election of e-filing status will also remain in effect for purposes of filing a petition for enforcement under Subpart F of this part, or filing a motion for an attorney fee award or compensatory or consequential damages under Subpart H of this Part.
(6)Each e-filer must notify the MSPB and other participants of any change in his or her e-mail address. When done via e-Appeal Online, such notification is done by selecting the “Pleading” option.
(f)*e-Filing not mandatory for e-filers* . A party or representative who has registered as an e-filer may file any pleading by non-electronic means, i.e., via postal mail, fax, or personal or commercial delivery.
(g)*Form of electronic pleadings.*
(1)*Options for e-filing.* An appellant or representative using e-Appeal Online to file a new appeal within the MSPB's appellate jurisdiction (§ 1201.3) must complete the structured interview at that site ( *https://e-appeal.mspb.gov* ). For all other pleadings, the e-filer has the option of uploading an electronic file or entering the text of the pleading online. Regardless of the means of filing a particular pleading, the e-filer will be allowed to submit supporting documentation such as attachments, in either electronic or paper form, as described in paragraphs (g)(2), (g)(3), and
(h)of this section.
(2)*Electronic formats allowed* . The MSPB will accept numerous electronic formats, including word-processing and spreadsheet formats, Portable Document Format (PDF), and image files (files created by scanning). A list of formats allowed can be found at e-Appeal Online. All electronic documents must be formatted so that they will print on standard 8 1/2 inch by 11 inch paper.
(3)*Requirements for pleadings with 3 or more electronic attachments* . An e-filer who uploads 3 or more supporting documents, in addition to the document that constitutes the primary pleading, must identify each attachment, either by filling out the table for such attachments at e-Appeal Online, or by uploading the supporting documents in the form of one or more PDF files in which each attachment is bookmarked. Each attachment must be designated with a brief descriptive label, which will include exhibit numbers or letters where appropriate or required, e.g., “Exh. 4b, Decision Notice.”
(h)*Hybrid pleadings that include both electronic and paper documents* . An e-filer may file a hybrid pleading in which part of the pleading is submitted electronically, and part of the pleading consists of one or more paper documents filed by non-electronic means. All components of a hybrid pleading are subject to applicable time limits. If one or more parts of a hybrid pleading are untimely filed, the judge or the Clerk may reject the untimely part or parts while accepting timely filed parts of the same pleading.
(i)*Repository at e-Appeal Online* . All notices, orders, decisions, and other documents issued by the MSPB, as well as all pleadings filed via e-Appeal Online, will be made available to parties and their representatives for viewing and downloading at the Repository at e-Appeal Online. In addition, most pleadings filed at the petition for review stage of adjudication, and some pleadings filed at the regional office level, will be available at the Repository. Also available at the Repository will be an electronic “docket sheet” listing all documents issued by the MSPB to the parties, as well as all pleadings filed by the parties, including those pleadings that are not available for viewing and downloading in electronic form. Access to appeal documents at the Repository will be limited to the parties and representatives of the appeals in which they were filed.
(j)*Service of electronic pleadings and MSPB documents* .
(1)When MSPB documents are issued, e-mail messages will be sent to e-filers that notify them of the issuance and that contain links to the Repository where the documents can be viewed and downloaded. Paper copies of these documents will not ordinarily be served on e-filers. Pleadings submitted via e-Appeal Online will be available to parties and representatives at the e-Appeal Online Repository, and the MSPB will send e-mail messages to other e-filers notifying them of each pleading, with a link to the Repository. When using e-Appeal Online to file a pleading, e-filers will be notified of all documents that must be served by non-electronic means, and they must certify that they will serve all such documents no later than the first business day after the electronic submission.
(2)Delivery of e-mail can encounter a number of failure points. If the MSPB is advised of non-delivery, it will attempt to redeliver and, if that is unsuccessful, will deliver by postal mail or other means. E-filers are responsible for ensuring that e-mail from @mspb.gov is not blocked by filters.
(3)E-filers are responsible for monitoring case activity at the Repository at e-Appeal Online to ensure that they have received all case-related documents.
(k)*Documents requiring a signature* . Electronic documents filed by a party who has registered as an e-filer pursuant to this section shall be deemed to be signed for purposes of any regulation in part 1201, 1203, 1208, or 1209 of this chapter that requires a signature.
(l)*Affidavits and Declarations made under penalty of perjury* . Registered e-filers may submit electronic pleadings in the form of declarations made under penalty of perjury under 28 U.S.C. 1746, as described in Appendix IV to this part. If the declarant is someone other than the e-filer, a physically signed affidavit or declaration should be uploaded as an image file, or submitted separately as a non-electronic document under paragraph
(h)of this section.
(m)*Date electronic documents are filed and served* .
(1)As provided in § 1201.4(l) of this Part, the date of filing for pleadings filed via e-Appeal Online is the date of electronic submission. All pleadings filed via e-Appeal Online are time stamped with Eastern Time, but the timeliness of a pleading is assessed based on the time zone where the pleading is being filed. For example, a pleading filed at 11 p.m. Pacific Time on August 20 will be stamped by e-Appeal Online as being filed at 2 a.m. Eastern Time on August 21. However, if the pleading was required to be filed with the Western Regional Office on August 20, it would be considered timely, as it was submitted prior to midnight Pacific Time on August 20.
(2)MSPB documents served electronically on registered e-filers are deemed received on the date of electronic submission.
(n)*Authority of a judge or the Clerk to regulate e-filing* .
(1)In the event that the MSPB or any party encounters difficulties filing, serving, or receiving electronic documents, the judge or the Clerk of the Board may order one or more parties to cease filing pleadings by e-filing, cease serving documents in electronic form, or take both these actions. In such instances, filing and service shall be undertaken in accordance with § 1201.26. The authority to order the cessation of the use of electronic filing may be for a particular submission, for a particular time frame, or for the duration of the pendency of a case.
(2)A judge or the Clerk of the Board may require that any document filed electronically be submitted in non-electronic form and bear the written signature of the submitter. A party receiving such an order from a judge or the Clerk of the Board shall, within 5 calendar days, serve on the judge or Clerk of the Board by postal mail, by fax, or by commercial or personal delivery a signed, non-electronic copy of the document.
(o)*MSPB reserves the right to revert to traditional methods of service* . The MSPB may serve documents via traditional means—postal mail, fax, personal or commercial delivery—at its discretion. Parties and their representatives are responsible for ensuring that the MSPB always has their current postal mailing addresses, even when they have registered as e-filers. 4. Revise § 1201.134(g) to read as follows: § 1201.134 Deciding official; filing stay request; serving documents on parties.
(g)*Electronic filing* . All pleadings may be filed and served in electronic form at the MSPB e-Appeal site ( *https://e-appeal.mspb.gov/* ), provided the requirements of § 1201.14 are satisfied. 5. Revise § 1201.137(f) to read as follows: § 1201.137 Covered actions; filing complaint; serving documents on parties.
(f)*Electronic filing* . All pleadings may be filed and served in electronic form at the MSPB e-Appeal site ( *https://e-appeal.mspb.gov/* ), provided the requirements of § 1201.14 are satisfied. 6. Revise § 1201.143(f) to read as follows: § 1201.143 Right to hearing; filing complaint; serving documents on parties.
(f)*Electronic filing* . All pleadings may be filed and served in electronic form at the MSPB e-Appeal site ( *https://e-appeal.mspb.gov/* ), provided the requirements of § 1201.14 are satisfied. William D. Spencer, Clerk of the Board. [FR Doc. E8-3515 Filed 2-25-08; 8:45 am] BILLING CODE 7400-01-P DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 270, 274a, and 280 RIN 1653-AA39 DEPARTMENT OF JUSTICE 28 CFR Part 68 Executive Office for Immigration Review 8 CFR Part 1274a RIN 1125-AA61 [EOIR Docket No. 165F; A.G. Order No. 2944-2008] Inflation Adjustment for Civil Monetary Penalties Under Sections 274A, 274B, and 274C of the Immigration and Nationality Act AGENCIES: U.S. Immigration and Customs Enforcement, DHS; Executive Office for Immigration Review, Justice. ACTION: Final rules. SUMMARY: As required by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, the Department of Homeland Security and the Department of Justice are publishing these rules adjusting for inflation the civil monetary penalties assessed or enforced by those two Departments under sections 274A, 274B, and 274C of the Immigration and Nationality Act (INA). The adjusted civil money penalties are calculated according to the specific formula laid out by law, and will be effective for violations occurring on or after the effective date of these rules. DATES: These rules are effective March 27, 2008. FOR FURTHER INFORMATION CONTACT: *Concerning amendments to 8 CFR parts 270 and 274a:* Marissa Hernandez, National Program Manager for Worksite Enforcement, Office of Investigations, 425 I Street, NW., Washington, DC 20536, telephone number
(202)307-0071 (not a toll free call). *Concerning amendments made to 8 CFR part 1274a and 28 CFR part 68:* Kevin J. Chapman, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone number
(703)305-0470 (not a toll free call). SUPPLEMENTARY INFORMATION: I. Background The Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410 (Adjustment Act), 28 U.S.C. 2461 note, provides for the regular evaluation of civil monetary penalties to ensure that they continue to maintain their deterrent effect and that penalty amounts due the Federal Government are properly accounted for and collected. On April 26, 1996, the President signed into law the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. 104-134. Section 31001 of that Act, also known as the Debt Collection Improvement Act of 1996 (Improvement Act), amended the Adjustment Act to provide more effective tools for government-wide collection of delinquent debt. Section 31001(s)(1) of the Improvement Act added a new section 7 to the Adjustment Act providing that any increase in a civil monetary penalty made pursuant to this Act shall apply only to violations that occur after the date the increase takes effect. The Improvement Act provides that the adjustments for inflation required by the Adjustment Act should be made every four years. The amounts of the adjustments are determined according to a detailed formula specified in the Adjustment Act, incorporating a “cost-of-living adjustment” that is defined in section 5(b) of the Adjustment Act as being the percentage (if any) for each civil monetary penalty by which:
(1)The Consumer Price Index for the month of June of the calendar year preceding the adjustment, exceeds
(2)the Consumer Price Index for the month of June of the calendar year in which the amount of such civil monetary penalty was last set or adjusted pursuant to law. In addition, section 5(a) of the Adjustment Act provides that any increase so determined under this formula is subject to rounding under the following specified standards: • For penalties less than or equal to $100, increases are rounded to multiples of $10; • For penalties greater than $100 but less than or equal to $1,000, increases are rounded to multiples of $100; • For penalties greater than $1,000 but less than or equal to $10,000, increases are rounded to multiples of $1,000; • For penalties greater than $10,000 but less than or equal to $100,000, increases are rounded to multiples of $5,000; • For penalties greater than $100,000 but less than or equal to $200,000, increases are rounded to multiples of $10,000; and • For penalties greater than $200,000, increases are rounded to multiples of $25,000. Section 31001(s)(2) of the Improvement Act also provides that the first adjustment of a civil monetary penalty made pursuant to these procedures may not exceed 10 percent of the penalty. II. Civil Penalties Imposed After Hearing Before an Administrative Law Judge These final rules revise the current regulations implementing three different sections in the Immigration and Nationality Act
(INA)that provide for the imposition of civil money penalties to be imposed for violations of the law, each of which include provisions for a hearing before an administrative law judge
(ALJ)to adjudicate cases and set the amount of the penalty. The Department of Homeland Security
(DHS)has enforcement responsibilities for two of these civil penalty provisions, 1 while the Civil Rights Division of the Department of Justice has enforcement responsibilities for the third. 1 Although the enforcement of these provisions of the immigration laws was initially assigned to the Attorney General, and had been delegated to the former Immigration and Naturalization Service (INS), the Homeland Security Act abolished the former INS and transferred its functions to DHS, effective March 1, 2003. See 6 U.S.C. 251, 291. *Section 274A of the INA (8 U.S.C. 1324a)* . Section 274A provides for imposition of civil penalties for various specified unlawful acts pertaining to the employment eligibility verification process (Form I-9) and the employment of unauthorized aliens. These penalties cover, among other things, the knowing employment of unauthorized aliens and the failure to comply with the employment verification requirements relating to completion of Form I-9. U.S. Immigration and Customs Enforcement (ICE), in DHS, conducts the investigations and initiates the process for imposing civil money penalties with respect to employer sanctions under section 274A of the INA and 8 CFR part 274a. *Section 274B of the INA (8 U.S.C. 1324b).* Section 274B provides for imposition of civil penalties for specified actions constituting immigration-related unfair employment practices. These penalties cover, among other things, discrimination against job applicants or employees based on nationality or citizenship status, and violations of the law by an employer who refuses to accept permissible documents presented by an employee in compliance with the Form I-9 requirements (for example, by insisting that an employee must present a so-called “green card” even though the employee has already presented proper documentation to complete Form I-9). The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), a component within the Civil Rights Division of the Department of Justice, is responsible for investigating alleged violations of section 274B of the INA pertaining to unfair immigration-related employment practices (called “charges”). See 28 CFR part 44. After investigating the charges, OSC is authorized to file a complaint to initiate a civil penalty proceeding. The law also includes a private action provision allowing the person making a charge to file a complaint directly if OSC has not filed a complaint within 120 days after receiving the charges. *Section 274C of the INA (8 U.S.C. 1324c).* Section 274C provides for imposition of civil penalties for specified actions relating to immigration-related document fraud. ICE conducts the investigations and initiates the process for imposing civil money penalties with respect to document fraud under section 274C of the INA and 8 CFR part 270. *Hearings for Adjudicating Complaints and Imposing Penalties.* Each of these three sections of the INA provides that, when administrative hearings are necessary to adjudicate the complaints and impose the civil penalties, the hearings are to be conducted before an ALJ. Accordingly, the Attorney General established the Office of the Chief Administrative Hearing Officer (OCAHO), an office within the Executive Office for Immigration Review
(EOIR)in the Department of Justice, to conduct the ALJ hearings for civil penalty actions under each of these three statutes. See 28 CFR part 68. ALJ hearings are conducted in every case under section 274B of the INA. However, an ALJ hearing is conducted under sections 274A and 274C of the INA only if the subject of the civil penalty proceeding requests an administrative hearing, after the issuance of ICE's notice of intent to fine describing the violations and stating the intended amount of the civil penalties. If the subject does not submit a request for an ALJ hearing within the time allowed, then the civil penalties are imposed as determined by ICE. If the subject does make a timely request for a hearing, then an ALJ adjudicates the alleged violations and issues a decision, including a determination of the amount of the civil penalties imposed for any violations found, pursuant to the rules in 28 CFR part 68. An ALJ decision in a case arising under section 274A or 274C of the INA is subject to review by the Chief Administrative Hearing Officer and the Attorney General, as provided in 28 CFR 68.54 and 68.55. Because both DHS and EOIR can impose penalties relating to employer sanctions and document fraud cases (sections 274A and 274C, respectively), the current regulations of both Departments specify the range of penalties applicable in these kinds of cases. As noted above, the minimum and maximum civil penalty amounts for each violation will necessarily be the same whether the penalties are imposed by DHS without a hearing, or by OCAHO after an administrative hearing. See 8 CFR 274a.10 and 270.3; 28 CFR 68.52(c) and (e). III. Adjustment of Civil Money Penalties Under the Adjustment Act, as amended, federal agencies are obligated to adopt, by regulation, revised amounts for statutory civil penalties in order to account for inflation. These regulations carry out that statutory mandate. Since the statutory formula is extremely detailed, leaving no discretion as to setting the specific amounts, these rules implement the new inflation adjustments for the civil penalties without the need for a notice and comment period. Pursuant to the authority of the Adjustment Act, the Department of Justice has previously adjusted the civil money penalties for inflation, increasing the specific amounts stated in sections 274A, 274B, and 274C of the INA. The amounts of the civil money penalties currently being imposed under these provisions were last adjusted for inflation in 1999. See 64 FR 7066 (Feb. 12, 1999) (amending 28 CFR part 68); 64 FR 47099 (Aug. 30, 1999) (amending 8 CFR parts 270 and 274a, among others). Since then, as noted, the division of responsibilities between the Attorney General and the Secretary of DHS requires action by both Departments in order to effectuate a further adjustment of the civil penalties, since the current civil penalty amounts are codified in the implementing regulations of both Departments. In these final rules, the Secretary is amending 8 CFR parts 274a and 270 of the DHS regulations to incorporate the revised schedule of civil penalties, as adjusted for inflation according to the statutory formula described above. At the same time, the Attorney General is amending 28 CFR part 68 of the Justice Department regulations (the rules governing ALJ proceedings in OCAHO) to make conforming changes reflecting the adjusted schedule of civil penalties. The Attorney General is also revising a provision in the EOIR regulations, 8 CFR part 1274a.10, to eliminate the current language and to substitute a cross-reference to the existing DHS regulations in 8 CFR part 274a and the existing OCAHO regulations in 28 CFR part 68. Section 1274a.10, which simply reproduces the existing DHS regulations at 8 CFR 274a.10, was promulgated in 2003, in connection with the transfer of authority from the former INS to DHS. To ensure that all relevant authority relating to the shared responsibilities was preserved, the Attorney General at that time duplicated in their entirety the regulations in 8 CFR part 274a (which were being transferred to DHS) into the then-new part 1274a so that these provisions would also continue to be part of the Attorney General's regulations. See 68 FR 9824 (Feb. 28, 2003). However, since the penalty provisions in section 1274a.10 do not add anything to the existing regulatory provisions, the Attorney General is now revising section 1274a.10 to eliminate the duplicative language and to substitute new language cross-referencing the existing DHS regulations in 8 CFR 274a.10 and the existing OCAHO regulations in 28 CFR part 68. As noted, the current amounts of the civil money penalties under these three statutory provisions were last adjusted, by regulation, in 1999. Pursuant to section 5(b) of the Adjustment Act, the cost of living adjustment is calculated with reference to the Consumer Price Index for all urban consumers for June 1999 (497.9) and for June 2007 (the year preceding the current inflation adjustments) (624.1). This works out to an inflation adjustment of 25.35 percent. Pursuant to the statutory formula specified in the Adjustment Act, the civil money penalties under sections 274A, 274B, and 274C of the INA are being adjusted as indicated in the chart below. It should be noted that when the inflation adjustment formula was applied in 1999, not all of the penalties were affected. A few remained unchanged because the inflation adjustment when the calculations were last made in 1999 was too small to warrant an inflation increase under the statutory rounding formula set forth in the Adjustment Act. Nonetheless, for the convenience of the reader, we have reproduced those provisions in the chart. Two sets of penalties were not adjusted before because they were below the threshold for an inflation adjustment in 1999, the last time the penalties were adjusted for inflation, but they are being adjusted by this rule: • Section 403(a)(4)(C)(ii) of the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. 104-208, Div. C (codified at 8 U.S.C. 1324a note and described in 28 CFR 68.52(c)(6)) provides for a civil penalty of not less than $500 and not more than $1,000 for an employer participating in the electronic employment eligibility verification program who fails to notify DHS that it ultimately was unable to confirm an employee's employment eligibility. • Section 274C(a) of the INA was amended in 1997 to provide for a civil penalty of not less than $250 and not exceeding $2,000 in two additional circumstances: paragraph
(5)covers preparing, filing, or assisting others in preparing or filing falsely made or fraudulent documents or each proscribed activity; and paragraph
(6)relates to presenting a travel document to board an air or sea carrier but then failing to present that document upon arrival at the U.S. port of entry. Because these penalties are being adjusted for the first time, the penalties are being increased by ten percent, the maximum allowable increase for initial increases provided for by section 31001(s)(2) of the Improvement Act. In addition, this rule makes a conforming change to 8 CFR 280.53, which references the second set of penalties, since these penalties are now being adjusted. Statute Min/ Max Current penalty Year last adjusted CPI factor
(2008)(percent) Raw increase
(2008)Rounder Rounded increase Adjusted penalty Hiring, recruiting and referral employer sanctions, first order 8 U.S.C. 1324a(e)(4)(A)(i) *8 CFR 274a.10(b)(1)(ii)(A)* Min. 275 1999 25.35 70 100 100 375 8 U.S.C. 1324a(e)(4)(A)(i) *8 CFR 274a.10(b)(1)(ii)(A)* Max. 2,200 1999 25.35 558 1,000 1,000 3,200 Hiring, recruiting and referral employer sanctions, second order 8 U.S.C. 1324a(e)(4)(A)(ii) *8 CFR 274a.10(b)(1)(ii)(B)* Min. 2,200 1999 25.35 558 1,000 1,000 3,200 8 U.S.C. 1324a(e)(4)(A)(ii) *8 CFR 274a.10(b)(1)(ii)(B)* Max. 5,500 1999 25.35 1,394 1,000 1,000 6,500 Hiring, recruiting and referral employer sanctions, subsequent order 8 U.S.C. 1324a(e)(4)(A)(iii) *8 CFR 274a.10(b)(1)(ii)(C)* Min. 3,300 1999 25.35 836 1,000 1,000 4,300 8 U.S.C. 1324a(e)(4)(A)(iii) *8 CFR 274a.10(b)(1)(ii)(C)* Max. 11,000 1999 25.35 2,788 5,000 5,000 16,000 Paperwork violation 8 U.S.C. 1324a(e)(5) *8 CFR 274a.10(b)(2)* *28 CFR 68.52(c)(5)* Min. 110 1999 25.35 28 100 0 110 8 U.S.C. 1324a(e)(5) *8 CFR 274a.10(b)(2)* Max. 1,100 1999 25.35 279 1,000 0 1,100 Violation relating to participating employer's failure to notify DHS of final nonconfirmation of employee's employment eligibility [Not previously adjusted] 8 U.S.C. 1324a
(note)28 CFR 68.52(c)(6) 500 enacted in 1997 29.97 150 10% cap by statute 50 550 8 U.S.C. 1324a
(note)28 CFR 68.52(c)(6) 1,000 enacted in 1997 29.97 300 10% cap by statute 100 1,100 Unlawful employment of aliens, per person, first order 8 U.S.C. 1324a(e)(4)(A)(i) 28 CFR 68.52(c)(1)(i) Min. 275 1999 25.35 70 100 100 375 8 U.S.C. 1324a(e)(4)(A)(i) 28 CFR 68.52(c)(1)(i) Max. 2,200 1999 25.35 558 1,000 1,000 3,200 Unlawful employment of aliens, per person, second order 8 U.S.C. 1324a(e)(4)(A)(ii) 28 CFR 68.52(c)(1)(ii) Min. 2,200 1999 25.35 558 1,000 1,000 3,200 8 U.S.C. 1324a(e)(4)(A)(ii) 28 CFR 68.52(c)(1)(ii) Max. 5,500 1999 25.35 1,394 1,000 1,000 6,500 Unlawful employment of aliens, per person, subsequent order 8 U.S.C. 1324a(e)(4)(A)(ii) 28 CFR 68.52(c)(1)(ii) Min. 3,300 1999 25.35 836 1,000 1,000 4,300 8 U.S.C. 1324a(e)(4)(A)(iii) 28 CFR 68.52(c)(1)(iii) Max. 11,000 1999 25.35 2,788 5,000 5,000 16,000 Violation/prohibition of indemnity bonds 8 U.S.C. 1324a(g)(2) 8 CFR 274a.8(b) 28 CFR 68.52(c)(7) 1,100 1999 25.35 279 1,000 0 1,100 Document fraud, first order—for violations described in 8 U.S.C. 1324c(a)(1)-(4) 8 U.S.C. 1324c(d)(3)(A) 8 CFR 270.3(b)(1)(ii) 275 1999 25.35 70 100 100 375 8 U.S.C. 1324c(d)(3)(A) 8 CFR 270.3(b)(1)(ii) 2,200 1999 25.35 558 1,000 1,000 3,200 Document fraud, subsequent order—for violations described in 8 U.S.C. 1324c(a)(1)-(4) 8 U.S.C. 1324c(d)(3)(B) 8 CFR 270.3(b)(1)(ii) 2,200 1999 25.35 558 1,000 1,000 3,200 8 U.S.C. 1324c(d)(3)(B) 8 CFR 270.3(b)(1)(ii) 5,500 1999 25.35 1,394 1,000 1,000 6,500 Document fraud, first order—for violations described in 8 U.S.C. 1324c(a)(5)-(6) [Not previously adjusted.] 8 U.S.C. 1324c(d)(3)(A) 8 CFR 270.3(b)(1)(ii) 250 enacted in 1997 29.97 75 10% cap by statute 25 275 8 U.S.C. 1324c(d)(3)(A) 8 CFR 270.3(b)(1)(ii) 2,000 enacted in 1997 29.97 599 10% cap by statute 200 2,200 Document fraud, subsequent order—for violations described in 8 U.S.C. 1324c(a)(5)-(6) [Not previously adjusted.] 8 U.S.C. 1324c(d)(3)(B) 8 CFR 270.3(b)(1)(ii) 2,000 enacted in 1997 29.97 599 10% cap by statute 200 2,200 8 U.S.C. 1324c(d)(3)(B) 8 CFR 270.3(b)(1)(ii) 5,000 enacted in 1997 29.97 1,498 10% cap by statute 500 5,500 Unfair immigration-related employment practices, per person, first order 8 U.S.C. 1324b(g)(2)(B)(iv)(I) 28 CFR 68.52(d)(1)(viii) Min. 275 1999 25.35 70 100 100 375 8 U.S.C. 1324b(g)(2)(B)(iv)(I) 28 CFR 68.52(d)(1)(viii) Max. 2,200 1999 25.35 558 1,000 1,000 3,200 Unfair immigration-related employment practices, per person, second order 8 U.S.C. 1324b(g)(2)(B)(iv)(II) 28 CFR 68.52(d)(1)(ix) Min. 2,200 1999 25.35 558 1,000 1,000 3,200 8 U.S.C. 1324b(g)(2)(B)(iv)(II) 28 CFR 68.52(d)(1)(ix) Max. 5,500 1999 25.35 1,394 1,000 1,000 6,500 Unfair immigration-related employment practices, per person, subsequent order 8 U.S.C. 1324b(g)(2)(B)(iv)(III) 28 CFR 68.52(d)(1)(x) Min. 3,300 1999 25.35 836 1,000 1,000 4,300 8 U.S.C. 1324b(g)(2)(B)(iv)(III) 28 CFR 68.52(d)(1)(x) Max. 11,000 1999 25.35 2,788 5,000 5,000 16,000 Unfair immigration-related employment practices, document abuse 8 U.S.C. 1324b(g)(2)(B)(iv)(IV) 28 CFR 68.52(d)(1(xii) Min. 110 1999 25.35 28 100 0 110 8 U.S.C. 1324b(g)(2)(B)(iv)(IV) 28 CFR 68.52(d)(1(xii)) Max. 1,100 1999 25.35 279 1,000 0 1,100 Again, these changes are being made pursuant to a detailed statutory formula that does not allow for any discretion or any variances from the results calculated. The higher civil penalty amounts will be effective for violations occurring on or after the effective date of these rules. For violations occurring prior to the effective date of these rules, the civil penalty amounts set forth in the current regulations will continue to apply. 2 2 The current regulations, which implemented the last set of inflation adjustments in 1999, also include the ranges of civil penalty amounts for violations that occurred prior to the adjustment; that is, for violations that occurred prior to September 29, 1999, as well as violations that occurred after the 1999 adjustments were adopted. At this point, the revised regulations being adopted in these final rules do not set forth the civil penalty amounts for violations that occurred prior to the adoption of the adjusted civil penalty schedules in 1999, more than 8 years ago. Title 28 of the United States Code contains a “general” four-year statute of limitations for civil actions where no precise statute of limitations has been specified. 28 U.S.C. 1658. In any event, the amounts of the civil penalties for violations occurring prior to the adoption of the 1999 regulations have already been codified in the regulations as they were in effect from 1999 until the day before the effective date of these new rules. These rules fulfill the obligations of the Secretary and the Attorney General under the Adjustment Act, as amended, to adjust for inflation the civil monetary penalties under these three statutory provisions for which both Departments have implementing responsibilities. In separate rulemaking actions in the future, the Secretary will be adjusting other civil money penalties that are within the responsibility of DHS, and the Attorney General will be adjusting other civil money penalties that are within the responsibility of the Department of Justice. See, e.g., 8 CFR 280.53; 28 CFR part 85. IV. Regulatory Analyses Administrative Procedure Act, 5 U.S.C. 553 The Secretary and the Attorney General find that good cause exists under 5 U.S.C. 553(b)(3)(B) for immediate implementation of these final rules without prior notice and comment. These rules are a nondiscretionary ministerial action to conform the amount of civil penalties assessed or enforced by the Department of Homeland Security and the Department of Justice according to the statutorily mandated ranges as adjusted for inflation. The Secretary and the Attorney General are under a legal obligation to adjust these civil penalties for inflation. The calculation of these inflation adjustments follows the specific mathematical formula set forth in section 5 of the Adjustment Act. Regulatory Flexibility Act The Secretary and the Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), have reviewed these rules and by approving them certify that they will not have a significant economic impact on a substantial number of small entities. Only those entities which are determined to have violated Federal law and regulations would be affected by the inflation adjustments made by these rules, pursuant to the statutory requirement under the Adjustment Act, for the penalties imposed under sections 274A, 274B, and 274C of the INA. Executive Order 12866—Regulatory Planning and Review These rules have been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Secretary and the Attorney General have determined that these rules are not “significant regulatory actions” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly these rules have not been reviewed by the Office of Management and Budget. Executive Order 13132—Federalism These rules will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that these rules do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Executive Order 12988—Civil Justice Reform These rules meet the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. Unfunded Mandates Reform Act of 1995 These rules will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 These rules are not major rules as defined by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. These rules will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. Paperwork Reduction Act The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to these rules because there are no new or revised recordkeeping or reporting requirements. List of Subjects 8 CFR Part 270 Administrative practice and procedure, Immigration, Law enforcement. 8 CFR Part 274a Administrative practice and procedure, Immigration, Law enforcement. 8 CFR Part 280 Administrative practice and procedure, Immigration, Law enforcement. 8 CFR Part 1274a Administrative practice and procedure, Immigration. 28 CFR Part 68 Administrative practice and procedure, Aliens, Citizenship and naturalization, Civil Rights, Discrimination in employment, Employment, Equal employment opportunity, Immigration, Nationality, Non-discrimination. Department of Homeland Security *8 CFR Chapter I* Accordingly, for the reasons set forth in the preamble and pursuant to my authority as Secretary of Homeland Security, parts 270, 274a, and 280 of chapter I of title 8 of the Code of Federal Regulations are amended as follows: PART 270—PENALTIES FOR DOCUMENT FRAUD 1. The authority citation for part 270 continues to read as follows: Authority: 8 U.S.C. 1101, 1103, and 1324c; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321. 2. Section 270.3 is amended by revising paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B), and adding paragraphs (b)(1)(ii)(C) and (b)(1)(ii)(D), to read as follows: § 270.3 Penalties.
(b)* * *
(1)* * *
(ii)* * *
(A)*First offense under section 274C(a)(1) through (a)(4).* Not less than $275 and not exceeding $2,200 for each fraudulent document or each proscribed activity described in section 274C(a)(1) through (a)(4) of the Act before March 27, 2008, and not less than $375 and not exceeding $3,200 for each fraudulent document or each proscribed activity on or after March 27, 2008.
(B)*First offense under section 274C(a)(5) or (a)(6).* Not less than $250 and not exceeding $2,000 for each fraudulent document or each proscribed activity described in section 274C(a)(5) or (a)(6) of the Act before March 27, 2008, and not less than $275 and not exceeding $2,200, for each fraudulent document or each proscribed activity on or after March 27, 2008.
(C)*Subsequent offenses under section 274C(a)(1) through (a)(4).* Not less than $2,200 and not more than $5,500 for each fraudulent document or each proscribed activity described in section 274C(a)(1) through (a)(4) of the Act before March 27, 2008, and not less than $3,200 and not exceeding $6,500, for each fraudulent document or each proscribed activity occurring on or after March 27, 2008.
(D)*Subsequent offenses under section 274C(a)(5) or (a)(6).* Not less than $2,000 and not more than $5,000 for each fraudulent document or each proscribed activity described in section 274C(a)(5) or (a)(6) of the Act before March 27, 2008, and not less than $2,200 and not exceeding $5,500, for each fraudulent document or each proscribed activity occurring on or after March 27, 2008. PART 274a—CONTROL OF EMPLOYMENT OF ALIENS 3. The authority citation for part 274a is revised to read as follows: Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321. 4. Section 274a.10 is amended by revising paragraphs (b)(1)(ii)(A), (b)(1)(ii)(B), and (b)(1)(ii)(C) to read as follows: § 274a.10 Penalties.
(b)* * *
(1)* * *
(ii)* * *
(A)First offense—not less than $275 and not more than $2,200 for each unauthorized alien with respect to whom the offense occurred before March 27, 2008, and not less than $375 and not exceeding $3,200, for each unauthorized alien with respect to whom the offense occurred occurring on or after March 27, 2008;
(B)Second offense—not less than $2,200 and not more than $5,500 for each unauthorized alien with respect to whom the second offense occurred before March 27, 2008, and not less than $3,200 and not more than $6,500, for each unauthorized alien with respect to whom the second offense occurred on or after March 27, 2008; or
(C)More than two offenses—not less than $3,300 and not more than $11,000 for each unauthorized alien with respect to whom the third or subsequent offense occurred before March 27, 2008 and not less than $4,300 and not exceeding $16,000, for each unauthorized alien with respect to whom the third or subsequent offense occurred on or after March 27, 2008; and PART 280—IMPOSITION AND COLLECTION OF FINES 5. The authority citation for part 280 continues to read as follows: Authority: 8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281, 1283, 1284, 1285, 1286, 1322, 1323, and 1330; 66 Stat. 173, 195, 197, 201, 203, 212, 219, 221-223, 226, 227, 230; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321. § 280.53 [Amended]. 6. Section 280.53 is amended by removing and reserving paragraph (d)(3). Department of Justice Accordingly, for the reasons set forth in the preamble and pursuant to my authority as Attorney General, part 1274a of chapter V of title 8 of the Code of Federal Regulations and part 68 of chapter I of title 28 of the Code of Federal Regulations are amended as follows: 8 CFR Chapter V PART 1274a—CONTROL OF EMPLOYMENT OF ALIENS 1. The authority citation for part 1274a is revised to read as follows: Authority: 8 U.S.C. 1101, 1103, 1324a. 2. Section 1274a.10 is revised to read as follows: § 1274a.10 Penalties. The regulations pertaining to the imposition of penalties for violations of the provisions of section 274A of the Immigration and Nationality Act are contained in 8 CFR part 274a and 28 CFR part 68. 28 CFR Chapter I PART 68—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF ALIENS, UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD 3. The authority citation is revised to read as follows: Authority: 5 U.S.C. 301, 554; 8 U.S.C. 1103, 1324a, 1324b, and 1324c; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321. 4. In § 68.52, revise paragraphs (c)(1)(i), (c)(1)(ii), (c)(1)(iii), (c)(6), (d)(1)(viii), (d)(1)(ix), (d)(1)(x), (e)(1)(i), and (e)(1)(ii) and add paragraphs (e)(1)(iii) and
(iv)to read as follows: § 68.52 Final order of the Administrative Law Judge.
(c)* * *
(1)* * *
(i)Not less than $275 and not more than $2,200 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring before March 27, 2008; not less than $375 and not more than $3,200 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring on or after March 27, 2008;
(ii)In the case of a person or entity previously subject to one final order under this paragraph (c)(1), not less than $2,200 and not more than $5,500 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring before March 27, 2008, and not less than $3,200 and not more than $6,500 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring on or after March 27, 2008; or
(iii)In the case of a person or entity previously subject to more than one final order under paragraph (c)(1) of this section, not less than $3,300 and not more than $11,000 for each unauthorized alien with respect to whom there was a violation of each such paragraph occurring before March 27, 2008, and not less than $4,300 and not more than $16,000 for each unauthorized alien with respect to whom there was a violation of each such paragraph occurring on or after March 27, 2008.
(6)With respect to a violation of section 274A(a)(1)(B) of the INA where a person or entity participating in a pilot program has failed to provide notice of final nonconfirmation of employment eligibility of an individual to the Attorney General as required by Pub. L. 104-208, Div. C, section 403(a)(4)(C), 110 Stat. 3009, 3009-661
(1996)(codified at 8 U.S.C. 1324a (note)), the final order under this paragraph shall require the person or entity to pay a civil penalty in an amount of not less than $500 and not more than $1,000 for each individual with respect to whom such violation occurred before March 27, 2008, and not less than $550 and not more than $1,100 for each individual with respect to whom such violation occurred on or after March 27, 2008.
(d)* * *
(1)* * *
(viii)Except as provided in paragraph (d)(1)(xii) of this section, to pay a civil penalty of not less than $275 and not more than $2,200 for each individual discriminated against before March 27, 2008, and not less than $375 and not more than $3,200 for each individual discriminated against on or after March 27, 2008;
(ix)Except as provided in paragraph (d)(1)(xii) of this section, in the case of a person or entity previously subject to a single final order under section 274B(g)(2) of the INA, to pay a civil penalty of not less than $2,200 and not more than $5,500 for each individual discriminated against before March 27, 2008, and not less than $3,200 and not more than $6,500 for each individual discriminated against on or after March 27, 2008;
(x)Except as provided in paragraph (d)(1)(xii) of this section, in the case of a person or entity previously subject to more than one final order under section 274B(g)(2) of the INA, to pay a civil penalty of not less than $3,300 and not more than $11,000 for each individual discriminated against before March 27, 2008, and not less than $4,300 and not more than $16,000 for each individual discriminated against on or after March 27, 2008;
(e)* * *
(1)* * *
(i)Not less than $275 and not more than $2,200 for each document that is the subject of a violation under section 274C(a)(1) through
(4)of the INA before March 27, 2008, and not less than $375 and not more than $3,200 for each document that is the subject of a violation under section 274C(a)(1) through
(4)of the INA on or after March 27, 2008;
(ii)Not less than $250 and not more than $2,000 for each document that is the subject of a violation under section 274C(a)(5) or
(6)of the INA before March 27, 2008, and not less than $275 and not more than $2,200 for each document that is the subject of a violation under section 274C(a)(5) or
(6)of the INA on or after March 27, 2008;
(iii)In the case of a respondent previously subject to one or more final orders under section 274C(d)(3) of the INA, not less than $2,200 and not more than $5,500 for each document that is the subject of a violation under section 274C(a)(1) through
(4)of the INA before March 27, 2008, and not less than $3,200 and not more than $6,500 for each document that is the subject of a violation under section 274C(a)(1) through
(4)of the INA on or after March 27, 2008; or
(iv)In the case of a respondent previously subject to one or more final orders under section 274C(d)(3) of the INA, not less than $2,000 and not more than $5,000 for each document that is the subject of a violation under section 274C(a)(5) or
(6)of the INA before March 27, 2008, and not less than $2,200 and not more than $5,500 for each document that is the subject of a violation under section 274C(a)(5) or
(6)of the INA on or after March 27, 2008. Dated: January 23, 2008. Michael B. Mukasey, Attorney General, Department of Justice. Dated: February 11, 2008. Michael Chertoff, Secretary, Department of Homeland Security. [FR Doc. E8-3320 Filed 2-25-08; 8:45 am] BILLING CODE 4410-10-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Part 78 [Docket No. APHIS-2006-0183] RIN 0579-AC21 Brucellosis in Cattle; Research Facilities AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Final rule. SUMMARY: We are amending brucellosis regulations by providing an exception in the definition of *herd* for animals held within a federally approved brucellosis research facility, in order to facilitate research on brucellosis-exposed or infected animals in those facilities. Prior to this rule, such animals constituted a herd, and the presence of brucellosis-positive herds within a State can adversely affect that State's brucellosis classification. By providing an exception for brucellosis-exposed or infected animals held within federally approved research facilities, this rule will enable initiation of necessary brucellosis research in Class Free States. DATES: *Effective Date:* March 27, 2008. FOR FURTHER INFORMATION CONTACT: Dr. Debra Donch, National Brucellosis Epidemiologist, National Center for Animal Health Programs, VS, APHIS, 4700 River Road, Unit 136, Riverdale, MD 20737-1231;
(301)734-5952. SUPPLEMENTARY INFORMATION: Background Brucellosis is a contagious disease affecting animals and humans and caused by bacteria of the genus *Brucella.* The brucellosis regulations in 9 CFR part 78 (referred to below as the regulations) provide a system for classifying States or portions of States according to the rate of *Brucella* infection present and the general effectiveness of a brucellosis control and eradication program. The classifications are Class Free, Class A, Class B, and Class C. States or areas that do not meet the minimum standards for Class C are required to be placed under Federal quarantine. The brucellosis Class Free classification is based on a finding of no known brucellosis in cattle for the 12 months preceding classification as Class Free. The Class C classification is for States or areas with the highest rate of brucellosis. Class A and Class B fall between these two extremes. Restrictions on moving cattle interstate become less stringent as a State approaches or achieves Class Free status. In § 78.1, the regulations require that, to achieve and retain Class Free status, a State or area must have no cattle herds under quarantine. In the same section, *herd* is defined, in part, as “all animals under common ownership or supervision that are grouped on one or more parts of any single premises (lot, farm, or ranch).” Such a definition effectively precludes brucellosis research in Class Free States or areas, since infected animals may be used for such research, and the animals held in a research facility would be considered a herd under that definition of the term. Since expertise and infrastructure that could potentially benefit this country's brucellosis eradication efforts can be found in many Class Free States, this definition may impede the progress of brucellosis research and delay the eradication of the disease within the United States. On December 13, 2006, we published in the **Federal Register** (71 FR 74826-74827) a proposal 1 to amend the definition of *herd* to create an exception for brucellosis-exposed or infected animals held within federally approved research facilities, so that such animals would no longer be considered a herd. We proposed this change to allow States to undertake brucellosis research without adversely impacting their Class Free status. 1 To view the proposed rule and the comments we received, go to *http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&d=APHIS-2006-0183.* We solicited comments concerning our proposal for 60 days, ending February 12, 2007. We received eight comments by that date, from six members of a brucellosis research team at a State university, a State department of agriculture and forestry, and a national scientific society. All of the commenters supported the proposed rule. However, one of the commenters, noting our reference in the proposed rule to a series of guidelines established by the Animal and Plant Health Inspection Service (APHIS) and the Agricultural Research Service (ARS), recommended that those guidelines be integrated into the existing Federal approval guidelines for agricultural research facilities rather than creating a new Federal process. This rule pertains solely to the system for classifying States or portions of States according to the rate of *Brucella* infection present and the general effectiveness of a brucellosis control and eradication program. It is not our intent to modify or replace the series of guidelines established by APHIS and ARS for approval of research facilities at this time. Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change. Executive Order 12866 and Regulatory Flexibility Act This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. Brucellosis is a contagious, costly disease of ruminants that also affects humans. Although brucellosis can infect other animals, it is primarily a threat to cattle, bison, and swine. In animals, the disease causes weight loss, decreased milk production, loss of young, infertility, and lameness. There is no cure for brucellosis in animals, nor is there a preventative vaccine that is 100 percent effective. Given the potential for costly consequences related to an outbreak of brucellosis, additional research is needed in order to eradicate this disease. In 1952, when brucellosis was widespread throughout the United States, annual losses from lowered milk production, aborted calves and pigs, and reduced breeding efficiency were estimated at $400 million. Subsequent studies show that if eradication efforts were stopped, the costs of producing beef and milk would increase by an estimated $80 million annually in less than 10 years. We expect that the groups affected by this action will be herd owners and entities that operate brucellosis research facilities in Class Free States. To the extent that this rule allows for more research with the goal of eradicating brucellosis in the United States, it will benefit all herd owners over time. Brucellosis research facilities in Class Free States will be operated by the State in which they are located or exist as part of colleges and universities that have government contracts to conduct brucellosis research. The latest agricultural census data show that there were 732,660 farms in the United States primarily engaged in beef cattle ranching and farming and dairy cattle and milk production that reported sales in 2002. Of those farms, more than 99 percent were classified as small entities according to Small Business Association
(SBA)standards. There were 82,028 farms in the United States primarily engaged in raising hogs and pigs that reported sales in 2002. Of those farms, over 90 percent were classified as small entities by the SBA. Most, if not all, of the farms primarily engaged in bison production are classified as small entities under SBA standards. Accordingly, the majority of herd owners affected by this rule are considered small entities. For herd owners, any economic effects stemming from this rule will result from advances made toward the eradication of brucellosis in the United States. As such, these economic effects will be positive, but long-term and generalized. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities. Executive Order 12372 This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.) Executive Order 12988 This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule:
(1)Preempts all State and local laws and regulations that are in conflict with this rule;
(2)has no retroactive effect; and
(3)does not require administrative proceedings before parties may file suit in court challenging this rule. Paperwork Reduction Act This final rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, *et seq.* ). List of Subjects in 9 CFR Part 78 Animal diseases, Bison, Cattle, Hogs, Quarantine, Reporting and recordkeeping requirements, Transportation. Accordingly, we are amending 9 CFR part 78 as follows: PART 78—BRUCELLOSIS 1. The authority citation for part 78 continues to read as follows: Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4. 2. In § 78.1, the definition of *herd* is revised to read as follows: § 78.1 Definitions. *Herd.*
(a)All animals under common ownership or supervision that are grouped on one or more parts of any single premises (lot, farm, or ranch); or
(b)All animals under common ownership or supervision on two or more premises which are geographically separated but on which animals from the different premises have been interchanged or had contact with each other.
(c)For the purposes of this part, the term *herd* does not include animals that are contained within a federally approved research facility. Done in Washington, DC, this 20th day of February 2008. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E8-3591 Filed 2-25-08; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28941; Directorate Identifier 2006-NM-276-AD; Amendment 39-15386; AD 2008-04-14] RIN 2120-AA64 Airworthiness Directives; Dassault Model Falcon 2000, Falcon 2000EX, Mystere-Falcon 900, Falcon 900EX, Fan Jet Falcon, Mystere-Falcon 50, Mystere-Falcon 20, Mystere-Falcon 200, and Falcon 10 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is superseding an existing airworthiness directive (AD), which applies to all Dassault Model Falcon 2000, Mystere-Falcon 900, Falcon 900EX, Fan Jet Falcon, Mystere-Falcon 50, Mystere-Falcon 20, Mystere-Falcon 200, and Falcon 10 series airplanes. That AD currently requires repetitive tests and inspections to detect discrepancies of the overwing emergency exit, and corrective action if necessary. This new AD expands the applicability of the existing AD and extends the repetitive test and inspection intervals for all airplanes. This AD results from reports of incorrect operation of the overwing emergency exit due to interference between the emergency exit and the interior accommodation. We are issuing this AD to prevent failure of the overwing emergency exits to open, and consequent injury to passengers or crewmembers during an emergency evacuation. DATES: This AD becomes effective April 1, 2008. ADDRESSES: For service information identified in this AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, New Jersey 07606. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is the Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: 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
(425)227-1149. SUPPLEMENTARY INFORMATION: Discussion The FAA issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that supersedes AD 2000-12-15, amendment 39-11793 (65 FR 37480, June 15, 2000). The existing AD applies to all Dassault Model Falcon 2000, Mystere-Falcon 900, Falcon 900EX, Fan Jet Falcon, Mystere-Falcon 50, Mystere-Falcon 20, Mystere-Falcon 200, and Falcon 10 series airplanes. That NPRM was published in the **Federal Register** on August 16, 2007 (72 FR 45958). That NPRM proposed to continue to require repetitive tests and inspections to detect discrepancies of the overwing emergency exit, and corrective action if necessary. That NPRM also proposed to expand the applicability of the existing AD and extend the repetitive test and inspection intervals for all airplanes. Comments We provided the public the opportunity to participate in the development of this AD. No comments have been received on the NPRM or on the determination of the cost to the public. Change to the Final Rule We have changed paragraph
(f)of this final rule to specify that the actions required in that paragraph must be done in accordance with a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (or its delegated agent). In addition, we have specified Chapter 5 of the applicable airplane maintenance manuals as one approved method of compliance for doing the actions required by that paragraph. Conclusion We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD. Costs of Compliance This AD affects about 870 airplanes of U.S. registry. The actions that are required by AD 2000-12-15 and retained in this AD take about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the currently required actions is $80 per airplane, per test and inspection cycle. The new required actions take about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the new actions required by this AD for U.S. operators is $69,600, or $80 per airplane, per test and inspection cycle. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended]. 2. The Federal Aviation Administration
(FAA)amends § 39.13 by removing amendment 39-11793 (65 FR 37480, June 15, 2000) and by adding the following new airworthiness directive (AD): **2008-04-14 Dassault Aviation (Formerly Avions Marcel Dassault-Breguet Aviation (AMD/BA)):** Amendment 39-15386. Docket No. FAA-2007-28941; Directorate Identifier 2006-NM-276-AD. Effective Date
(a)This AD becomes effective April 1, 2008. Affected ADs
(b)This AD supersedes AD 2000-12-15. Applicability
(c)This AD applies to all Dassault Model Falcon 2000, Falcon 2000EX, Mystere-Falcon 900, Falcon 900EX, Fan Jet Falcon, Mystere-Falcon 50, Mystere-Falcon 20, Mystere-Falcon 200, and Falcon 10 airplanes, certificated in any category. Unsafe Condition
(d)This AD results from a report of incorrect operation of the overwing emergency exit due to interference between the emergency exit and the interior accommodation. We are issuing this AD to prevent failure of the overwing emergency exits to open, and consequent injury to passengers or crewmembers during an emergency evacuation. 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 2000-12-15 With Revised Repetitive Interval Operational Test and Inspection
(f)For Dassault Model Falcon 2000, Mystere-Falcon 900, Falcon 900EX, Fan Jet Falcon, Mystere-Falcon 50, Mystere-Falcon 20, Mystere-Falcon 200, and Falcon 10 airplanes: Within 30 days after July 20, 2000 (the effective date of AD 2000-12-15), perform an operational test and detailed inspection of the overwing emergency exit from inside the cabin to detect discrepancies (including separation, tearing, wearing, arcing, cracking) in the areas and components listed in Chapter 5 (ATA Code 52) of the applicable airplane maintenance manual (AMM). Accomplish the actions in accordance with a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency
(EASA)(or its delegated agent). If any discrepancy is detected during any test or inspection required by this paragraph, prior to further flight, repair in accordance with a method approved by the Manager, International Branch; or EASA (or its delegated agent). Chapter 5 (ATA Code 52) of the applicable AMM is one approved method for the actions required by this paragraph. Repeat the operational test and inspection thereafter at intervals not to exceed 24 months. Note 1: For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.” New Requirements of This AD Operational Test and Inspection
(g)For Dassault Model Falcon 2000EX airplanes: Within 30 days after the effective date of this AD, perform the operational test and detailed inspection of the overwing emergency exit required by paragraph
(f)of this AD. If any discrepancy is detected during any test or inspection required by this paragraph, prior to further flight, repair as required by paragraph (f). Repeat the operational test and inspection at intervals not to exceed 24 months. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, International Branch, 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. Special Flight Permits
(i)Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished. Related Information
(j)EASA airworthiness directives 2006-0147, 2006-0148, 2006-0149, and 2006-0156, all dated June 7, 2006, also address the subject of this AD. Material Incorporated by Reference
(k)None. Issued in Renton, Washington, on February 13, 2008. Stephen P. Boyd, Assistant Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-3403 Filed 2-25-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 91 [Docket No.: FAA-2007-0020; Amdt. No. 91-299] RIN 2120-AJ14 Operation of Civil Aircraft of U.S. Registry Outside of the United States AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This action amends certain regulations governing U.S. registered aircraft operating beyond the territorial airspace of the United States. This action is necessary to correct an error in the recodification of the regulations concerning general operating and flight rules. The intended effect of this action is to correct an inadvertent error in the regulations. DATES: This action is effective February 26, 2008. FOR FURTHER INFORMATION CONTACT: Nancy Lauck Claussen, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone:
(202)267-8166; facsimile
(202)267-5229, e-mail *nancy.l.claussen@faa.gov.* SUPPLEMENTARY INFORMATION: Availability of Rulemaking Documents You can get an electronic copy using the Internet by:
(1)Searching the Federal eRulemaking portal at *http://www.regulations.gov;*
(2)Visiting the FAA's Regulations and Policies Web page at *http://www.faa.gov/regulations_policies/* ; or
(3)Accessing the Government Printing Office's Web page at *http://www.gpoaccess.gov/fr/index.html.* You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling
(202)267-9680. Make sure to identify the amendment number or docket number of this rulemaking. Authority for This Rulemaking The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Acting Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Section 44701(a)(5), General Requirements. Under that section, the FAA is charged with prescribing regulations and minimum standards for other practices, methods, and procedure the Acting Administrator finds necessary for safety in air commerce and national security. This regulation is within the scope of that authority because it addresses operational requirements that support aviation safety. Background In August 1966, the FAA amended 14 CFR part 91 to prescribe rules that apply to civil aircraft of U.S. registry operating outside of the United States. This final rule made the general operating rules of Subpart A and the maintenance rules of Subpart C of Part 91 applicable to U.S. registered civil aircraft operations outside of, as well as within, the United States. ( *See* 31 FR 8354; June 15, 1966.) Section 91.1, Applicability, was amended by adding paragraph (b)(3), which provided that “Each person operating a civil aircraft of U.S. registry outside of the United States shall * * * Except for §§ 91.15(b), 91.17, 91.38, and 91.43, comply with Subparts A and C of this part so far as they are not inconsistent with applicable regulations of the foreign country where the aircraft is operated or Annex 2 to the Convention on International Civil Aviation.” On August 18, 1989, the FAA issued a final rule that recodified Part 91 (54 FR 34284). The purpose of this action was to reorganize and clarify existing rules. 1 The FAA designated new § 91.703—Operations of civil aircraft of U.S. registry outside of the United States, and moved several paragraphs from § 91.1 relating to the operation of U.S. registered aircraft outside the U.S. to the newly established § 91.703. Specifically, paragraph (b)(3) of § 91.1 was moved to § 91.703(a)(3). The FAA did not intend any substantive change to this paragraph. 1 The FAA also made four substantive changes to the regulations during this rulemaking that are not at issue in this rule. As recodified, § 91.703 provides that “Each person operating a civil aircraft of U.S. registry outside of the United States shall * * *
(3)Except for §§ 91.307(b), 91.309, 91.323, and 91.711, comply with this part so far as it is not inconsistent with applicable regulations of the foreign country where the aircraft is operated or annex 2 of the Convention of International Civil Aviation.” Referring to “this part” instead of referring specifically to subparts A and C in part 91 substantively affects the regulatory requirements. Under the current language, except for the four noted exceptions, all the provisions of part 91 apply to U.S. registered aircraft operating outside of the United States. The FAA has reviewed this matter, as it applies to the speed restrictions articulated in § 91.117(a). 2 The current regulatory text of § 91.703(a)(3) makes the speed restrictions of § 91.117(a) applicable to U.S registered civil aircraft when operating outside the United States (and not within a foreign country). We conclude that the final rule in 1989 erroneously changed the requirements and that this result was unintended. This rule corrects that error. The FAA will further review Part 91 to determine whether there are similar issues that need to be addressed. 2 Section 91.117(a) provides that unless otherwise authorized by the Administrator, no person may operate an aircraft below 10,000 feet mean sea level
(MSL)at an indicated airspeed of more than 250 knots (288 m.p.h.). Good Cause for Immediate Adoption of This Final Rule On the basis of the above information, the FAA finds that immediate action is necessary to correct the regulations to accurately depict the agency's intentions. As a practical matter, the FAA is aware that most of the affected industry was unaware of the literal effect of the recodification with respect to the speed restrictions contained in § 91.117(a). Until recently, the FAA was not aware of the error, and has proceeded from an operational perspective that the speed restrictions of § 91.117(a) do not apply to U.S. registered aircraft, via § 91.703(a)(3), when operating outside the U.S. (and not within another country's territorial airspace). 3 3 The FAA's Office of the Chief Counsel realized this issue in issuing an interpretation dated October 12, 2005 to Mr. Michael Di Marco, which concludes appropriately that the speed restriction of § 91.117(a) does in fact apply to U.S. registered civil aircraft when operating over the high seas under the current regulations. This interpretation was reaffirmed on April 10, 2007, in the agency's response to Mr. David Shacknai. Concurrent with the adoption of this final rule, the FAA will rescind the interpretation as it is no longer valid. Because the circumstances described in this notice warrant immediate action by the FAA to correct and accurately depict the regulatory requirements, I find that notice and public comment under 5 U.S.C. 553(b) are impracticable and contrary to the public interest. Further, I find that good cause exists for making this rule effective immediately upon publication. Small Business Regulatory Enforcement Fairness Act The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. Therefore, any small entity that has a question regarding this document may contact their local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT . You can find out more about SBREFA on the Internet at our site, *http://www.faa.gov/regulations_policies/rulemaking/sbre_act/* . Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. We have determined that there is no new information collection requirement associated with this direct final rule. An agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget
(OMB)control number. International Compatibility In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these regulations. Economic Evaluation, Regulatory Flexibility Determination, International Trade Impact Assessment, and Unfunded Mandates Assessment Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). In conducting these analyses, FAA has determined this rule—
(1)Has benefits which do justify its costs, is not a “significant regulatory action” as defined in the Executive Order and is not “significant” as defined in DOT's Regulatory Policies and Procedures;
(2)will not have a significant impact on a substantial number of small entities;
(3)reduces barriers to international trade; and
(4)does not impose an unfunded mandate on state, local, or tribal governments, or on the private sector. These analyses, available in the docket, are summarized below. Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows: Since this final rule merely corrects an inadvertent error in the regulations, the expected outcome will be a minimal impact with positive net benefits, and a regulatory evaluation was not prepared. FAA has, therefore, determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures. Regulatory Flexibility Determination The Regulatory Flexibility Act of 1980 (Pub. L. 96-354)
(RFA)establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear. This final rule corrects an inadvertent error in the regulations. Its economic impact is minimal. Therefore, we certify that this action will not have a significant economic impact on a substantial number of small entities. Therefore, as the FAA Acting Administrator, I certify that this final rule will not have a significant economic impact on a substantial number of small entities. International Trade Impact Assessment The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and has determined that it will impose no costs on domestic and international entities and thus has a neutral trade impact. Unfunded Mandates Assessment Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $128.1 million in lieu of $100 million. This final rule does not contain such a mandate. Executive Order 13132, Federalism The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, we determined that this final rule does not have federalism implications. Environmental Analysis FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this proposed rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances. Regulations That Significantly Affect Energy Supply, Distribution, or Use The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. List of Subjects in 14 CFR Part 91 Air traffic control, Aircraft, Airmen, Aviation safety, Reporting and recordkeeping requirements. The Amendment In consideration of the foregoing, the Federal Aviation Administration amends Chapter I of Title 14, Code of Federal Regulations as follows: PART 91—GENERAL OPERATING AND FLIGHT RULES 1. The authority citation for part 91 continues to read as follows: Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180). 2. Amend § 91.703 by revising paragraph (a)(3) to read as follows: § 91.703 Operations of civil aircraft of U.S. registry outside of the United States.
(a)* * *
(3)Except for §§ 91.117(a), 91.307(b), 91.309, 91.323, and 91.711, comply with this part so far as it is not inconsistent with applicable regulations of the foreign country where the aircraft is operated or annex 2 of the Convention on International Civil Aviation; and Issued in Washington, DC on February 15, 2008. Robert A. Sturgell, Acting Administrator. [FR Doc. E8-3583 Filed 2-25-08; 8:45 am] BILLING CODE 4910-13-P NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 14 CFR Part 1266 [NOTICE: (08-014)] RIN 2700-AB51 Cross-Waiver of Liability AGENCY: National Aeronautics and Space Administration. ACTION: Final rule. SUMMARY: The National Aeronautics and Space Administration
(NASA)is amending its regulations which provide the regulatory basis for cross-waiver provisions used in the following two categories of NASA agreements: agreements for International Space Station
(ISS)activities pursuant to the “Agreement Among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America concerning Cooperation on the Civil International Space Station” (commonly referred to as the ISS Intergovernmental Agreement, or IGA); and launch agreements for science or space exploration activities unrelated to the ISS. DATES: *Effective Date:* These amendments become effective April 28, 2008. FOR FURTHER INFORMATION CONTACT: Steven A. Mirmina, Senior Attorney, Office of the General Counsel, NASA Headquarters, 300 E Street, SW., Washington, DC 20546; telephone: 202/358-2432; e-mail: *steve.mirmina@nasa.gov.* SUPPLEMENTARY INFORMATION: I. Background On October 23, 2006, NASA published a notice of proposed rulemaking (NPRM), Cross-Waiver of Liability, 71 FR ( **Federal Register** ) 62061 (October 23, 2006), which discussed the background of Part 1266 and the use of cross-waivers in various NASA agreements. The NPRM also explained the considerations underlying NASA's proposed amendments to Part 1266, which were:
(1)To update and ensure consistency in the use of cross-waiver of liability provisions in NASA agreements; and
(2)to address shifts in areas of NASA mission and program emphases that warrant an adjustment of the NASA cross-waiver provisions so that they remain current. II. Description of Final Rule and Discussion of Comments In this Final Rule, NASA makes clerical edits to the wording in sections 1266.100 (Purpose) and 1266.101 (Scope). In sections 1266.102 (Cross-waiver of liability for agreements for activities related to the International Space Station) and 1266.104 (Cross-waiver of liability for launch agreements for science or space exploration activities unrelated to the International Space Station), NASA generally makes clerical changes, adds a new definition of the term “transfer vehicle,” defines the term “Party” in section 1266.102 and revises the term's definition in section 1266.104, clarifies the scope of the sixth group of potential claims to which the cross-waiver of liability shall not apply, and deletes the specific reference to Expendable and Reusable Launch Vehicles (ELVs and RLVs, respectively) from section 1266.104. In response to the NPRM of October 23, 2006, NASA received comments from four entities: The Boeing Company (Boeing); Marsh USA, Inc. (Marsh); United Space Alliance (USA); and the European Space Agency, which subsequently withdrew its comments. In general, the commenters supported the proposed amendments, but with several suggested changes. The commenters also submitted some general questions about the Rule. In an effort to provide additional information on its intentions and plans, NASA will address these questions in section M in this document. A. Deleting Section 14 CFR 1266.103 In the NPRM, NASA proposed deleting section 1266.103, regarding the cross-waiver of liability during Space Shuttle (Shuttle) operations, in light of direction from President George W. Bush that the Shuttle be retired from service by 2010 and the fact that, with the exception of the fifth Hubble Servicing Mission, currently scheduled for August 2008, current mission plans envision no other Shuttle missions unrelated to the ISS. Because the ISS cross-waiver in section 1266.102 covers Shuttle operations for missions to the ISS, NASA determines that there is no longer a need to retain the section of Part 1266 requiring a separate cross-waiver of liability to be used during Shuttle operations. The commenters urged NASA to retain section 1266.103 for as long as Shuttle operations continue and prime contracts and subcontracts with cross-waiver and indemnity provisions remain in place. The commenters contend that although current mission plans envision no other non-ISS missions for the Shuttle, those plans could change and therefore it would be premature to delete section 1266.103. One commenter noted that the Shuttle program “may be extended for up to an additional five years if the options under the current Space Program Operations Contract are fully exercised, with unknown missions into the future.” (Marsh at page 2) Having reviewed and considered the points raised by the commenters, NASA will proceed with the removal of section 1266.103 for several legal and policy reasons. With the exception of the fifth Hubble Servicing Mission, NASA has stated that the remaining Shuttle flights will be dedicated solely to ISS missions. 1 Since any NASA agreements for Shuttle missions to the ISS would already be covered by section 1266.102, which governs cross-waivers of liability for agreements for activities related to ISS, there is no longer a need to retain section 103. 1 See, for example, the Written Statement of Michael D. Griffin, Administrator, National Aeronautics and Space Administration, Before the Senate Commerce, Science and Transportation Committee—Subcommittee on Space, Aeronautics, and Related Sciences, November 15, 2007. Indeed, for future missions, retention of section 103 could potentially result in less-than-fully reciprocal waivers of liability among users involved in Shuttle launch activities (since the scope of “Protected Space Operations” under section 103 is broader than the scope of “Protected Space Operations” under section 102). Under section 103, the cross-waiver encompasses parties to any NASA agreement for Shuttle launch services; however, the cross-waiver established by the IGA, and implemented by section 102, encompasses only parties to agreements for ISS activities. If NASA were to prolong the use of cross-waivers under section 103 for non-ISS Shuttle missions, while parties to agreements for Shuttle missions to the ISS remain bound by cross-waivers under section 102, parties to agreements for the non-ISS missions would be waiving claims against ISS participants but, conversely, ISS participants would not necessarily be waiving claims against them. The potential for less than fully reciprocal waivers has existed since the Rule first went into effect in 1991, but has resulted in no actual conflicts. This is due primarily to the fact that the Shuttle was rapidly transitioned from performing orbital missions on a cooperative or reimbursable basis to being dedicated almost exclusively to ISS assembly. However, the potential existence of less-than-fully reciprocal waivers should not continue. Section 309 of the Space Act, 2 codified at 42 U.S.C. § 2458c, confirms and clarifies the authority of the NASA Administrator to conclude reciprocal cross-waivers in cooperative agreements. To reduce the potential for inconsistency among NASA mission agreements containing cross-waiver provisions of differing scope, NASA has decided to remove section 103. 2 The National Aeronautics and Space Act of 1958, as amended, 42 U.S.C. 2451, *et seq.* Although NASA has stated that, with the exception of the Hubble Servicing Mission, the Shuttle is to be used solely for servicing the ISS (and, thus, all NASA agreement cross-waivers for ISS Shuttle missions will be based on the provisions of section 102), the question remains: what would NASA do if the Agency is subsequently authorized to use the Shuttle for an activity unrelated to the ISS? In this hypothetical case, the provisions of section 104, which provide the regulatory basis for cross-waivers of liability for launch agreements for science or space exploration activities unrelated to the ISS, could be utilized. NASA is mindful of the concerns raised by industry relative to maintaining stability in Shuttle contracts. In this regard, for as long as Shuttle operations continue and prime contracts and subcontracts remain in place, the risk allocation provisions of those contracts, like all other provisions of those contracts, will continue to be operative. With respect to NASA's implementation of changes to the NASA procurement regulations, the Proposed Rule provided that, “To be made fully effective, the cross-waivers required by this Part will necessitate concomitant changes to NASA procurement regulations. NASA plans to implement these changes as expeditiously as possible after this Proposed Rule becomes final.” In response to the NPRM, NASA was asked whether there is a schedule for implementation of the changes to the corresponding clauses in the NASA Federal Acquisition Regulation
(FAR)Supplement
(NFS)to reflect the current revisions to 14 CFR 1266. NASA plans to alter the NASA procurement regulations, i.e., the NFS, soon after this Rule becomes final. B. Defining the Term “Party” in Section 1266.102 NASA received the comment that the term “Party” in section 1266.102 was not defined and that a definition was necessary to apply the cross-waiver requirements to NASA ISS contractors. The comment suggested that the term “Party” be defined as follows: “ `Party' means a person or entity that signs an agreement involving the ISS.” NASA agrees that defining the term “Party” in section 1266.102 would add clarity to the Rule. Thus, NASA will define the term “Party” in 1266.102 as follows: “The term `Party' means a party to a NASA agreement involving activities in connection with the ISS.” The definition will be placed in subsection 1266.102(b)(1) in order to make parallel the order of definitions in section 1266.102 and in section 1266.104. The definition of the term “Partner State,” which was formerly located in 1266.102(b)(1), will be moved to a new subsection 1266.102(b)(8). C. Tailoring the Scope of the Cross-waiver NASA received the comment that subsections 1266.102(a) and 1266.104(a) contain a misleading sentence: “Provided that the waiver of claims is reciprocal, the parties may tailor the scope of the cross-waiver clause in these agreements to address the specific circumstances of a particular cooperation.” The commenter contended that this sentence is not clear and could lead to inconsistent waivers in NASA agreements. NASA understands the concern and will strike the sentence proposed in the NPRM. As background, the authority to tailor cross-waiver provisions is a feature of certain framework agreements between the U.S. and other countries for cooperation in the exploration and use of outer space. These international agreements cover a wide range of activities, ranging from launching missions into outer space to simple terrestrial activities (e.g., exchanges of data). For a simple terrestrial data exchange, it is not necessary to utilize a cross-waiver provision as extensive as what would be needed in an agreement to launch a spacecraft and, thus, in the context of a framework agreement, the sentence is appropriate. However, for purposes of this Rule, which addresses high-risk launches to, and operations in, outer space, NASA agrees with the commenters on the need for consistent cross-waivers in this specific area. D. Relocating the Sentence Regarding the Term “Related Entity” NASA received the comment that the following sentence was misplaced in subsection 1266.102(b)(2)(iii): “The term `related entity' may also apply to a State, or an agency or institution of a State, having the same relationship to a Partner State as described in paragraphs (b)(2)(i) through (b)(2)(iii) of this section or otherwise engaged in the implementation of Protected Space Operations as defined in paragraph (b)(3)(iv) of this section.” The comment pointed out that the sentence may have been erroneously inserted into subparagraph (b)(2)(iii) before the final sentence of that subparagraph “* * * The term ‘contractors’ and ‘subcontractors’ include suppliers of any kind.” The comment suggested that it should follow subparagraph
(iii)as a separate statement or subparagraph. NASA agrees with the comment and has revised the Rule as suggested. The sentence defining contractors and subcontractors to include suppliers serves as a general clarification of the term “related entity” and should stand alone, thus, applying to all three subsections, rather than being included as part of one of the subsections as formerly drafted. NASA will also make a corresponding change in subsection 1266.104(b)(2). E. Clarifying “This Agreement” Versus “the Agreement” NASA received the comment that the use of the term “this Agreement” was confusing in subsection 1206.102(c)(4)(ii) in the parenthetical language to the second exception of the cross-waiver, i.e., “Claims made by a natural person, his/her estate, survivors or subrogees (except when a subrogee is a Party to this Agreement or is otherwise bound by the terms of this cross-waiver)* * *” (italics added) The term “this Agreement” appears in a related context in subsection 1206.104(c)(4)(ii). The comment queried whether the word “Agreement” should be capitalized and whether it should be a defined term. NASA understands the source of this confusion and will correct both sections to read “the agreement” rather than “this Agreement,” as recommended by the comment. It may be useful in this context to recall a principal purpose of this Rule. Rather than prescribing standard text to be inserted automatically into a NASA agreement, the regulation instead provides the regulatory basis for cross-waiver clauses to be incorporated into NASA agreements either related to the ISS (section 102) or for launch agreements involving science or space exploration activities unrelated to the ISS (section 104). As such, when a specific cross-waiver is incorporated into a NASA agreement, several conforming changes will need to be made to the text as it appears in this Rule. For one, references in the Rule to “the agreement” (referring to a NASA agreement in which a cross-waiver provision will be inserted) will need to be changed to “this Agreement” in the text of the agreement itself. It seems unnecessary to define the term “the agreement,” because it should be evident that the agreement being referred to is the Space Act agreement containing the cross-waiver. In this context, it may also be useful to clarify that the agreements to which this Rule applies are agreements concluded pursuant to NASA's authority under sections 203(c)(5) and (c)(6) of the Space Act. These agreements do not include procurement contracts governed by the Federal Acquisition Regulations System, 48 CFR Part 1 *et seq.* F. Defining the Terms “ELV” and “RLV” Another comment NASA received recommended that the definition of “launch vehicle” found in 1266.104(b)(4) be amended to specifically include ELVs and RLVs. After further consideration, NASA has determined that the proposed change is unnecessary. The term “launch vehicle” is defined as “an object or any part thereof intended for launch, launched from Earth, or returning to Earth which carries payloads or persons or both.” ELVs and RLVs are already included in this definition. A fundamental premise of NASA cross-waivers of liability is that they are to be broadly construed to achieve the desired objectives of furthering space exploration, use, and investment. One way to further this goal is to avoid unnecessary, narrow delineations in terminology. For example, the term “Expendable Launch Vehicles” should encompass Evolved Expendable Launch Vehicles (EELV). An EELV is one type of ELV. Similarly, ELVs and RLVs, for that matter, are types of launch vehicles. Thus, there appears to be no compelling reason why ELVs and RLVs should be separately defined. Indeed, the comment prompted reexamination of the title to section 1226.104 which, at the Proposed Rule stage, was “Cross-waiver of liability for science and space exploration agreements for missions launched by Expendable Launch Vehicles or Reusable Launch Vehicles.” In order to streamline the Rule and avoid unnecessary, narrow delineations in terminology, NASA has decided to delete the reference in section 1266.104 to whether vehicles launching science or space exploration missions are expendable or reusable. Two factors led to this conclusion:
(1)NASA would utilize the same cross-waiver for science or space exploration missions unrelated to the ISS, irrespective of the type of vehicle selected to launch the mission into orbit; and
(2)NASA has no current plans to develop a fully reusable launch vehicle. Although the Shuttle has both expendable and reusable components, technically the vehicle is neither an Expendable nor a fully Reusable Launch Vehicle. Vehicles being developed in the Constellation program will utilize a mix of reusable and expendable components. Thus, the title of section 1266.104 has been changed to “Cross-waiver of liability for launch agreements for science or space exploration activities unrelated to the International Space Station.” This formulation closely parallels the title to section 1266.102 “Cross-waiver of liability for agreements for activities related to the International Space Station.” Deletion of the reference to the specific type of vehicle used to launch a science or space exploration mission into orbit necessitates a corresponding change to the definition of “Party” in section 104, as is explained in section G. G. Revising the Term “Party” in Section 1266.104 As mentioned in the previous section, NASA will alter the definition of the term “Party” to reflect the deletion of the reference to ELVs and RLVs from section 104 and clarify the Rule's application. Thus, NASA will revise the definition proposed in the NPRM as follows: “The term `Party' means a party to a NASA agreement for science or space exploration activities unrelated to the ISS that involve a launch.” Secondly, in response to the NPRM, NASA received a comment which suggested that the definition of the term “Party” in section 1266.104 be revised from “a party to a NASA agreement* * *” to read “person or entity.” While the rationale for the comment is not entirely clear, it appears that the comment may be confusing the term “Party” with subsequent references to “persons” or “entities” referenced later in the Rule, i.e., in the terms of the actual cross-waiver found in subsection (c)(1) “This cross-waiver shall apply only if the person, entity, or property causing the damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations” (emphasis added). The terms are distinct. A “Party” is a defined term—a party to a NASA agreement. However, entities other than parties to NASA agreements could potentially be injured by a particular activity. For this reason, the cross-waiver is carefully constructed to identify those within its scope. The terms “persons” or “entities” are descriptive and generic; they refer to persons (real or juridical) who may be involved in or brought into Protected Space Operations by virtue of their activities. H. Clarifying the Duration of “Protected Space Operations” NASA received the identical comment from Boeing, Marsh, and USA that, in subsection 1266.104(b)(6), NASA should not proceed with removal of the following sentence: “Protected Space Operations begins at the signature of the agreement and ends when all activities done in implementation of the agreement are completed.” All three commenters asserted that this change should be rejected, because “[t]his restricts the scope of cross-waivers for the protection of NASA ELV or RLV contractors and sub-contractors.” (See USA comments at page 5, Marsh comments at page 4, and Boeing comments at page 2.) NASA accepts these suggestions and will retain the sentence in the Final Rule. The proposed deletion had been grounded in recognition that, as a general matter, the cross-waiver in any NASA agreement becomes effective, like all terms of any agreement unless otherwise specified, at the time the agreement itself becomes effective and ends upon termination or expiration of the agreement. However, the sentence is useful in clarifying that the obligations of the agreement's cross-waiver will survive expiration or termination of the agreement itself, since Protected Space Operations does not end until all activities done in implementation of the agreement are completed. Although NASA agreements typically include a “Continuing Obligations” clause recognizing that certain obligations of the parties, including those related to liability and risk of loss, shall continue to apply after expiration or termination of the agreement, it is useful to retain this express acknowledgement in the text of the waiver itself. I. Defining the Term “Transfer Vehicle” In subsection 1266.104(b)(6)(i), “Protected Space Operations” is defined to include: “Research, design, development, test, manufacture, assembly, integration, operation, or use of launch *or transfer vehicles* , payloads, or instruments, as well as related support equipment and facilities and services.” (Emphasis supplied.) One comment recommended that the term “transfer vehicle” required definition. The comment contended that a clarification would enhance understanding of the Rule and its applicability to other vehicles being developed under the Constellation program and otherwise. In the current definition section, the term “launch vehicle” (defined as “an object or any part thereof intended for launch, launched from Earth, or returning to Earth which carries payloads or persons, or both”) addresses vehicles that operate between the Earth and space, but does not address vehicles intended to operate solely in outer space. NASA agrees that defining the term “transfer vehicle” would add clarity to the Rule. Moreover, as a logical corollary of defining transfer vehicles, NASA has decided to clarify the Rule's application to landers. NASA's planned successor to the Shuttle, the Orion spacecraft, would feature, for its lunar landing missions, a Lunar Surface Access Module (LSAM). In NASA's view, when the LSAM or any transfer vehicle is launched, it would be a payload and, thus, within the existing definition of Protected Space Operations. The term “payload” is broadly defined to include “all property to be flown or used on or in a launch vehicle.” However, when a lander or transfer vehicle becomes operational, it could no longer be considered a “payload” but, rather, a space vehicle. NASA will insert the following new definition of “transfer vehicle” in subsection 1266.104(b)(9): “The term ‘transfer vehicle’ means any vehicle that operates in space and transfers payloads or persons or both between two different space objects, between two different locations on the same space object, or between a space object and the surface of a celestial body. A transfer vehicle also includes a vehicle that departs from and returns to the same location on a space object.” Pursuant to this definition, a “transfer vehicle” would include a lander that had become operational, since landers operate between a space object and the surface of a celestial body. Before it becomes operational, the lander would be considered a payload. For purposes of this Rule, it is not necessary to define the precise point when the LSAM becomes operational, because it would be within Protected Space Operations at launch as a payload and then, subsequently, as a transfer vehicle. In either case, it would fall within the definition of Protected Space Operations. Since NASA does intend that this Rule apply to current and future NASA mission agreements, including vehicles still to be developed under the Constellation program, the definition of Protected Space Operations will be amended to include a reference to transfer vehicles, since operational transfer vehicles would be neither launch vehicles nor payloads. Thus, the Final Rule makes minor changes to the definition of “Protected Space Operations” in both subsections 1266.102(b)(6) and 1266.104(b)(6) for accuracy and consistency. For subsection 1266.102(b)(6), the definition of “Protected Space Operations” will be changed from “* * * all launch vehicle activities, ISS activities, and payload activities on Earth, in outer space, or in transit between Earth and outer space in implementation of the IGA * * *” to “all launch *or transfer* vehicle activities, ISS activities, and payload activities on Earth, in outer space, or in transit between Earth and outer space in implementation of the IGA * * *” with the addition of the words “or transfer” between the words “launch” and “vehicle.” As the term “transfer vehicle” has been used but not defined in section 1266.102, NASA will create a new subsection 1266.102(b)(7) adding the above definition of “transfer vehicle” to the ISS section of this Rule. For subsection 1266.104(b)(6), the definition of “Protected Space Operations” will be changed from: “* * * all ELV or RLV activities and payload activities on Earth, in outer space, or in transit between Earth and outer space in implementation of an agreement for launch services * * *” to “* * * all *launch or transfer vehicle* activities and payload activities on Earth, in outer space, or in transit between Earth and outer space in implementation of an agreement for launch services * * * .” J. Capitalizing the Word “Agreement” in Subsection 1266.104(b)(6)(ii) NASA received the comment that the word “Agreement” in subsection 1266.104(b)(6)(ii) should not be capitalized. NASA agrees with the comment and will remove the initial capital letter in the following sentence: “The term `Protected Space Operations' excludes activities on Earth that are conducted on return from space to develop further a payload's product or process for use other than for activities within the scope of an Agreement for launch services.” The term “Agreement” in that sentence will be changed to lowercase—this provision parallels the definition of the term “Protected Space Operations” of section 1266.102 in regard to ISS products or processes. Removal of the capitalization of the word “Agreement” is also elaborated above, in section E, and the reader is referred to that section for further discussion. K. Rewording the Sixth Exception to the Cross-waiver In NASA's experience, the wording of the sixth exception to the cross-waiver has occasionally raised questions on the part of NASA's agreement partners and contractors regarding the purpose and scope of the exception. Subsections 1266.102(c)(4)(vi) and 1266.104(c)(4)(vi) had each provided that, notwith-standing the other provisions of the section, the cross-waiver of liability shall not be applicable to “Claims by or against a Party arising out of or relating to the other Party's failure to meet its contractual obligations set forth in the Agreement.” The Final Rule seeks to clarify the exception. The purpose of the exception is to avoid any interpretation that the cross-waiver would be a defense to a claim arising from a party's failure to perform any obligation set forth in an agreement. The waiver cannot be used by a party as a means of shielding itself from claims for nonperformance. To clarify this point, NASA will replace the current formulation found in the sixth exception to the cross-waiver with the following: “(vi) Claims by a Party arising out of or relating to another Party's failure to perform its obligations under the agreement.” L. Clarifying the Scope of the Cross-waiver in Section 1266.104(c)(1) In reviewing the NPRM, NASA noticed a minor omission in the wording of the cross-waiver in 1266.104(c)(1) that occurred during the editing/publication process. The words “whatever the legal basis for such claims” were inadvertently omitted from the first part of the sentence. Thus, they will be returned to the text to ensure that the waiver in 1266.104(c)(1) closely parallels the ISS waiver in 1266.102(c)(1). Thus, that part of the sentence in its entirety will read: “The cross-waiver shall apply to any claims fordamage, whatever the legal basis for such claims, against: * * *.” This change is a clarification and not a substantive change. The sentence previously stated that “the cross-waiver shall apply to any claims for damage against: * * *.” The modification underscores that the words “any claims for damage” mean any claims, whatever their legal basis. M. Responding to General Questions Received Although NASA has no obligation to respond to questions received in response to the NPRM, NASA appreciates the opportunity to answer the questions that were submitted and provide additional explanation regarding certain aspects of the Rule. 1. Will NASA extend this Rule to neighboring launch vehicle or launch site operators? NASA received the following question: Since NASA is expanding the scope of the cross-waiver in section 104 to address comanifested payloads on the same vehicle, “* * * why not extend the cross-waivers to all NASA contractors/subcontractors involved in ELV or RLV activities on the same launch site?” (USA comments at page 2) As background, launch operators of different launches often work in close proximity at a single launch site. For example, when launch operator A launches from one launch pad, launch operator B may be within the impact limit lines or a hazard area created by the launch. Nonetheless, for security or mission assurance reasons, launch operator B may wish to keep some of its personnel working at the second launch pad, even during the launch of launch operator A's launch vehicle. The Federal Aviation Administration
(FAA)has studied thoroughly the issue of neighboring launch operators. In the above example, the FAA considers that the launch operators are engaged in activities in support of separate launches. Furthermore, the launch operators share no privity of contract for the launch that is about to take place. “For these reasons, the FAA treats them as ‘the public' with respect to each other.” 3 In the regulations which govern licensing and safety requirements for operation of a launch site (14 CFR 420.5), the FAA defines the “public” as “people and property that are not involved in supporting a licensed launch, and includes those people and property that may be located within the boundary of a launch site, * * * and any other launch operator and its personnel.” To ensure consistency, NASA will utilize the same approach, particularly in light of the possibility that an FAA-licensed commercial launch and a NASA program launch could occur at the same site. Thus, absent any contractual relationship between the launch operators for the separate launch activities at issue (and, thus, absent any effective cross-waiver), NASA will consider neighboring launch operators to be members of the public with respect to each other. As a result, any claims by or against them would be outside the scope of the cross-waiver. 3 See Department of Transportation, Federal Aviation Administration, Licensing and Safety Requirements for Launch, Supplemental Notice of Proposed Rulemaking, **Federal Register:** July 30, 2002 (Volume 67, Number 146) at page 49475. 2. Are individual employees waiving their claims? In both subsections 1266.102(c)(1)(iv) and 1266.104(c)(1)(iv), the Rule provides that the cross-waiver shall apply to any claims for damage, whatever the legal basis for such claims, against “* * * the employees of any of the entities identified in paragraphs (c)(1)(i) through (c)(1)(iii) of this section.” NASA received the following questions: “Does this language mean that employees of an entity (or their survivors) cannot sue another Party? Doesn't this say that, by virtue of employment, the employee waives rights that it otherwise would have?” (USA comments at page 3) The answer to both questions is “no.” The quoted language in no way affects the rights of any employee (or the employee's survivors) to present a claim for damage. By its terms, the language states that it is limited to claims against employees of the entities listed in subsections (c)(1)(i) through (c)(1)(iii) (emphasis added). Claims of or by an individual are not extinguished. In fact, claims of an individual are specifically excluded from the cross-waiver's scope by virtue of subsection (c)(4)(ii), which provides: This cross-waiver shall not be applicable to “* * * claims made by a natural person, his/her estate, survivors or subrogees * * * ” Thus, no individual employee's claims are barred under the Rule's language. This was the case under the original Rule published in 1991, and it remains so. 3. Will this Rule apply to the COTS program? NASA was asked whether the cross-waiver will apply to NASA's Commercial Orbital Transportation Services
(COTS)program. Announced on January 18, 2006, COTS is a NASA program that provides financial and other assistance to selected commercial launch companies with the goal of fostering a competitive market for resupplying the International Space Station. First, NASA's cross-waiver Rule states explicitly that the cross-waiver will not be applicable when 49 U.S.C. Subtitle IX, Chapter 701 is applicable. See subsections 1266.102(c)(6) and 1266.104(c)(6). 49 U.S.C. Subtitle IX, Chapter 701 is popularly referred to as the Commercial Space Launch Act. Second, on August 18, 2006, NASA's Exploration Systems Mission Directorate announced that Space Exploration Technologies (SpaceX) and Rocketplane Kistler
(RpK)were each winners for Phase I of the COTS program. NASA executed a funded agreement under the Space Act with each of the companies. For launch and re-entry, the agreements recognize that the cross-waiver and insurance requirements of the FAA license and permit process will govern the allocation of risks and liability of the U.S. Government, including NASA. However, both agreements also require the COTS participant to demonstrate rendezvous, proximity operations, docking or berthing, or other activities that are related to, or which could affect, the ISS. Thus, to the extent that the FAA licenses or permits do not apply to activities under the agreements, such as during on-orbit activities, and to the extent that such activities are related to the ISS, the provisions of this Rule regarding NASA's cross-waiver for ISS activities will apply. At such time as it becomes possible for NASA to acquire from a commercial provider the delivery to and return of crew and cargo from the ISS, NASA would contract for such services consistent with applicable procurement regulations, including the cross-waiver requirements of the NASA FAR Supplement (NFS), as discussed above in section A. 4. Does the term “related entity” include related legal entities of a contractor or subcontractor? NASA received a question from USA regarding the scope of the term “related entity.” In subsections 1266.102(b)(2) and 1266.104(b)(2), given that the term “related entity” includes a contractor or subcontractor at any tier, the submitter asked, “Does the reference to a ‘contractor or subcontractor' include the related legal entities of the contractor or subcontractor? For example, is a subsidiary able to sue another ‘party' since such entity is not the ‘entity' that actually has a contract that would incorporate the cross-waiver?” (USA comments at page 2) Absent additional facts, under NASA's original cross-waiver regulation from 1991, there is nothing to indicate that an entity's parent or subsidiary would fall within the scope of the term “related entity.” The term “related entity” is defined under sections 102 and 104 of the Rule as, “a contractor or subcontractor of a Party at any tier; a user or customer of a Party at any tier; or a contractor or subcontractor of a user or customer of a Party at any tier.” However, the structure of the space launch industry has undergone significant change since the Rule was first published in 1991. Many contractors in the space business are utilizing alternative forms of business relationships. For example, USA is NASA's prime contractor for Shuttle and ISS operations. Established in 1996 as a limited liability company (LLC), USA is owned by The Boeing Company and Lockheed Martin Corporation in equal share. USA's primary business is operating and processing NASA's Shuttle fleet and the ISS at the Johnson and Kennedy Space Centers. This work is currently defined by the Space Program Operations Contract between NASA and USA. The contract runs from October 1, 2006, through September 30, 2010, which is the currently scheduled termination date for Shuttle operations. The contract includes five, one-year options that could extend the contract through Fiscal Year 2015—options intended for ISS operations and Shuttle close out activities. A second example of the changing nature of the space launch business can be seen in United Launch Alliance (ULA), which is a joint venture between Boeing and Lockheed Martin. ULA operates space launch systems for U.S. Government customers using the Atlas V, Delta II, and Delta IV launch vehicles. Considering this evolving launch industry structure, there are foreseeable circumstances in which a party's parent or subsidiary may be considered a “related entity.” For example, where a parent or subsidiary corporation has loaned equipment to a NASA contractor or subcontractor and the equipment is subsequently damaged as a result of activities under a NASA agreement, there may well be a contractual arrangement between the companies under which the equipment transfer occurred. If no actual contract exists, such a loan of equipment alternatively could be construed as a bailment. In either circumstance, the parent or subsidiary could be considered a lower-tier NASA contractor or subcontractor and, thus, within the current definition of “related entity.” Under such circumstances, assuming that the entities causing and sustaining the damage were thereby engaged in activities within the scope of “Protected Space Operations,” a claim of the parent or subsidiary would be waived. In essence, USA's question relates to the circumstances in which a party involved in activities pursuant to a NASA agreement should extend the cross-waiver to parents, subsidiaries, and other related legal entities. The answer to the question is found in the terms of the cross-waiver clause. While section (c)(1) of the clause contains the terms of the waiver, section (c)(2) of the clause obligates the party agreeing to the terms of section (c)(1) to extend those terms to the party's related entities. Whether a party is obliged to extend the cross-waiver to parents or subsidiaries will always depend on the specific facts of the cooperation. A related entity may be a parent, subsidiary, shareholder, partner, joint venture participant, or the like, if that entity is involved in Protected Space Operations under a NASA agreement. What makes a parent or subsidiary company a related entity is not its legal or corporate affiliation with a party, but rather its actions in becoming involved in Protected Space Operations under a NASA agreement. If a parent or subsidiary is not involved in Protected Space Operations, then there is no obligation for a party to extend (or “flow down”) the cross-waiver to them. In such a circumstance, if a parent or subsidiary were not involved in Protected Space Operations and yet were to suffer damage as a true third party, then its claims for damage would not be barred by the cross-waiver. List of Subjects in 14 CFR Part 1266 Space transportation and exploration. III. The Amendment In consideration of the foregoing, the National Aeronautics and Space Administration revises Part 1266 of Title 14, Code of Federal Regulations, to read as follows: PART 1266—CROSS-WAIVER OF LIABILITY Sec. 1266.100 Purpose. 1266.101 Scope. 1266.102 Cross-waiver of liability for agreements for activities related to the International Space Station. 1266.103 [Reserved] 1266.104 Cross-waiver of liability for launch agreements for science or space exploration activities unrelated to the International Space Station. Authority: 42 U.S.C. 2458c and 42 U.S.C. 2473 (c)(1), (c)(5) and (c)(6). § 1266.100 Purpose. The purpose of this Part is to ensure that consistent cross-waivers of liability are included in NASA agreements for activities related to the ISS and for NASA's science or space exploration activities unrelated to the ISS that involve a launch. § 1266.101 Scope. The provisions at § 1266.102 are intended to implement the cross-waiver requirement in Article 16 of the intergovernmental agreement entitled, “Agreement Among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America concerning Cooperation on the Civil International Space Station (IGA).” Article 16 establishes a cross-waiver of liability for use by the Partner States and their related entities and requires that this reciprocal waiver of claims be extended to contractually or otherwise-related entities of NASA by requiring those entities to make similar waivers of liability. Thus, NASA is required to include IGA-based cross-waivers in agreements for ISS activities that fall within the scope of “Protected Space Operations,” as defined in § 1266.102. The provisions of § 1266.102 provide the regulatory basis for cross-waiver clauses to be incorporated into NASA agreements for activities that implement the IGA and the memoranda of understanding between the United States and its respective international partners. The provisions of § 1266.104 provide the regulatory basis for cross-waiver clauses to be incorporated into NASA launch agreements for science or space exploration activities unrelated to the ISS. § 1266.102 Cross-waiver of liability for agreements for activities related to the International Space Station.
(a)The objective of this section is to implement NASA's responsibility to flow down the cross-waiver of liability in Article 16 of the IGA to its related entities in the interest of encouraging participation in the exploration, exploitation, and use of outer space through the International Space Station (ISS). The IGA declares the Partner States' intention that the cross-waiver of liability be broadly construed to achieve this objective.
(b)For the purposes of this section:
(1)The term “Party” means a party to a NASA agreement involving activities in connection with the ISS. (2)(i) The term “related entity” means:
(A)A contractor or subcontractor of a Party or a Partner State at any tier;
(B)A user or customer of a Party or a Partner State at any tier; or
(C)A contractor or subcontractor of a user or customer of a Party or a Partner State at any tier.
(ii)The terms “contractor” and “subcontractor” include suppliers of any kind.
(iii)The term “related entity” may also apply to a State, or an agency or institution of a State, having the same relationship to a Partner State as described in paragraphs (b)(2)(i)(A) through (b)(2)(i)(C) of this section or otherwise engaged in the implementation of Protected Space Operations as defined in paragraph (b)(6) of this section.
(3)The term “damage” means:
(i)Bodily injury to, or other impairment of health of, or death of, any person;
(ii)Damage to, loss of, or loss of use of any property;
(iii)Loss of revenue or profits; or
(iv)Other direct, indirect, or consequential damage.
(4)The term “launch vehicle” means an object, or any part thereof, intended for launch, launched from Earth, or returning to Earth which carries payloads or persons, or both.
(5)The term “payload” means all property to be flown or used on or in a launch vehicle or the ISS.
(6)The term “Protected Space Operations” means all launch or transfer vehicle activities, ISS activities, and payload activities on Earth, in outer space, or in transit between Earth and outer space in implementation of the IGA, MOUs concluded pursuant to the IGA, and implementing arrangements. It includes, but is not limited to:
(i)Research, design, development, test, manufacture, assembly, integration, operation, or use of launch or transfer vehicles, the ISS, payloads, or instruments, as well as related support equipment and facilities and services; and
(ii)All activities related to ground support, test, training, simulation, or guidance and control equipment and related facilities or services. “Protected Space Operations” also includes all activities related to evolution of the ISS, as provided for in Article 14 of the IGA. “Protected Space Operations” excludes activities on Earth which are conducted on return from the ISS to develop further a payload's product or process for use other than for ISS-related activities in implementation of the IGA.
(7)The term “transfer vehicle” means any vehicle that operates in space and transfers payloads or persons or both between two different space objects, between two different locations on the same space object, or between a space object and the surface of a celestial body. A transfer vehicle also includes a vehicle that departs from and returns to the same location on a space object.
(8)The term “Partner State” includes each Contracting Party for which the IGA has entered into force, pursuant to Article 25 of the IGA or pursuant to any successor agreement. A Partner State includes its Cooperating Agency. It also includes any entity specified in the Memorandum of Understanding
(MOU)between NASA and the Government of Japan to assist the Government of Japan's Cooperating Agency in the implementation of that MOU. (c)(1) Cross-waiver of liability: Each Party agrees to a cross-waiver of liability pursuant to which each Party waives all claims against any of the entities or persons listed in paragraphs (c)(1)(i) through (c)(1)(iv) of this section based on damage arising out of Protected Space Operations. This cross-waiver shall apply only if the person, entity, or property causing the damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations. The cross-waiver shall apply to any claims for damage, whatever the legal basis for such claims, against:
(i)Another Party;
(ii)A Partner State other than the United States of America;
(iii)A related entity of any entity identified in paragraph (c)(1)(i) or (c)(1)(ii) of this section; or
(iv)The employees of any of the entities identified in paragraphs (c)(1)(i) through (c)(1)(iii) of this section.
(2)In addition, each Party shall, by contract or otherwise, extend the cross-waiver of liability, as set forth in paragraph (c)(1) of this section, to its related entities by requiring them, by contract or otherwise, to:
(i)Waive all claims against the entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iv) of this section; and
(ii)Require that their related entities waive all claims against the entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iv) of this section.
(3)For avoidance of doubt, this cross-waiver of liability includes a cross-waiver of claims arising from the Convention on International Liability for Damage Caused by Space Objects, which entered into force on September 1, 1972, where the person, entity, or property causing the damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations.
(4)Notwithstanding the other provisions of this section, this cross-waiver of liability shall not be applicable to:
(i)Claims between a Party and its own related entity or between its own related entities;
(ii)Claims made by a natural person, his/her estate, survivors or subrogees (except when a subrogee is a Party to the agreement or is otherwise bound by the terms of this cross-waiver) for bodily injury to, or other impairment of health of, or death of, such person;
(iii)Claims for damage caused by willful misconduct;
(iv)Intellectual property claims;
(v)Claims for damage resulting from a failure of a Party to extend the cross-waiver of liability to its related entities, pursuant to paragraph (c)(2) of this section; or
(vi)Claims by a Party arising out of or relating to another Party's failure to perform its obligations under the agreement.
(5)Nothing in this section shall be construed to create the basis for a claim or suit where none would otherwise exist.
(6)This cross-waiver shall not be applicable when 49 U.S.C. Subtitle IX, Chapter. 701 is applicable. § 1266.103 [Reserved]. § 1266.104 Cross-waiver of liability for launch agreements for science or space exploration activities unrelated to the International Space Station.
(a)The purpose of this section is to implement a cross-waiver of liability between the parties to agreements for NASA's science or space exploration activities that are not related to the International Space Station
(ISS)but involve a launch. It is intended that the cross-waiver of liability be broadly construed to achieve this objective.
(b)For purposes of this section:
(1)The term “Party” means a party to a NASA agreement for science or space exploration activities unrelated to the ISS that involve a launch.
(i)The term “related entity” means:
(A)A contractor or subcontractor of a Party at any tier;
(B)A user or customer of a Party at any tier; or
(C)A contractor or subcontractor of a user or customer of a Party at any tier.
(ii)The terms “contractor” and “subcontractor” include suppliers of any kind.
(iii)The term “related entity” may also apply to a State or an agency or institution of a State, having the same relationship to a Party as described in paragraphs (b)(2)(i)(A) through (b)(2)(i)(C) of this section, or otherwise engaged in the implementation of Protected Space Operations as defined in paragraph (b)(6) of this section.
(3)The term “damage” means:
(i)Bodily injury to, or other impairment of health of, or death of, any person;
(ii)Damage to, loss of, or loss of use of any property;
(iii)Loss of revenue or profits; or
(iv)Other direct, indirect, or consequential damage.
(4)The term “launch vehicle” means an object, or any part thereof, intended for launch, launched from Earth, or returning to Earth which carries payloads or persons, or both.
(5)The term “payload” means all property to be flown or used on or in a launch vehicle.
(6)The term “Protected Space Operations” means all launch or transfer vehicle activities and payload activities on Earth, in outer space, or in transit between Earth and outer space in implementation of an agreement for launch services. Protected Space Operations begins at the signature of the agreement and ends when all activities done in implementation of the agreement are completed. It includes, but is not limited to:
(i)Research, design, development, test, manufacture, assembly, integration, operation, or use of launch or transfer vehicles, payloads, or instruments, as well as related support equipment and facilities and services; and
(ii)All activities related to ground support, test, training, simulation, or guidance and control equipment and related facilities or services. The term “Protected Space Operations” excludes activities on Earth that are conducted on return from space to develop further a payload's product or process for use other than for the activities within the scope of an agreement for launch services.
(7)The term “transfer vehicle” means any vehicle that operates in space and transfers payloads or persons or both between two different space objects, between two different locations on the same space object, or between a space object and the surface of a celestial body. A transfer vehicle also includes a vehicle that departs from and returns to the same location on a space object. (c)(1) Cross-waiver of liability: Each Party agrees to a cross-waiver of liability pursuant to which each Party waives all claims against any of the entities or persons listed in paragraphs (c)(1)(i) through (c)(1)(iv) of this section based on damage arising out of Protected Space Operations. This cross-waiver shall apply only if the person, entity, or property causing the damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations. The cross-waiver shall apply to any claims for damage, whatever the legal basis for such claims, against:
(i)Another Party;
(ii)A party to another NASA agreement that includes flight on the same launch vehicle;
(iii)A related entity of any entity identified in paragraphs (c)(1)(i) or (c)(1)(ii) of this section; or
(iv)The employees of any of the entities identified in paragraphs (c)(1)(i) through (c)(1)(iii) of this section.
(2)In addition, each Party shall extend the cross-waiver of liability, as set forth in paragraph (c)(1) of this section, to its own related entities by requiring them, by contract or otherwise, to:
(i)Waive all claims against the entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iv) of this section; and
(ii)Require that their related entities waive all claims against the entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iv) of this section.
(3)For avoidance of doubt, this cross-waiver of liability includes a cross-waiver of claims arising from the Convention on International Liability for Damage Caused by Space Objects, which entered into force on September 1, 1972, where the person, entity, or property causing the damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations.
(4)Notwithstanding the other provisions of this section, this cross-waiver of liability shall not be applicable to:
(i)Claims between a Party and its own related entity or between its own related entities;
(ii)Claims made by a natural person, his/her estate, survivors, or subrogees (except when a subrogee is a Party to the agreement or is otherwise bound by the terms of this cross-waiver) for bodily injury to, or other impairment of health of, or death of, such person;
(iii)Claims for damage caused by willful misconduct;
(iv)Intellectual property claims;
(v)Claims for damages resulting from a failure of a Party to extend the cross-waiver of liability to its related entities, pursuant to paragraph (c)(2) of this section; or
(vi)Claims by a Party arising out of or relating to another Party's failure to perform its obligations under the agreement.
(5)Nothing in this section shall be construed to create the basis for a claim or suit where none would otherwise exist.
(6)This cross-waiver shall not be applicable when 49 U.S.C. Subtitle IX, Chapter 701 is applicable. Michael D. Griffin, Administrator. [FR Doc. E8-2868 Filed 2-25-08; 8:45 am] BILLING CODE 7510-13-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2007-0646; FRL-8527-1] Approval and Promulgation of State Implementation Plans; Montana; Revisions to Administrative Rules of Montana, and Interstate Transport of Pollution AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action approving State Implementation Plan
(SIP)revisions submitted by the State of Montana on June 28, 2000 and April 16, 2007. The revisions update Administrative Rules of Montana
(ARM)provisions for Particulate Matter, and address Interstate Transport Pollution requirements of Section 110(a)(2)(D)(i) of the Clean Air Act. On June 28, 2000, the Governor of Montana submitted revisions to ARM rules 17.8.101-Definitions; 17.8.308-Particulate Matter, Airborne; and 17.8.320-Wood Waste Burners. In the April 16, 2007 submission, the Governor of Montana requested EPA's review and approval of the “Interstate Transport Rule Declaration” adopted into the State SIP on February 12, 2007. The June 28, 2000 submittal included also a declaration certifying the adequacy of the State SIP in regard to the infrastructure-related PM <sup>2.5</sup> elements of Section 110. EPA is not taking action on this declaration since the State rescinded the request for approval with the April 16, 2007 submittal. This action is being taken under section 110 of the Clean Air Act. DATES: This rule is effective on April 28, 2008 without further notice, unless EPA receives adverse comment by March 27, 2008. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-OAR-2007-0646, by one of the following methods: • *www.regulations.gov* . Follow the on-line instructions for submitting comments. • *E-mail:* *videtich.callie@epa.gov* and *mastrangelo.domenico@epa.gov* . • *Fax:*
(303)312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). • *Mail:* Callie Videtich, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. • *Hand Delivery:* Callie Videtich, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:55 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R08-OAR-2007-0646. 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 information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. 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 instructions on submitting comments, go to Section I. General Information of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly-available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Domenico Mastrangelo, Air and Radiation Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129,
(303)312-6436, *mastrangelo.domenico@epa.gov* . SUPPLEMENTARY INFORMATION: Definitions For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i)The words or initials *Act* or *CAA* mean or refer to the Clean Air Act, unless the context indicates otherwise.
(ii)The words *EPA* , *we, us* or *our* mean or refer to the United States Environmental Protection Agency.
(iii)The initials *SIP* mean or refer to State Implementation Plan.
(iv)The words *State* or *Montana* mean the State of Montana, unless the context indicates otherwise. Table of Contents I. General Information II. What is the purpose of this action? III. What is the State process to submit these materials to EPA? IV. EPA's evaluation of the State of Montana June 28, 2000 submittal V. EPA's evaluation of the State of Montana April 16, 2007 submittal VI. Final Action VII. Statutory and Executive Order Reviews I. General Information A. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI* . Do not submit CBI to EPA through *www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for Preparing Your Comments* . When submitting comments, remember to: a. Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. d. Describe any assumptions and provide any technical information and/or data that you used. e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. f. Provide specific examples to illustrate your concerns, and suggest alternatives. g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. h. Make sure to submit your comments by the comment period deadline identified. II. What is the purpose of this action? EPA is approving revisions to the Administrative Rules of Montana
(ARM)submitted by the State of Montana on June 28, 2000, and the addition to Montana's SIP of the “Interstate Transport Rule Declaration” submitted on April 16, 2007. The June 28, 2000 submission, adopted on March 17, 2000 and effective on March 31, 2000, included the addition of definitions of PM and PM <sup>2.5</sup> , in ARM 17.8.101(31) and
(32)respectively, as well as related changes to ARM 17.8.308(4), Particulate Matter, Airborne, and 17.8.320(6), Wood Waste Burners. The adoption of a definition for PM accounts for the fact that there is more than one size of particulate matter being regulated, and the addition of the PM <sup>2.5</sup> definition allows the incorporation of the EPA measurement reference method for PM <sup>2.5</sup> . ARM 17.8.308(4) and 17.8.320(6) are amended by substituting the term “PM” for the term “PM <sup>10</sup> ” in all applicable rules to specify control requirements and emission limits for new sources and certain wood-waste burners located in particulate matter nonattainment areas. Editorial amendments to ARM 17.8.308(4) make the rule more concise and the term used for particulate matter consistent with the language in other rules. EPA is also approving the “Interstate Transport Rule Declaration” adopted into the State of Montana SIP on February 12, 2007, effective on the same date, and submitted to EPA on April 16, 2007. The Interstate Transport Rule Declaration addresses the requirements of Section 110(a)(2)(D)(i) of the Clean Air Act (CAA). Section 110(a)(2)(D)(i) of the CAA requires that each state's SIP include adequate provisions prohibiting emissions that adversely affect another state's air quality through interstate transport of air pollutants. III. What is the State process to submit these materials to EPA? Section 110(k) of the CAA addresses EPA's actions on submissions of revisions to a SIP. The CAA requires States to observe certain procedural requirements in developing SIP revisions for submittal to EPA. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This must occur prior to the revision being submitted by a state to EPA. The Montana Board of Environmental Review
(BER)held a public hearing for the addition of definitions for PM and PM <sup>2.5</sup> , in ARM 17.8.101(31) and
(32)respectively, as well as changes to ARM 17.8.308(4) and 17.8.320(6) on January 25, 2000. The definitions and other rule changes were adopted by the Board on March 17, 2000 and became effective on March 31, 2000. The Governor submitted these SIP revisions to EPA on June 28, 2000. The Montana Board of Environmental Review
(BER)held a public hearing for the addition of the Interstate Transport Rule Declaration to Montana's SIP on February 12, 2007. The Declaration was adopted by BER and became State effective also on February 12, 2007. The Governor submitted these SIP revisions to EPA on April 16, 2007. We have evaluated the Governor's submittals of these SIP revisions and have determined that the State met the requirements for reasonable notice and public hearing under Section 110(a)(2) of the CAA. IV. EPA's Evaluation of the State of Montana June 28, 2000 Submittal 1. Changes to the Definition of Particulate Matter Montana is adding new definitions of PM and PM <sup>2.5</sup> . These changes in definition are approvable and will make particulate matter references more clearly understood by the public. Specifically, the definition under ARM 17.8.101(31) will clarify that all applicable definitions of particulate matter are specified by aerodynamic size class. Furthermore, the definition under ARM 17.8.101(32) specifies that PM <sup>2.5</sup> is particulate matter with a diameter of less than or equal to a nominal 2.5 micrometers as measured by a reference method based on 40 CFR part 50, Appendix L, and designated in accordance with 40 CFR part 53, or by an equivalent method designated in accordance with 40 CFR part 53. The revisions to ARM 17.8.308(4) and ARM 17.8.320(6) replace the term PM <sup>10</sup> with PM to maintain consistency with the previous change in definition and include editorial changes that make the language clearer. 2. Certification of the Adequacy of the Section 110 Elements for Implementation of the PM Program EPA is not taking any action with respect to the declaration made by the State of Montana with respect to Section 110(a)(2)(D)(i) on the adequacy of the infrastructure-related elements required to implement the particulate matter program. The State rescinded this portion of the June 28, 2000 submittal in its April 16, 2007 submittal. V. EPA's Evaluation of the State of Montana April 16, 2007 Submittal EPA has reviewed the State's Interstate Transport Rule Declaration submitted on April 16, 2007 and believes that approval is warranted. The provisions of the CAA Section 110(a)(2)(D)(i) require that the Montana SIP contain adequate provisions prohibiting air pollutant emissions from sources or activities in the state from adversely affecting another state. A state SIP must include provisions that prohibit sources from emitting pollutants in amounts which will:
(1)Contribute significantly to nonattainment of the NAAQS in another state;
(2)interfere with maintenance of the NAAQS by another state;
(3)interfere with another state's measures to prevent significant deterioration of its air quality; and
(4)interfere with the efforts of another state to protect visibility. EPA issued guidance on August 15, 2006 relating to SIP submissions that meet the requirements of Section 110(a)(2)(D)(i) for the PM <sup>2.5</sup> and the 8-hour ozone standards. The Interstate Transport Rule Declaration submitted by the State of Montana is consistent with the guidance. To support the first two of the four elements noted above, the State of Montana relies on a combination of:
(a)EPA positions and modeling analysis results published in **Federal Register** notices as part of the Clean Air Interstate Rule
(CAIR)rulemaking process; and,
(b)considerations of geographical, meteorological and topographical factors affecting the likelihood of pollution transport from the State to the closest PM <sup>2.5</sup> and 8-hour ozone nonattainment areas in other states. In addition, EPA includes data and analysis based on materials published in EPA's CAIR rulemaking notices and on monitoring data gathered by the states and reported to EPA in the Air Quality System
(AQS)database. For PM <sup>2.5</sup> Montana identifies Merced, California, and Chicago, Illinois, as the nonattainment areas closest to the State urban centers. Merced is more than 700 miles from Missoula and in a direction opposite to that of the prevailing winds. The Cook County nonattainment area, in which Chicago is located, is more than 1,000 miles from Billings, the closest Montana city. Given this distance and the absence of PM <sup>2.5</sup> nonattainment areas between Billings and Chicago, it is unlikely that Montana is making a significant contribution to the PM <sup>2.5</sup> nonattainment status of Cook County. This assessment is consistent with results of the modeling analysis EPA conducted and reported in the rulemaking **Federal Register** notices for the determination of the CAIR states (69 FR 4566 and 70 FR 25162). According to the CAIR Proposed Rule of January 30, 2004, the maximum PM <sup>2.5</sup> contribution by Montana to downwind counties identified as being in nonattainment for the base years 2010 and 2015 is to Cook County, and is estimated to be 0.03 μg/m 3 (Table V-5, 69 FR 4608). This amount is well below the “significant contribution” threshold of 0.20 μg/m 3 set by EPA. An examination of AQS monitoring data suggests that Montana's PM <sup>2.5</sup> contribution is well below the “significant contribution” threshold. During the years 2004-2006 monitors in the State of Montana showed PM <sup>2.5</sup> exceedance days on five days: January 19, July 9 and 15, 2005, and August 30 and September 5, 2006. There were no concurrent or delayed measurable effects registered at monitors in the closest downwind, or potentially downwind, states of North Dakota, South Dakota and Wyoming. In fact, during the entire time span considered here, the PM <sup>2.5</sup> monitors in these three states did not register any exceedance days. For the 8-hour ozone standard, Montana's Interstate Transport Rule Declaration identifies the Denver Metropolitan Area in Colorado, and the Chico area in California, as the closest nonattainment areas. Fort Collins, the city at the northernmost edge of the Denver Metropolitan Area is more than 400 miles from Billings, and Chico is more than 600 miles from Missoula. Again, distance, in combination with the meteorological and topographic factors of the areas involved, indicate as highly unlikely a significant Montana contribution to the 8-hour ozone nonattainment in the Chico and Denver/Fort Collins areas. We have also examined the AQS data on 8-hour ozone exceedance days registered during the 2004-2006 years at the monitoring sites in Montana and in neighboring downwind states or potentially downwind states. During these years the ozone monitors did not register any exceedance days in Montana or in the closest downwind states of North Dakota and South Dakota. In the same time span the Wyoming monitors measured 8-hours ozone exceedances on less than 0.5 percent of the days. Wyoming monitors registered three exceedance days on February 3, 20 and 26, 2005. The absence of 8-hour ozone exceedance days in Montana and its closest downwind states of North Dakota and South Dakota, combined with the rare occurrence of exceedance days in Wyoming, is consistent with conclusions drawn from other data and analysis, presented in the preceding paragraphs: Any ozone or ozone precursor transport from Montana to downwind states is not high enough to significantly contribute to nonattainment of the NAAQS or interfere with maintenance of the NAAQS in neighboring downwind states. The data and analysis examined above indicates that the Interstate Transport Rule Declaration adopted by Montana in the State SIP satisfactorily addresses the first two elements of the CAA Section 110(a)(2)(D)(i) for the PM <sup>2.5</sup> and 8-hour ozone standards. The third element of the Section 110(a)(2)(D)(i) provisions requires states to prohibit emissions that interfere with any other state's measures to prevent significant deterioration
(PSD)of air quality. The State of Montana explains that the State's SIP provisions include EPA-approved PSD and Nonattainment New Source Review
(NNSR)programs with pre-construction and permitting requirements for new major sources and major modifications to existing sources that satisfy the Section 110(a)(2)(D)(i) requirements. The State also expresses its commitment to continue implementing its PSD and NNSR provisions. The fourth element of the Section 110(a)(2)(D)(i) provisions concerns the requirement that a state SIP prohibit sources from emitting pollutants that interfere with the efforts of another state to protect visibility. Consistent with the August 15, 2006 EPA guidance, the Montana Interstate Transport Rule Declaration indicates that at this time the State is unable to verify whether there is interference with measures in another state's SIP designed to “protect visibility” for the 8-hour ozone and PM <sup>2.5</sup> . This fourth element will be addressed in the regional haze implementation plan. Therefore, emitting pollutants will be addressed in Montana for the third and fourth elements of the Section 110(a)(2)(D)(i) provisions in a way that is consistent with the EPA guidance noted above. VI. Final Action EPA is approving, through direct final rulemaking, the additions to the Administrative Rules of Montana
(ARM)of the definition of PM and PM <sup>2.5</sup> , ARM 17.8.101(31) and ARM 17.8.101(32), as well as the modifications to ARM 17.8.308(4) and ARM17.8.320(6). These changes were adopted on March 17, 2000, became effective on March 31, 2000 and were submitted to EPA on June 28, 2000. EPA is also approving the Interstate Transport Declaration Rule submitted by Montana on April 16, 2007 and is revising 40 CFR 52.1370 to reflect that the State has adequately addressed the required elements of Section 110(a)(2)(D)(i) of the Clean Air Act. Section 110(l) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of a NAAQS or any other applicable requirement of the CAA. The new definitions of particulate matter and other state regulations will not interfere with attainment, reasonable further progress, or any other applicable requirement of the CAA. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. This rule will be effective April 28, 2008 without further notice unless the Agency receives adverse comments by March 27, 2008. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the **Federal Register** informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. VII. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by *April 28, 2008.* Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile Organic Compounds. Dated: January 29, 2008. Carol Rushin, Acting Regional Administrator, Region 8. 40 CFR part 52 is amended to read as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart BB—Montana 2. Section 52.1370 is amended by adding paragraph (c)(65) to read as follows: § 52.1370 Identification of plan.
(c)* * *
(65)On June 28, 2000, the Governor of Montana submitted to EPA revisions to the Montana State Implementation Plan. The revisions add definitions for PM and PM <sup>2.5,</sup> ARM 17.8.101(31) and
(32)respectively, and revise ARM 17.8.308(4) and ARM 17.8.320(6) through editorial amendments making the rule more concise and consistent with the language in all applicable rules.
(i)*Incorporation by reference.* Administrative Rules of Montana
(ARM)sections: ARM 17.8.101(31) and (32); 17.8.308(4) introductory text, and 17.8.308(4)(b) and (c); and 17.8.320(6). March 31, 2000 is the effective date of these revised rules effective March 31, 2000.
(ii)Additional Material. April 16, 2007 letter by the Governor of Montana rescinding its statement of certification regarding the 1997 NAAQS as submitted in June 28, 2000. 3. Section 52.1393 is added to read as follows: § 52.1393 Interstate Transport Declaration for the 1997 8-hour ozone and PM 2.5 NAAQS. The State of Montana added the Interstate Transport Rule Declaration to the State SIP, State of Montana Air Quality Control Implementation Plan, Volume I, Chapter 9, to satisfy the requirements of Clean Air Act Section 110(a)(2)(D)(i) for the 8-hour ozone and PM <sup>2.5</sup> NAAQS promulgated in July 1997. The Montana Interstate Transport Rule Declaration, adopted and effective on the same date of February 12, 2007, was submitted to EPA on April 16, 2007. The April 16, 2007 Governor's letter included as an attachment a set of dated replacement pages for the Montana Interstate Transport Rule Declaration. The new set of pages were sent as replacement for the set of undated pages submitted earlier with the February 12, 2007 Record of Adoption package. In a May 10, 2007 e-mail to Domenico Mastrangelo, EPA, Debra Wolfe, of the Montana Department of Environmental Quality, confirmed February 12, 2007 as the adoption/effective date for the Montana Interstate Transport Rule Declaration. [FR Doc. E8-3338 Filed 2-25-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 64 [Docket No. FEMA-8011] Suspension of Community Eligibility AGENCY: Federal Emergency Management Agency, DHS. ACTION: Final rule. SUMMARY: This rule identifies communities, where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP), that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency
(FEMA)receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the **Federal Register** on a subsequent date. DATES: *Effective Dates:* The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables. ADDRESSES: If you want to determine whether a particular community was suspended on the suspension date, contact the appropriate FEMA Regional Office. FOR FURTHER INFORMATION CONTACT: David Stearrett, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-2953. SUPPLEMENTARY INFORMATION: The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001 *et seq.* ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the **Federal Register** . In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified. Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days. *National Environmental Policy Act* . This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared. *Regulatory Flexibility Act* . The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place. *Regulatory Classification* . This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism* . This rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform* . This rule meets the applicable standards of Executive Order 12988. *Paperwork Reduction Act* . This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* List of Subjects in 44 CFR Part 64 Flood insurance, Floodplains. Accordingly, 44 CFR part 64 is amended as follows: PART 64—[AMENDED] 1. The authority citation for part 64 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp.; p. 376. § 64.6 [Amended]. 2. The tables published under the authority of § 64.6 are amended as follows: State and location Community No. Effective date authorization/cancellation of sale of flood insurance in community Current effective map date Date certain federal assistance no longer available in SFHAs Region IV Alabama: Powell, Town of, DeKalb County 010398 June 6, 2005, Emerg;-, Reg; February 20, 2008, Susp ......do Do. Rainsville, City of, DeKalb County 010368 July 16, 1975, Emerg; May 1, 1980, Reg; February 20, 2008, Susp ......do Do. Sylvania, Town of, DeKalb County 010364 September 4, 2005, Emerg;-, Reg; February 20, 2008, Susp ......do Do. Taylor, City of, Geneva County 010108 -, Emerg; April 15, 2004, Reg; February 20, 2008, Susp ......do Do. Valley Head, Town of, DeKalb County 010068 August 7, 1975, Emerg; April 15, 1980, Reg; February 20, 2008, Susp ......do Do. North Carolina: Cleveland County, Unincorporated Areas 370302 -, Emerg; October 23, 1995, Reg; February 20, 2008, Susp ......do Do. Shelby, City of, Cleveland County 370064 January 17, 1974, Emerg; April 3, 1978, Reg; February 20, 2008, Susp ......do Do. Tennessee: Lebanon, City of, Wilson County 470208 June 23, 1975, Emerg; January 6, 1983, Reg; February 20, 2008, Susp ......do Do. Mt. Juliet, City of, Wilson County 470290 July 8, 1976, Emerg; May 17, 1982, Reg; February 20, 2008, Susp ......do Do. Watertown, City of, Wilson County 470380 December 29, 1980, Emerg; January 1, 1987, Reg; February 20, 2008, Susp ......do Do. Wilson County, Unincorporated Areas 470207 August 27, 1975, Emerg; June 15, 1984, Reg; February 20, 2008, Susp ......do Do. Region VI Arkansas: Austin, City of, Lonoke County 050383 January 13, 1976, Emerg; April 15, 1982, Reg; February 20, 2008, Susp ......do Do. Cabot, City of, Lonoke County 050309 September 26, 1975, Emerg; April 19, 1983, Reg; February 20, 2008, Susp ......do Do. Lonoke County, Unincorporated Areas 050448 -, Emerg; March 14, 1994, Reg; February 20, 2008, Susp ......do Do. Ward, City of, Lonoke County 050372 September 8, 1975, Emerg; September 5, 1978, Reg; February 20, 2008, Susp ......do Do. Region VII Iowa: Ames, City of, Story County 190254 July 25, 1974, Emerg; January 2, 1981, Reg; February 20, 2008, Susp ......do Do. Cambridge, City of, Story County 190255 July 29, 1974, Emerg; June 15, 1981, Reg; February 20, 2008, Susp ......do Do. Gilbert, City of, Story County 190256 April 8, 1975, Emerg; January 1, 1987, Reg; February 20, 2008, Susp ......do Do. Maxwell, City of, Story County 190257 July 24, 1975, Emerg; February 15, 1984, Reg; February 20, 2008, Susp ......do Do. Nevada, City of, Story County 190258 November 25, 1974, Emerg; August 3, 1981, Reg; February 20, 2008, Susp ......do Do. Zearing, City of, Story County 190260 September 28, 1976, Emerg; May 1, 1987, Reg; February 20, 2008, Susp ......do Do. Kansas: Americus, City of, Lyon County 200202 July 8, 1975, Emerg; April 15, 1982, Reg; February 20, 2008, Susp ......do Do. Emporia, City of, Lyon County 200203 June 10, 1975, Emerg; October 2, 1979, Reg; February 20, 2008, Susp ......do Do. Missouri: Doolittle, City of, Phelps County 290727 February 18, 1976, Emerg; August 24, 1984, Reg; February 20, 2008, Susp ......do Do. Newburg, City of, Phelps County 295268 April 9, 1971, Emerg; April 28, 1972, Reg; February 20, 2008, Susp ......do Do. Phelps County, Unincorporated Areas 290824 May 1, 1984, Emerg; February 1, 1987, Reg; February 20, 2008, Susp ......do Do. St. James, City of, Phelps County 290661 February 5, 1976, Emerg; July 3, 1985, Reg; February 20, 2008, Susp ......do Do. Nebraska: Wauneta, Village of, Chase County 310037 March 31, 1975, Emerg; February 4, 1987, Reg; February 20, 2008, Susp ......do Do. * -do-=Ditto. Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp.—Suspension. Dated: February 7, 2008. David I. Maurstad, Assistant Administrator for Mitigation, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E8-3628 Filed 2-25-08; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 367 [Docket No. FMCSA-2007-27871] RIN 2126-AB15 Fees for Unified Carrier Registration Plan and Agreement; Correction AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Correcting amendments. SUMMARY: This document makes a technical correction to the annual fees and fee bracket structure for the Unified Carrier Registration Agreement that were published in the **Federal Register** of August 24, 2007 (72 FR 48585). The fees and fee bracket structure are required under the Uniform Carrier Registration Act of 2005, enacted as Subtitle C of Title IV of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. This document corrects the year in which the fees and fee bracket structure are effective. DATES: Effective date: February 26, 2008. FOR FURTHER INFORMATION CONTACT: Jason Hartman, Regulatory Development Division,
(202)366-5043, or by e-mail at: *FMCSAregs@dot.gov.* Office hours are from 8 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Legal Basis for the Rulemaking This technical correction involves the fees for the Unified Carrier Registration Agreement (UCR Agreement) established by 49 U.S.C. 14504a, enacted by section 4305(b) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (119 Stat. 1144, 1764 (2005)). Section 14504a states that the “Unified Carrier Registration Plan * * * mean[s] the organization * * * responsible for developing, implementing, and administering the unified carrier registration agreement” (49 U.S.C. 14504a(a)(9)). The UCR Agreement developed by the Unified Carrier Registration Plan (UCR Plan) is the “interstate agreement governing the collection and distribution of registration and financial responsibility information provided and fees paid by motor carriers, motor private carriers, brokers, freight forwarders and leasing companies * * * ” (49 U.S.C. 14504a(a)(8)). The statute provides for a 15-member Board of Directors for the UCR Plan and Agreement (Board) appointed by the Secretary of Transportation. The establishment of the Board was announced in the **Federal Register** on May 12, 2006 (71 FR 27777). Among its responsibilities, the Board was required to submit to the Secretary of Transportation 1 a recommendation for the initial annual fees to be assessed motor carriers, motor private carriers, freight forwarders, brokers and leasing companies under the UCR Agreement (49 U.S.C. 14504a(d)(7)(A)). The FMCSA then was directed to set the fees within 90 days after receiving the Board's recommendation and after notice and opportunity for public comment (49 U.S.C. 14504a(d)(7)(B)). The FMCSA established fees and a fee bracket structure in a final rule published in the **Federal Register** on August 24, 2007 (72 FR 48585). 1 The Secretary's functions under section 14504a have been delegated to the Administrator of the Federal Motor Carrier Safety Administration. 49 CFR 1.73(a)(7), as amended, 71 FR 30833 (May 31, 2006). Background In the final rule of August 24, 2007 (72 FR 48585), the FMCSA erroneously specified that the fees and fee bracket structure adopted in that rule pertained only to the registration year 2007. Under the statute, however, the fees set by FMCSA apply to each registration year unless and until the Board recommends an adjustment in the annual fees in accordance with 49 U.S.C. 14504a(f)(1)(E). Only after the UCR Board and FMCSA follow the procedures specified in 49 U.S.C. 14504a(d)(7)(B) and FMCSA approves a new set of fees and fee brackets would they become effective. Need for Correction This technical correction is required to allow the UCR Plan to continue to collect the established fees in each registration year. The FMCSA is correcting the section heading of 49 CFR 367.20 and the caption of the fee table in § 367.20 to specify that the section establishes fees under the UCR Plan and the UCR Agreement for each registration year. Regulatory Analyses and Notices Administrative Procedure Act The Administrative Procedure Act provides exceptions to its notice and public comment procedures when an agency finds there is good cause on the basis that those procedures are “impracticable, unnecessary, or contrary to the public interest.” (See 5 U.S.C. 553(b)). As stated above, the amendment made by this final rule merely corrects an inadvertent error. The FMCSA therefore finds good cause that notice and public comment are unnecessary. Further, the Agency finds good cause under 5 U.S.C. 553(d)(3) to make the amendment effective upon publication. Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures The FMCSA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or within the meaning of Department of Transportation regulatory policies and procedures. The Office of Management and Budget did not review this document. We expect the final rule will have minimal costs; therefore, a full regulatory evaluation is unnecessary. Regulatory Flexibility Act In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), FMCSA has evaluated the effects of this rule on small entities. Because the rule only makes editorial corrections and places no new requirements on the regulated industry, FMCSA certifies that this action will not have a significant economic impact on a substantial number of small entities. Unfunded Mandates Reform Act of 1995 This rulemaking will not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, *et seq.* ), that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $128.1 million or more in any 1 year. Executive Order 12988 (Civil Justice Reform) This action will meet 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. Executive Order 13045 (Protection of Children) The FMCSA analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. We determined that this rulemaking will not concern an environmental risk to health or safety that may disproportionately affect children. Executive Order 12630 (Taking of Private Property) This rulemaking does not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Executive Order 13132 (Federalism) The FMCSA analyzed this rule in accordance with the principles and criteria contained in Executive Order 13132. The FMCSA has determined that this rulemaking will not have a substantial direct effect on States, nor will it limit the policy-making discretion of the States. Nothing in this document will preempt any State law or regulation. Executive Order 12372 (Intergovernmental Review) The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that FMCSA consider the impact of paperwork and other information collection burdens imposed on the public. We have determined that there are no new information collection requirements associated with this final rule. National Environmental Policy Act The FMCSA analyzed this final rule for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321, *et seq.* ) and determined under our environmental procedures Order 5610.1, issued March 1, 2004 (69 FR 9680), that this action is categorically excluded
(CE)under Appendix 2, paragraph 6.h of the Order from environmental documentation. In addition, the Agency believes that this action includes no extraordinary circumstances that will have any effect on the quality of the environment. Thus, the action does not require an environmental assessment or an environmental impact statement. The FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401, *et seq.* ), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it will have no effect on the environment. Executive Order 13211 (Energy Effects) The FMCSA analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We determined that it is not a “significant energy action” under that Executive Order because it will not be likely to have a significant adverse effect on the supply, distribution, or use. List of Subjects in 49 CFR Part 367 Commercial motor vehicle, Financial responsibility, Motor carriers, Motor vehicle safety, Registration, Reporting and recordkeeping requirements. In consideration of the foregoing, FMCSA amends title 49, Code of Federal Regulations, part 367, as follows: PART 367—STANDARDS FOR REGISTRATION WITH STATES 1. The authority citation for part 367 continues to read as follows: Authority: 49 U.S.C. 13301, 14504, 14504a; and 49 CFR 1.73. 2. Correct the section heading and the title of the table in § 367.20 to read as follows: § 367.20 Fees under the Unified Carrier Registration Plan and Agreement for Each Registration Year. Fees Under the Unified Carrier Registration Plan and Agreement for Each Registration Year Issued on: February 20, 2008. John H. Hill, Administrator. [FR Doc. E8-3603 Filed 2-25-08; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 001005281-0369-02] RIN 0648-XF68 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; Closure AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. SUMMARY: NMFS closes the commercial fishery for king mackerel in the Florida east coast subzone. This closure is necessary to protect the Gulf king mackerel resource. DATES: The closure is effective 12:01 a.m., local time, February 21, 2008, through 12:01 a.m., local time, March 31, 2008. FOR FURTHER INFORMATION CONTACT: Susan Gerhart, telephone: 727-824-5305, fax: 727-824-5308, e-mail: *Susan.Gerhart@noaa.gov.* SUPPLEMENTARY INFORMATION: The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, and, in the Gulf of Mexico only, dolphin and bluefish) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. Based on the Councils' recommended total allowable catch and the allocation ratios in the FMP, on April 30, 2001 (66 FR 17368, March 30, 2001) NMFS implemented a commercial quota of 2.25 million lb (1.02 million kg) for the eastern zone (Florida) of the Gulf migratory group of king mackerel. That quota is further divided into separate quotas for the Florida east coast subzone and the northern and southern Florida west coast subzones. The quota implemented for the Florida east coast subzone is 1,040,625 lb (472,020 kg) (50 CFR 622.42(c)(1)(i)(A)( *1* )). Under 50 CFR 622.43(a)(3), NMFS is required to close any segment of the king mackerel commercial fishery when its quota has been reached, by filing a notification at the Office of the Federal Register. NMFS has determined that the commercial quota of 1,040,625 lb (472,000 kg) for Gulf group king mackerel in the Florida east coast subzone will be reached on February 20, 2008. Accordingly, the commercial fishery for king mackerel in the Florida east coast subzone is closed at 12:01 a.m., local time, February 21, 2008, through 12:01 a.m., local time, March 31, 2008. From November 1 through March 31 the Florida east coast subzone of the Gulf group king mackerel is that part of the eastern zone north of 25°20.4′ N. lat. (a line directly east from the Miami-Dade/Monroe County, FL, boundary) to 29°25′ N. lat. (a line directly east from the Flagler/Volusia County, FL, boundary). Beginning April 1, the boundary between Atlantic and Gulf groups of king mackerel shifts south and west to the Monroe/Collier County boundary on the west coast of Florida. From April 1 through October 31, king mackerel harvested along the east coast of Florida, including all of Monroe County, are considered to be Atlantic group king mackerel. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to close the fishery constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule itself already has been subject to notice and comment, and all that remains is to notify the public of the closure. NMFS also finds good cause that the implementation of this action cannot be delayed for 30 days. There is a need to implement this measure in a timely fashion to prevent an overrun of the commercial fishery for king mackerel in the Florida east coast subzone, given the capacity of the fishing fleet to harvest the quota quickly. Any delay in implementing this action would be contrary to the Magnuson-Stevens Act and the FMP. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is waived. This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: February 20, 2008. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 08-835 Filed 2-20-08; 3:59 pm]
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55 references not yet in our index
  • 5 CFR 1201.25
  • 5 CFR 1201
  • 5 CFR 1203
  • 5 CFR 1208
  • 5 CFR 1209
  • 28 CFR 68
  • 8 CFR 1274
  • Pub. L. 101-410
  • Pub. L. 104-134
  • 8 CFR 274
  • 28 CFR 44
  • 8 CFR 270
  • Pub. L. 104-208
  • 8 CFR 280.53
  • 8 CFR 270.3(b)(1)(ii)
  • 28 CFR 85
  • Pub. L. 104-13
  • 5 CFR 1320
  • 8 CFR 280
  • 104 Stat. 890
  • 8 CFR 2
  • 66 Stat. 173
  • 9 CFR 78
  • 7 CFR 3015
  • 7 USC 8301-8317
  • 7 CFR 2.22
  • 14 CFR 39
  • 14 CFR 91
  • Pub. L. 96-354
  • Pub. L. 96-39
  • Pub. L. 104-4
  • 61 Stat. 1180
  • 14 CFR 1266
  • 14 CFR 1266.103
  • 42 USC 2458c
  • 42 USC 2451
  • 48 CFR 1
  • 42 USC 2473
  • 40 CFR 52
  • 40 CFR 2
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U.S.C.§ 3501
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U.S.C.§ 2461
U.S.C.§ 251
U.S.C.§ 1324a
U.S.C.§ 1324b
U.S.C.§ 1324c
C.F.R.§ 68.54
Cite5 CFR 1201.25
Cite5 CFR 1201
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