Proposed Rules. Proposed rule, Partial recommended decision
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/register/2008/02/29/08-882A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Parts 1005, 1006 and 1007 [AMS-DA-07-0059; AO-388-A22, AO-356-A43 and AO-366-A51; Docket No. DA-07-03-B] Milk in the Appalachian, Florida and Southeast Marketing Areas; Partial Recommended Decision and Opportunity To File Written Exceptions on Proposed Amendments to Tentative Marketing Agreements and Orders 7 CFR part Marketing area AO No. 1005 Appalachian AO-388-A22 1006 Florida AO-356-A43 1007 Southeast AO-366-A51 AGENCY:
Agricultural Marketing Service, USDA. ACTION: Proposed rule, Partial recommended decision. SUMMARY: This decision recommends adoption of proposals that would increase the maximum administrative assessment rate in the Appalachian, Florida and Southeast Federal milk marketing orders. DATES: Comments must be submitted on or before April 29, 2008. ADDRESSES: Comments (six copies) should be filed with the Hearing Clerk, United States Department of Agriculture, STOP 9200-Room 1031, 1400 Independence Avenue, SW., Washington, DC 20250-1031.
You may send your comments by the electronic process available at the Federal eRulemaking portal: *http://www.regulations.gov* or by submitting comments to *amsdairycomments@usda.gov.* Reference should be made to the title of the action and docket number. FOR FURRTHER INFORMATION CONTACT: Gino M. Tosi, Associate Deputy Administrator, Order formulation and Enforcement Branch, USDA/AMS/Dairy Programs, STOP 0231-Room 2971, 1400 Independence Ave., SW., Washington, DC 20250-0231,
(202)690-1366, e-mail address: *gino.tosi@usda.gov.* SUPPLEMENTARY INFORMATION: This decision recommends adoption of amendments that would allow the market administrator in the Appalachian, Florida and Southeast marketing areas to increase the maximum administrative assessment rate up to 8 cents per cwt on all pooled milk, if necessary, to maintain the mandated reserve fund level. This administrative action is governed by the provisions of sections 556 and 557 of Title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Order 12866. The amendments to the rules proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have a retroactive effect. If adopted, the proposed amendments would not preempt any state or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674) (the Act), provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may request modification or exemption from such order by filing with the Department a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, the Department would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review the Department ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling. Regulatory Flexibility Act and Paperwork Reduction Act In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the Agricultural Marketing Service
(AMS)has considered the economic impact of this action on small entities and has certified that this proposed rule will not have a significant economic impact on a substantial number of small entities. For the purpose of the Regulatory Flexibility Act, a dairy farm is considered a “small business” if it has an annual gross revenue of less than $750,000, and a dairy products manufacturer is a “small business” if it has fewer than 500 employees. For the purposes of determining which dairy farms are “small businesses,” the $750,000 per year criterion was used to establish a production guideline of 500,000 pounds per month. Although this guideline does not factor in additional monies that may be received by dairy producers, it should be an inclusive standard for most “small” dairy farmers. For purposes of determining a handler's size, if the plant is part of a larger company operating multiple plants that collectively exceed the 500-employee limit, the plant will be considered a large business even if the local plant has fewer than 500 employees. During May 2007, the time of the hearing, there were 2,744 dairy farmers pooled on the Appalachian order. In the Southeast order, 2,924 dairy farmers were pooled and 283 dairy farmers were pooled on the Florida order. Of these, 2,612 dairy farmers in the Appalachian order (or 95.2 percent), 2,739 dairy farmers in the Southeast order (or 94 percent) and 153 dairy farmers in the Florida order (or 54 percent) were considered small businesses. During May 2007, there were a total of 36 plants associated with the Appalachian order (22 fully regulated plants, 10 partially regulated plants, 2 producer-handlers and 2 exempt plants). A total of 55 plants were associated with the Southeast order (33 fully regulated plants, 9 partially regulated plants, 2 producer-handlers and 11 exempt plants). A total of 25 were plants associated with the Florida order (13 fully regulated plants, 9 partially regulated plants, 1 producer-handler and 2 exempt plants). The number of plants meeting the small business criteria under the Appalachian, Southeast and Florida orders were 8 (or 22.2 percent), 18 (or 32.7 percent) and 11 (or 44 percent), respectively. Administrative assessments are charged without regard to the size of any dairy industry or entity. Therefore the proposed amendments will not have a significant economic impact on a substantial number of small entities. The Agricultural Marketing Service
(AMS)is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. A review of reporting requirements was completed under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). It was determined that these proposed amendments would have no impact on reporting, recordkeeping, or other compliance requirements because they would remain identical to the current requirements. No new forms are proposed and no additional reporting requirements would be necessary. This recommended decision does not require additional information collection that requires clearance by the Office of Management and Budget
(OMB)beyond currently approved information collection. The primary sources of data used to complete the approved forms are routinely used in most business transactions. The forms require only a minimal amount of information which can be supplied without data processing equipment or a trained statistical staff. Thus, the information collection and reporting burden is relatively small. Requiring the same reports for all handlers does not significantly disadvantage any handler that is smaller than the industry average. No other burdens are expected to fall on the dairy industry as a result of overlapping Federal rules. Interested parties were invited to submit comments on the probable regulatory and informational impact of this proposed rule on small entities. Prior Documents in This Proceeding *Notice of Hearing:* Issued May 3, 2007; published May 8, 2007 (72 FR 25986). Preliminary Statement Notice is hereby given of the filing with the Hearing Clerk of this recommended decision with respect to proposed amendments to the tentative marketing agreements and the orders regulating the handling of milk in the Appalachian, Southeast and Florida marketing areas. This notice is issued pursuant to the provisions of the Agricultural Marketing Agreement Act and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR Part 900). Interested parties may file written exceptions to this decision with the Hearing Clerk, U.S. Department of Agriculture, STOP 9200-Room 1031, 1400 Independence Ave., SW., Washington DC 20250-9200, by April 29, 2008. Six copies of the exceptions should be filed. All written submissions made pursuant to this notice will be made available for public inspection at the Office of the Hearing Clerk during regular business hours (7 CFR 1.27(b)). The hearing notice specifically invited interested persons to present evidence concerning the probable regulatory and informational impact of the proposals on small businesses. Some evidence was received that specifically addressed these issues and some of the evidence encompassed entities of various sizes. A public hearing was held upon proposed amendments to the marketing agreements and the orders regulating the handling of milk in the Appalachian, Southeast and Florida marketing areas. The hearing was held pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937 (AMAA), as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR Part 900). The proposed amendments set forth below are based on the record of a public hearing held in Tampa, Florida, on May 21-23, 2007, pursuant to a notice of hearing issued May 3, 2007. The material issues on the record of hearing relate to: 1. Administrative Assessment Rate Increases Findings and Conclusions Three proposals published in the hearing notice as Proposals 4, 5 and 6 seeking to increase the maximum administrative assessment rates of the Appalachian, Southeast and Florida orders should be adopted. Specifically, the maximum administrative assessment rates collected on pooled producer milk in the Appalachian, Southeast and Florida orders should be increased from the current maximum administrative assessment rate of 5 cents per cwt to 8 cents per cwt. Proposal 4 was submitted by the Appalachian Market Administrator and Proposals 5 and 6 were submitted by the Market Administrator for the Southeast and Florida orders. According to the Assistant Market Administrator for the Appalachian order, Proposal 4 was offered to ensure that sufficient funds are available for administering the Appalachian order. The witness added that Proposal 4 would amend Section 1005.85 (7 CFR 1005.85) to provide for all of the administrative assessment language pertinent to the Appalachian provisions and would discontinue the reference to Section 1000.85 (7 CFR 1000.85). The witness explained that administration and operating costs include administrative, accounting human resources, economic, pooling and audit staff expenses. The Assistant Market Administrator for the Appalachian order stated that the Market Administrator is required to maintain a specific level of operating reserves. The reserve level, the witness said, must be maintained in the event that an order is terminated and would fund the necessary costs for closing out an order; completing pools and audits and paying severance and leases. The reserve level is detailed in the MA Instruction 207 that is issued by the Deputy Administrator of Dairy Programs, said the witness. The Assistant Market Administrator for the Appalachian order said that the majority of the administrative assessment revenue comes from pooled producer milk. Additionally, the witness said, assessments are also collected on other source receipts assigned to Class I and certain route disposition in the marketing area by partially regulated distributing plants. The witness stated that although the maximum administrative assessment rate allowable on pooled producer milk is 5 cents per cwt, the rate currently collected each month is 4 cents per cwt, which has remained unchanged since January 2000. The Assistant Market Administrator for the Appalachian order said that during 2000-2002, producer milk pooled on the Appalachian order averaged 547 million pounds per month. According to the witness, the 4 cent per cwt assessment rate at this volume of milk created enough revenue to fund Appalachian order operations and maintain the mandated operating reserve. The witness stated that from 2003-2005, producer milk pooled on the order averaged 525 million pounds per month and in 2006, producer milk pooled on the order averaged 520 million pounds per month. The witness also compared the first 4 months of 2007 to the first 4 months of 2006 and stated that producer milk pooled on the order was down 3.45 percent. The Assistant Market Administrator for the Appalachian order explained that about $215,000 is needed each month to cover basic operating expenses. By keeping the assessment rate of 4 cents per cwt, the witness said 538 million pounds of producer milk would be needed each month to cover monthly order expenses. The witness further explained that the Appalachian order was in an operating deficit in 2003, 2004 and 2006 and had a balanced budget in 2005. During 2003-2006, the witness said, the volumes of pooled producer milk did not generate sufficient revenue to fund order operations and lowered the mandated operating reserves. According to the Assistant Market Administrator for the Appalachian order, a decision effective December 1, 2006 (71 FR 62377), established a zero diversion limit on Class I milk receiving transportation credits. The decision, the witness said, reduced the amount of milk that could be pooled on the order and reduced the amount of assessment revenue collected during the period of July through December, when those volumes of milk would be pooled. In addition, the witness said that Proposal 1, if adopted, would add January and February as additional transportation credit payout months, further reducing the amount of milk that could be pooled on the Appalachian order. The witness stressed that tightening pooling provisions of the order impacts the amount of producer milk pooled on the order. The witness expressed concern that less milk pooled on the order would reduce administrative assessment revenue and the ability to fund order operations while maintaining the mandated reserve level. The Assistant Market Administrator for the Appalachian order said that efforts are made by the Market Administrator to control costs of carrying out order operations. According to the witness, cost control efforts include a reduction of office staff by 29 percent through attrition since January 2003, contracting with outside computer services, negotiating a telecommunications contract, consolidating a field office and reducing travel and mail expenses. The witness stressed that regardless of the Market Administrator's efforts to control costs and efficiently administer the order, gains in efficiency cannot make up for revenue lost due to a reduction in milk volumes. The Assistant Market Administrator for the Appalachian order concluded by emphasizing that increasing the maximum administrative assessment rate to 8 cents per cwt would only be the maximum rate allowable and not necessarily the rate assessed. The witness said the actual rate assessed would only be as high as determined by the Market Administrator with approval by the Dairy Programs Deputy Administrator. According to the Market Administrator for the Southeast and Florida orders, Proposals 5 and 6 were offered to ensure that there are sufficient funds to carry out administration of the orders. The witness said the proposals would amend sections 1006.85 (7 CFR 1006.85) and 1007.85 (7 CFR 1007.85) to provide for all of the administrative assessment language pertinent to the Southeast and Florida orders, and would discontinue the reference to section 1000.85 (7 CFR 1000.85). The witness explained that administration and operating expenses of the order include pooling, auditing and providing market information. The Market Administrator explained that the order is required to maintain a specified level of operating reserves. The reserve level, the witness said, is detailed in the MA Instruction 207, that is issued by the Deputy Administrator of Dairy Programs. The witness said the reserve level is kept to cover necessary costs of closing out an order, such as completing pools, audits and paying severance and lease payments. The Market Administrator for the Southeast and Florida orders explained that the majority of the monthly administrative assessment is collected from pooled producer milk. The witness added that additional assessments are also collected from other source receipts associated with Class I and certain route disposition in the marketing area by partially regulated distributing plants. The witness stated that the market administrator is largely dependent on the administrative assessment revenue to fund the operations of the orders. The witness noted that since 2000, the administrative assessment for both orders has contributed over 80 percent of the total income of the market administrator office. According to the Market Administrator for the Southeast and Florida orders, the combined monthly average of pooled producer milk for the two orders in 2000 was 862.8 million pounds. In 2001, the witness said, the combined monthly average of producer milk pooled in both orders was 878.4 million pounds and in 2002, the combined monthly average was 885.0 million pounds. The witness said that during 2000-2002, the assessment rates charged in the Southeast and Florida orders of 3.5 and 3 cents per cwt, respectively, along with the volume of producer milk, were sufficient to fund order operations and maintain the mandated reserve funds. The Market Administrator for the Southeast and Florida orders said that in 2003, although producer milk in the Florida order increased by 5 percent, producer milk in the Southeast order decreased 11 percent, resulting in a considerable decrease in assessment collections. According to the witness, during 2003, funds were drawn from the operating reserves, reducing the reserve level near the mandated minimum. The witness said that as a result, effective with January 2004 milk deliveries, the administrative assessment rates increased by 1 cent to 4.5 and 4 cents per cwt for the Southeast and Florida orders, respectively. The Market Administrator for the Southeast and Florida orders stated that in 2004, the monthly average pounds of producer milk pooled increased over 2003 by 1 percent and 5 percent in the Southeast and Florida orders, respectively. The witness added that in 2005, producer milk increased over 2004 by 5 percent and 8.8 percent in the Southeast and Florida orders respectively, and in 2006, producer milk increased over 2005 by 6.8 percent and stayed the same in the Southeast and Florida orders, respectively. According to the Market Administrator for the Southeast and Florida orders, the administrative assessments implemented in 2004, with the increase in producer milk during 2004-2006 and efforts to control costs, have been sufficient to cover operating expenses and build an adequate reserve level. The witness added that the Market Administrator continues to take measures to control costs. The witness said that from 2000-2006, cost control measures included a 15 percent reduction in staff through attrition, increased use of technology to hold meetings and conduct audits, a reduction in travel expenses and a decrease in communication costs. The Market Administrator for the Southeast and Florida orders explained that Proposal 2 seeks to limit an average of 12.3 percent of allowable diversions in the Southeast order, which would reduce the amount of milk pooled on the order, as well as the value of administrative assessments used to fund order operations. The witness also noted a decision effective December 1, 2006 (71 FR 62337), that reduced allowable diversions by the volume of transportation credit claims. The witness also expressed concern that the downward trend in southeast milk production and marketing decisions made by handlers provides an increased potential for variability in the revenue available for order operations. The Market Administrator for the Southeast and Florida orders concluded that while the proposals seek to increase the maximum assessment rate from 5 cents per cwt to 8 cents per cwt, the 8 cents per cwt would not necessarily be the rate charged. The witness stressed that the assessed rate would only be high enough to cover operating expenses and maintain the mandated reserve level as approved by the Deputy Administrator for Dairy Programs. A post-hearing brief submitted on behalf of Dairy Cooperative Marketing Association
(DCMA)expressed support for the market administrator assessment increase for the Appalachian, Southeast and Florida milk orders in Proposals 4, 5 and 6, respectively. The hearing record reveals that fluctuations in the volumes of milk pooled on the Appalachian, Southeast and Florida orders can be attributed to a combination of declining milk supply and the tightening of diversion limits in all three marketing areas. This combination can reduce Market Administrator revenues to a level too low for the proper administration of the orders while maintaining the mandated reserve level. The recommended adoption of Proposals 4, 5 and 6 will create a more stable revenue stream for the administration of the three southeast orders. It is reasonable to increase the maximum administrative assessment rate to 8 cents per cwt in the Appalachian, Southeast and Florida orders to ensure that the Market Administrators have the proper funds to carry out all of the services provided by the three marketing areas. While the maximum administrative assessment rate should be increased to 8 cents per cwt in the Appalachian, Southeast and Florida orders, the actual rate charged should only be as high as necessary to properly administer the orders and provide necessary services to market participants. Rulings on Proposed Findings and Conclusions Briefs and proposed findings and conclusions were filed on behalf of certain interested parties. These briefs, proposed findings and conclusions and the evidence in the record were considered in making the findings and conclusions set forth above. To the extent that the suggested findings and conclusions filed by interested parties are inconsistent with the findings and conclusions set forth herein, the requests to make such findings or reach such conclusions are denied for the reasons previously stated in this decision. General Findings The findings and determinations hereinafter set forth supplement those that were made when the Appalachian, Southeast and Florida orders were first issued and when they were amended. The previous findings and determinations are hereby ratified and confirmed, except where they may conflict with those set forth herein.
(a)The tentative marketing agreement and the order, as hereby proposed to be amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;
(b)The parity prices of milk as determined pursuant to section 2 of the Act are not reasonable in view of the price of feeds, available supplies of feeds, and other economic conditions which affect market supply and demand for the milk in the marketing area, and the minimum prices specified in the tentative marketing agreement and the order, as hereby proposed to be amended, are such prices as will reflect the aforesaid factors, insure a sufficient quantity of pure and wholesome milk, and be in the public interest; and
(c)The tentative marketing agreement and the order, as hereby proposed to be amended, will regulate the handling of milk in the same manner as, and will be applicable only to persons in the respective classes of industrial and commercial activity specified in, the marketing agreement upon which a hearing has been held. Recommended Marketing Agreements and Order Amending the Orders The recommended marketing agreement is not included in this decision because the regulatory provisions thereof would be the same as those contained in the order, as hereby proposed to be amended. The following order amending the order, as amended, regulating the handling of milk in the Appalachian, Southeast and Florida marketing areas is recommended as the detailed and appropriate means by which the foregoing conclusions by be carried out. List of Subjects in 7 CFR Part 1005, 1006 and 1007 Milk marketing orders. For the reasons set forth in the preamble, 7 CFR Parts 1005, 1006 and 1007, are proposed to be amended as follows: PARTS 1005, 1006 AND 1007—MILK IN THE APPALACHIAN, SOUTHEAST AND FLORIDA MARKETING AREAS 1. The authority citation for 7 CFR part 1005 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. Section 1005.85 is revised, to read as follows: § 1005.85 Assessment for order administration. On or before the payment receipt date specified under § 1005.71, each handler shall pay to the market administrator its pro rata share of the expense of administration to the order at a rate specified by the market administrator that is no more than 8 cents per cwt with respect to:
(a)Receipts of producer milk (including the handler's own production) other than such receipts by a handler described in § 1000.9(c) that were delivered to pool plants of other handlers;
(b)Receipts from a handler described in § 1000.9(c);
(c)Receipts of concentrated fluid milk products from unregulated supply plants and receipts of nonfluid milk products assigned to Class I use pursuant to § 1000.43(d) and other source milk allocated to Class I pursuant to § 1000.43(a)(3) and
(8)and the corresponding steps of § 1000.44(b), except other source milk that is excluded from the computations pursuant to § 1005.60(h) and (i); and
(d)Route disposition in the marketing area from a partially regulated distributing plant that exceeds the skim milk and butterfat subtracted pursuant to § 1000.76(a)(1)(i) and (ii). 3. Section 1006.85 is revised to read as follows: § 1006.85 Assessment for order administration. On or before the payment receipt date specified under § 1006.71, each handler shall pay to the market administrator its pro rata share of the expense of administration of the order at a rate specified by the market administrator that is no more than 8 cents per hundredweight with respect to:
(a)Receipts of producer milk (including the handler's own production) other than such receipts by a handler described in § 1000.9(c) that were delivered to pool plants of other handlers;
(b)Receipts from a handler described in § 1000.9(c);
(c)Receipts of concentrated fluid milk products from unregulated supply plants and receipts of nonfluid milk products assigned to Class I use pursuant to § 1000.43(d) and other source milk allocated to Class I pursuant to § 1000.44(a)(3) and
(8)and the corresponding steps of § 1000.44(b), except other source milk that is excluded from the computations pursuant to § 1007.60(h) and (i); and
(d)Route disposition in the marketing area from a partially regulated distributing plant that exceeds the skim milk and butterfat subtracted pursuant to § 1000.76(a)(1)(i) and (ii). 4. Section 1007.85 is revised, to read as follows: § 1007.85 Assessment for order administration. On or before the payment receipt date specified under § 1007.71, each handler shall pay to the market administrator its pro rata share of the expense of administration of the order at a rate specified by the market administrator that is no more than 8 cents per hundredweight with respect to:
(a)Receipts of producer milk (including the handler's own production) other than such receipts by a handler described in § 1000.9(c) that were delivered to pool plants of other handlers;
(b)Receipts from a handler described in § 1000.9(c);
(c)Receipts of concentrated fluid milk products from unregulated supply plants and receipts of nonfluid milk products assigned to Class I use pursuant to § 1000.43(d) and other source milk allocated to Class I pursuant to § 1000.44(a)(3) and
(8)and the corresponding steps of § 1000.44(b), except other source milk that is excluded from the computations pursuant to § 1007.60(h) and (i); and
(d)Route disposition in the marketing area from a partially regulated distributing plant that exceeds the skim milk and butterfat subtracted pursuant to § 1000.76(a)(1)(i) and (ii). Dated: February 25, 2008. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E8-3846 Filed 2-28-08; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF ENERGY 10 CFR Part 216 48 CFR Parts 911 and 952 RIN 1991-AB69 Defense Priorities and Allocations System AGENCY: Department of Energy. ACTION: Notice of proposed rulemaking. SUMMARY: This notice of proposed rulemaking
(NOPR)amends Department of Energy
(DOE)regulations at 10 CFR part 216 which implement DOE's delegated authority under section 101(c) of the Defense Production Actof 1950 (DPA). Section 101(c) of the DPA provides authority to the President of the United States (President) to require the allocation of, or priority performance under contracts or orders relating to, materials and equipment, services, or facilities, in order to maximize domestic energy supplies, if the President makes certain findings. The President's authority under section 101(c) was delegated to the Secretary of Commerce and the Secretary of Energy. The rulemaking would make a number of changes to part 216 to reflect a 1991 amendment of the DPA which broadens the scope of authority in section 101(c). Because DOE does not expect to receive any significant adverse comments, this regulatory action is also being issued as a direct final rule in today's issue of the **Federal Register** . DATES: Public comments on the amendment proposed herein will be accepted until March 31, 2008. ADDRESSES: This notice of proposed rulemaking is available and comments may be submitted online at * http:// www.Regulations.gov. * Comments may be submitted by e-mail to *Mike.Soboroff@hq.doe.gov.* Comments may be mailed to: Mike Soboroff, U.S. Department of Energy, Office of Electricity and Energy Assurance, OE-30, 1000 Independence Avenue, SW., Washington, DC 20585. Comments by e-mail are encouraged. FOR FURTHER INFORMATION CONTACT: Mike Soboroff at
(202)586-4936 or via e-mail at *Mike.Soboroff@hq.doe.gov.* SUPPLEMENTARY INFORMATION: This NOPR proposes to amend DOE regulations at 10 CFR part 216, which implement DOE's delegated authority under section 101(c) of the DPA. Section 101(c) provides authority to require the allocation of, or priority performance under contracts or orders relating to, materials and equipment, services, or facilities, in order to maximize domestic energy supplies, if DOE and the Department of Commerce make certain findings. The NOPR would make a number of technical changes to part 216 regulations to reflect a 1991 amendment, which broadens the scope of authority in section 101(c), and Executive Order 12919, (June 3, 1994). The NOPR also proposes conforming changes in the Department of Energy Acquisition Regulation at 48 CFR parts 911 and 952. Today, DOE is also publishing, elsewhere in this issue of the **Federal Register** , a direct final rule that makes changes to the DOE regulations regarding materials allocation and priority performance under contracts or orders to maximize domestic energy supplies. The amendments in the direct final rule are identical to the amendments that are being proposed in this NOPR. As explained in the preamble of the direct final rule, DOE considers these amendments to be non-controversial and unlikely to generate any significant adverse comments. If no significant adverse comments are received by DOE on the amendments, the direct final rule will become effective on the date specified in that rule, and there will be no further action on this proposal. If significant adverse comments are timely received on the direct final rule, the direct final rule will be withdrawn. The public comments will then be addressed in a subsequent final rule based on the rule proposed in this NOPR. Because DOE will not institute a second comment period on this proposed rule, any party interested in commenting should do so during this comment period. For further supplemental information, the detailed rationale, and the rule amendment, see the information provided in the direct final rule in this issue of the **Federal Register** . List of Subjects 10 CFR Part 216 Energy, Government contracts, Reporting and recordkeeping requirements, Strategic and critical materials. 48 CFR Part 911 Government procurement. 48 CFR Part 952 Government procurement, Reporting and recordkeeping requirements. Issued in Washington, DC on February 20, 2008. Edward R. Simpson, Director, Office of Procurement and Assistance Management, Department of Energy. William N. Bryan, Deputy Assistant Secretary, Infrastructure Security and Energy Restoration, Department of Energy. David O. Boyd, Director, Office of Acquisition and Supply Management, National Nuclear Security Administration. [FR Doc. E8-3776 Filed 2-28-08; 8:45 am] BILLING CODE 6450-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0222; Directorate Identifier 2007-NM-300-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Model A300 and A300-600 Series Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Due to several crack findings in the area of wing centre box lower aft corner at FR47, this area of structure has been subjected to accomplishment of several inspection Service Bulletins rendered mandatory in accordance with Airworthiness Limitation Items requirement for A300 aircraft and Airworthiness Directive
(AD)F-2004-159 for A300-600 aircraft [which corresponds to FAA AD 2005-23-08]. This AD is published * * * in order to control or correct the development of cracks, which could affect the structural integrity of the aircraft. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by March 31, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Tom Stafford, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1622; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0222; Directorate Identifier 2007-NM-300-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2007-0150, dated May 22, 2007 [corrected May 23, 2007] (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Due to several crack findings in the area of wing centre box lower aft corner at FR47, this area of structure has been subjected to accomplishment of several inspection Service Bulletins [SBs] rendered mandatory in accordance with Airworthiness Limitation Items requirement for A300 aircraft and Airworthiness Directive
(AD)F-2004-159 for A300-600 aircraft [which corresponds to FAA AD 2005-23-08]. This AD is published in order to render mandatory inspection subsequent to accomplishment of repair SB A300-53-0282 or A300[-53]-0291 or A300-57-6069 in the affected area. The SB A300-53-0381, A300-53-0383 and A300-57-6102 define the various configurations for the mandatory [repetitive] inspections to be conducted in order to control or correct the development of cracks [in the center wing box at FR47], which could affect the structural integrity of the aircraft. The inspections include x-ray, high frequency eddy current, visual, and ultrasonic inspections. Corrective actions include contacting Airbus if any cracking is found, repairing if any cracking is found, and doing other specified actions. The other specified actions include contacting Airbus for oversizing fastener holes, oversizing fastener holes, installing new fasteners, and installing new plugs. The initial compliance times range from 10,800 flight hours or 23,300 flight cycles, whichever occurs first, to 30,200 flight hours or 33,500 flight cycles, whichever occurs first, after doing the repair, depending on the airplane configuration and inspection area. The repetitive intervals range from 500 flight cycles or 1,100 flight cycles, whichever occurs first, to 45,500 flight cycles or 61,500 flight hours, whichever occurs first, depending on the airplane configuration and inspection area. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Airbus has issued Service Bulletins A300-53-0381, dated January 15, 2007; A300-53-0383, dated January 11, 2007; and A300-57-6102, dated January 12, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 107 products of U.S. registry. We also estimate that it would take about 22 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $188,320, or $1,760 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Airbus:** Docket No. FAA-2008-0222; Directorate Identifier 2007-NM-300-AD. Comments Due Date
(a)We must receive comments by March 31, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Airbus Model A300 and A300-600 series airplanes, certificated in any category, as listed in paragraphs (c)(1), (c)(2), and (c)(3) of this AD.
(1)Airbus Model A300 B2-1C, B2-203 and B2K-3C models, all serial numbers that have been repaired in accordance with Airbus Service Bulletin A300-53-0282.
(2)Airbus Model A300 B4-103, B4-203, and B4-2C, all serial numbers that have been repaired in accordance with Airbus Service Bulletin A300-53-0291.
(3)Airbus Model A300 B4-601, B4-603, B4-605R, B4-620, B4-622, B4-622R, C4-605R Variant F, and F4-605R models, all serial numbers that have been repaired in accordance with Airbus Service Bulletin A300-57-6069. Subject
(d)Air Transport Association
(ATA)of America Codes 53 and 57: Fuselage and Wings. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Due to several crack findings in the area of wing centre box lower aft corner at FR47, this area of structure has been subjected to accomplishment of several inspection Service Bulletins [SBs] rendered mandatory in accordance with Airworthiness Limitation Items requirement for A300 aircraft and Airworthiness Directive
(AD)F-2004-159 for A300-600 aircraft [which corresponds to FAA AD 2005-23-08]. This AD is published in order to render mandatory an inspection subsequent to accomplishment of repair SB A300-53-0282 or A300[-53]-0291 or A300-57-6069 in the affected area. The SB A300-53-0381, A300-53-0383 and A300-57-6102 define the various configurations for the mandatory [repetitive] inspections to be conducted in order to control or correct the development of cracks [in the center wing box at FR47], which could affect the structural integrity of the aircraft. The inspections include x-ray, high frequency eddy current, visual, and ultrasonic inspections. Corrective actions include contacting Airbus if any cracking is found, repairing if any cracking is found, and doing other specified actions. The other specified actions include contacting Airbus for oversizing fastener holes, oversizing fastener holes, installing new fasteners, and installing new plugs. Actions and Compliance
(f)Unless already done, do the following actions.
(1)Except as provided by paragraphs (f)(1)(i), (f)(1)(ii), (f)(1)(iii), (f)(1)(iv), and (f)(1)(v) of this AD, at the threshold defined in paragraph 1.E. “Compliance” of the applicable service bulletin listed in Table 1 of this AD and according to the Accomplishment Instructions of the applicable service bulletin, perform all applicable inspections and, before further flight, perform all applicable other specified actions, of FR47 forward fitting vertical splice (including crack stop hole), crack stop hole (depending on cracks length and position), center wing box lower panel, and reinforced parts (internal angle, lower external splice and external fitting). Table 1.—Airbus Service Bulletins Service Bulletin Date A300-53-0381 January 15, 2007. A300-53-0383 January 11, 2007. A300-57-6102 January 12, 2007.
(i)Where the tables in 1.E. Compliance of the service bulletins listed in Table 1 of this AD contain compliance times in both flight cycles and flight hours, this AD requires that the corresponding actions be done at the earlier of the flight cycle and flight hour compliance times.
(ii)Where any table in 1.E. Compliance of the service bulletins listed in Table 1 of this AD specifies measurements for LA and LB and the table does not list the unit of measurements, the unit of measurement is millimeters (mm).
(iii)Where any table in 1.E. Compliance of the service bulletins listed in Table 1 of this AD specifies exact measurements in the rows of the table for LA, use the ranges specified in Table 2 of this AD. Table 2.—Ranges for LA Where row of the table specifies— Use— LA = 0 LA = 0 LA = 10 0 <LA ≤10mm LA = 15 10mm <LA ≤15mm LA = 20 15mm <LA ≤20mm
(iv)Where in 1.E. Compliance of the service bulletins listed in Table 1 of this AD the service bulletins specify a compliance time after receipt of the service bulletin, this AD requires compliance within the specified compliance time after the effective date of this AD.
(v)Where any table in 1.E. Compliance of the service bulletins listed in Table 1 of this AD specifies measurements of LA >40mm, this AD requires that the corresponding action be done if LA ≥ to 40mm.
(2)If any crack is detected during any inspection required by paragraph (f)(1) of this AD, before further flight, contact Airbus and repair.
(3)Repeat the actions specified in paragraph (f)(1) of this AD at the intervals defined in paragraph 1.E. “Compliance” of the applicable service bulletin listed in Table 1 of this AD and according to the Accomplishment Instructions of the applicable service bulletin, except as provided by paragraphs (f)(1)(i), (f)(1)(ii), (f)(1)(iii), and (f)(1)(v) of this AD.
(4)Within 30 days after doing the inspection required by paragraph (f)(1) of this AD or within 30 days after the effective date of this AD, whichever occurs later, report the first inspection results, whatever they may be, to Airbus as specified in the applicable service bulletin listed in Table 1 of this AD. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: The MCAI and service bulletin did not provide adequate descriptions for certain compliance times. We have clarified the compliance times in paragraphs (f)(1)(i), (f)(1)(ii), (f)(1)(iii), (f)(1)(iv), and (f)(1)(v) of this AD. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Tom Stafford, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1622; fax
(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI EASA Airworthiness Directive 2007-0150, dated May 22, 2007 [corrected May 23, 2007], and the Airbus Service Bulletins listed in Table 1 of this AD, for related information. Issued in Renton, Washington, on February 21, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-3823 Filed 2-28-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0135; Directorate Identifier 2007-NM-345-AD] RIN 2120-AA64 Airworthiness Directives; Short Brothers Model SD3-60 Airplanes Equipped with an Auxiliary Fuel Tank System Installed in Accordance with Supplemental Type Certificate
(STC)SA00404AT AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Short Brothers Model SD3-60 airplanes. This proposed AD would require deactivation of auxiliary fuel tank systems installed in accordance with Supplemental Type Certificate
(STC)SA00404AT. This proposed AD results from fuel tank system review requirements done in accordance with Special Federal Aviation Regulation No. 88 (SFAR 88), which identified potential unsafe conditions. We are proposing this AD to prevent the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. DATES: We must receive comments on this proposed AD by April 14, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Robert Bosak, Aerospace Engineer, Propulsion and Services Branch, ACE-118A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, Suite 450, Atlanta, Georgia 30349; telephone
(770)703-6094; fax
(770)703-6097. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0135; Directorate Identifier 2007-NM-345-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (67 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate
(TC)and supplemental type certificate
(STC)design approval) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to design approval holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with another latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Supplemental Type Certificate
(STC)SA00404AT for Atlantic Reconnaissance Auxiliary Fuel Tank System The auxiliary fuel tank system STC consists of two double-wall aluminum auxiliary fuel tanks having electrical fuel quantity indication systems (FQIS), flight deck control and annunciation panels, float level switches, valves and venting systems, and electrical wire connections and bonding methods. Atlantic Reconnaissance, the STC holder, has not complied with the requirements of SFAR 88, paragraph 2. The requirements of that paragraph include providing a safety review, and providing any necessary design changes and maintenance and inspection instructions to preclude the existence or development of an ignition source within the fuel tank system of the airplane. FAA's Findings Atlantic Reconnaissance has not provided the design or service information required under SFAR 88 that would lead the FAA to make a finding of compliance; therefore, we must mandate the deactivation of all Atlantic Reconnaissance auxiliary fuel tank systems installed in accordance with STC SA00404AT. If operators do not wish to deactivate their auxiliary fuel tanks, we will consider requests for alternative methods of compliance (AMOCs). Once an operator has deactivated the tank as required by this proposed AD, the operator might wish to remove the tank. This would require a separate design approval, if an approved tank removal procedure does not exist. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. For this reason, we are proposing this AD, which would require deactivation to prevent usage of the auxiliary fuel tank system installed in accordance with STC SA00404AT. Explanation of Compliance Time In most ADs, we adopt a compliance time allowing a specified amount of time after the AD's effective date. In this case, however, the FAA has already issued regulations that require operators to revise their maintenance/inspection programs to address fuel tank safety issues. The compliance date for these regulations is December 16, 2008. To provide for coordinated implementation of these regulations and this proposed AD, we are using this same compliance date in this proposed AD. Costs of Compliance The following table provides the estimated costs for the 1 U.S.-registered airplane to comply with this proposed AD. Estimated Costs Action Work hours Average labor rate per hour Parts Fleet cost Report 1 $80 None $80 Preparation of tank deactivation procedure 80 80 None 6,400 Physical tank deactivation 30 80 $1,200 3,600 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Short Brothers PLC:** Docket No. FAA-2008-0135; Directorate Identifier 2007-NM-345-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by April 14, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Short Brothers Model SD3-60 airplanes, certificated in any category and equipped with an auxiliary fuel tank system installed in accordance with Supplemental Type Certificate SA00404AT. Unsafe Condition
(d)This AD results from fuel tank system review requirements done in accordance with Special Federal Aviation Regulation No. 88 (SFAR 88), which were not conducted by the STC holder, for identification of potential unsafe conditions and corrective actions. We are issuing this AD to prevent the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Report
(f)Within 45 days after the effective date of this AD, submit a report to the Manager, Atlanta Aircraft Certification Office (ACO), FAA. The report must include the information listed in paragraphs (f)(1) and (f)(2) of this AD. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements contained in this AD, and assigned OMB Control Number 2120-0056.
(1)The airplane registration and serial number.
(2)The usage frequency in terms of total number of flights per year and total number of flights per year for which the auxiliary fuel tank system is used. Prevent Usage of Auxiliary Fuel Tank
(g)Before December 16, 2008, deactivate the auxiliary fuel tank system, in accordance with a deactivation procedure approved by the Manager of the Atlanta ACO. Any auxiliary fuel tank system component that remains on the airplane must be secured and must have no effect on the continued operational safety and airworthiness of the airplane. Deactivation may not result in the need for additional Instructions for Continued Airworthiness (ICA). Note 1: Appendix A of this AD provides criteria that must be included in the deactivation procedure. The proposed deactivation procedures should be submitted to the Atlanta ACO as soon as possible to ensure timely review and approval, prior to implementation. Note 2: For technical information, contact Robert Bosak, Aerospace Engineer, Propulsion and Services Branch, ACE-118A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, Suite 460, Atlanta, Georgia 30349; telephone
(770)703-6094; fax
(770)703-6097. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Atlanta ACO, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Appendix A—Deactivation Criteria The auxiliary fuel tank system deactivation procedure required by paragraph
(g)of this AD must address the following actions.
(1)Permanently drain the auxiliary fuel tank system tanks, and clear them of fuel vapors to eliminate the possibility of out-gassing of fuel vapors from the emptied auxiliary tank.
(2)Disconnect all auxiliary fuel tank system electrical connections from the fuel quantity indication system (FQIS), float, pressure and transfer valves and switches, and all other electrical connections required for auxiliary fuel tank system operation, and stow them at the auxiliary fuel tank interface.
(3)Disconnect all auxiliary fuel tank system fuel supply and fuel vent plumbing interfaces with airplane original equipment manufacturer
(OEM)fuel tanks, cap them at the airplane tank side, and secure them. All disconnected auxiliary fuel tank system vent systems must not alter the OEM fuel tank vent system configuration or performance. All empty auxiliary fuel tank system tanks must be vented to eliminate the possibility of structural deformation during cabin decompression. The configuration must not permit the introduction of fuel vapor into any compartments of the airplane.
(4)Pull and collar all circuit breakers used to operate the auxiliary fuel tank system.
(5)Revise the weight and balance document, if required, and obtain FAA approval for any changes to the weight and balance document.
(6)Amend the applicable sections of the applicable Airplane Flight Manual
(AFM)to indicate that the auxiliary fuel tank system is deactivated. Remove auxiliary fuel tank system operating procedures to ensure that only the OEM fuel system operational procedures are contained in the AFM. Amend the Limitations Section of the AFM to indicate that the AFM Supplement for the STC is not in effect. Place a placard in the flight deck indicating that the auxiliary fuel tank system is deactivated. The AFM revisions specified in this paragraph may be accomplished by inserting a copy of this AD into the AFM.
(7)Amend the applicable sections of the applicable airplane maintenance manual to remove auxiliary fuel tank system maintenance procedures.
(8)After the auxiliary fuel tank system is deactivated, accomplish procedures such as leak checks, pressure checks, and functional checks deemed necessary before returning the airplane to service. These procedures must include verification that the basic airplane OEM FQIS, fuel distribution, and fuel venting systems function properly and have not been adversely affected by deactivation of the auxiliary fuel tank system.
(9)Include with the proposed deactivation procedures any relevant information or additional steps that are deemed necessary by the operator to comply with the deactivation of the auxiliary fuel tank system and return of the airplane to service. Issued in Renton, Washington, on February 21, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-3825 Filed 2-28-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF LABOR Employee Benefits Security Administration 29 CFR Part 2510 RIN 1210-AB02 Amendment of Regulation Relating to Definition of “Plan Assets”—Participant Contributions AGENCY: Employee Benefits Security Division, Department of Labor. ACTION: Proposed rule. SUMMARY: This document would, upon adoption, establish a safe harbor period of 7 business days during which amounts that an employer has received from employees or withheld from wages for contribution to employee benefit plans with fewer than 100 participants would not constitute “plan assets” for purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA), and the related prohibited transaction provisions of the Internal Revenue Code. This amendment would provide greater certainty concerning when participant contributions held by an employer do not constitute “plan assets.” The proposed rule, if adopted, would affect the sponsors and fiduciaries of contributory group welfare and pension plans covered by ERISA, including 401(k) plans, as well as the participants and beneficiaries covered by such plans and recordkeepers, and other service providers to such plans. DATES: Written comments on the proposed amendment should be received by the Department on or before April 29, 2008. ADDRESSES: To facilitate the receipt and processing of comments, EBSA encourages interested persons to submit their comments electronically to *www.regulations.gov* (follow instructions for submission of comments) or *e-ORI@dol.gov* . Persons submitting comments electronically are encouraged not to submit paper copies. Persons interested in submitting comments on paper should send or deliver their comments to: Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5655, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, Attn: Participant Contribution Regulation Safe Harbor. All comments will be available to the public, without charge, online at *www.regulations.gov* and *www.dol.gov/ebsa,* and at the Public Disclosure Room, Room N-1513, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. FOR FURTHER INFORMATION CONTACT: Janet A. Walters, Office of Regulations and Interpretations, Employee Benefits Security Administration, U.S. Department of Labor, Washington, DC 20210,
(202)693-8510. This is not a toll free number. SUPPLEMENTARY INFORMATION: A. Background In 1988, the Department of Labor (the Department) published a final rule (29 CFR 2510.3-102) in the **Federal Register** (53 FR 17628, May 17, 1988), defining when certain monies that a participant pays to, or has withheld by, an employer for contribution to an employee benefit plan are “plan assets” for purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA) and the related prohibited transaction provisions of the Internal Revenue Code (the Code). 1 The 1988 regulation provided that the assets of a plan included amounts (other than union dues) that a participant or beneficiary pays to an employer, or amounts that a participant has withheld from his or her wages by an employer, for contribution to a plan, as of the earliest date on which such contributions can reasonably be segregated from the employer's general assets, but in no event to exceed 90 days from the date on which such amounts are received or withheld by the employer. In 1996, the Department published in the **Federal Register** (61 FR 41220, August 7, 1996), amendments to the 1988 regulation modifying the outside limit beyond which participant contributions to a pension plan become plan assets. Under the 1996 amendments, the outer limit for participant contributions to a pension plan was changed to the 15th business day of the month following the month in which participant contributions are received by the employer (in the case of amounts that a participant or beneficiary pays to an employer) or the 15th business day of the month following the month in which such amounts would otherwise have been payable to the participant in cash (in the case of amounts withheld by an employer from a participant's wages). The general rule—providing that amounts paid to or withheld by an employer become plan assets on the earliest date on which they can reasonably be segregated from the employer's general assets—did not change. The maximum time period applicable to welfare plans also did not change as a result of the 1996 amendments. 1 While the rule effects the application of ERISA and Code provisions, it has no implications for and may not be relied upon to bar criminal prosecutions under 18 U.S.C. 644. *See* paragraph
(a)of 29 CFR 2510.3-102. In the course of investigations of 401(k) and other contributory pension plans and in discussions with representatives of employers, plan administrators, consultants and others, it is commonly represented to the Department that, while efforts have been made to clarify the application of the general rule (i.e., participant contributions become plan assets on the earliest date on which they can reasonably be segregated from the employer's general assets), 2 many employers, as well as their advisers, continue to be uncertain as to how soon they must forward these contributions to the plan in order to avoid the requirements associated with holding plan assets. At the same time, the Department devotes significant enforcement resources to cases involving delinquent employee contributions and the vast majority of applications under the Department's Voluntary Fiduciary Correction Program involve delinquent employee contribution violations. 3 2 *See* preamble to Final Rule, 61 FR 41220, 41223 (August 7, 1996). *See also* Field Assistance Bulletin 2003-2 (May 7, 2003). 3 Since the inception of the Voluntary Fiduciary Correction Program in 2000, close to 90% of the applications have involved delinquent participant contribution violations. The Department believes that it is in the interest of both plan sponsors and plan participants and beneficiaries to amend the participant contribution regulation to provide a higher degree of compliance certainty with respect to when an employer has made timely deposits of participant contributions to the plan. In this regard, the Department proposes a safe harbor under which participant contributions will be considered to have been deposited with the plan in a timely fashion when such contributions are deposited within 7 business days. The Department believes that the adoption of such a safe harbor affords certainty to employers receiving participant contributions regarding the status of such funds. At the same time, the safe harbor would protect participants by encouraging employers to deposit participant contributions with plans within the safe harbor period. Under the proposed safe harbor, participant contributions to a pension or welfare benefit plan with fewer than 100 participants at the beginning of the plan year will be treated as having been made to the plan in accordance with the general rule (i.e., on the earliest date on which such contributions can reasonably be segregated from the employer's general assets) when contributions are deposited with the plan no later than the 7th business day following the day on which such amount is received by the employer (in the case of amounts that a participant or beneficiary pays to an employer) or the 7th business day following the day on which such amount would otherwise have been payable to the participant in cash (in the case of amounts withheld by an employer from a participant's wages). As under the current regulation, participant contributions will be considered deposited when placed in an account of the plan, without regard to whether the contributed amounts have been allocated to specific participants or investments of such participants. In attempting to define the appropriate period for a safe harbor, the Department reviewed data collected in the course of its investigations of possible failures to deposit participant contributions in a timely fashion. These data indicate that smaller plans, typically need more time than larger plans to segregate participant contributions from their general assets. In this regard, the data indicates that on average, employers with small plans—defined for purposes of this regulation as employers sponsoring plans with fewer than 100 participants—are capable of depositing participant contributions with their plans, on a consistent basis, by the 7th business day following the date of receipt or withholding. On the basis of this data, the Department concluded that adoption of a “7-business day” safe harbor rule would allow most employers with small plans to take advantage of the safe harbor and, thereby, benefit from the certainty of compliance afforded by the proposed regulation. Moreover, the Department believes that adoption of a “7-business day” safe harbor rule would present little, if any, additional risk to plan participants and beneficiaries. In this regard, the Department believes that most employers with small plans that are taking longer than 7 business days to deposit participant contributions will expedite the depositing of those contributions to take advantage of the safe harbor. The Department also believes that where participant contributions are being made by employers with small plans within a period shorter than 7 business days, few employers with small plans will incur the costs attendant to modifying their payroll system in order to hold such contributions for a few additional days. The Department invites comments on the proposed safe harbor. In the case of employers sponsoring large plans—defined for purposes of this regulation as employers sponsoring plans with 100 or more participants—it is unclear if these plans have the same need for a safe harbor period within which participant contributions should be required to be deposited with a plan. The Department intends, as part of the final regulation, to include a safe harbor for employers with large plans if commenters provide information and data sufficient to evaluate the current contribution practices of such employers and to conclude that it is a net benefit to such employers and participants to have a safe harbor. In this regard, the Department specifically requests information concerning the time period within which employers with large plans deposit participant contributions following the date of receipt or withholding. The Department also requests comments on the need for a safe harbor, and the corresponding size of the plans for which there appears to be a need for such a safe harbor. The Department proposes to amend paragraph
(f)of 2510.3-102 to update the examples and illustrate the safe harbor and invites comments on the amendment of paragraph
(f)of 2510.3-102. As proposed, the safe harbor would be available for both participant contributions to pension benefit plans and participant contributions to welfare benefit plans. The Department also is proposing to amend paragraph (a)(1) of 2510.3-102 to extend the application of the regulation to amounts paid by a participant or beneficiary or withheld by an employer from a participant's wages for purposes of repaying a participant's loan (regardless of plan size). In Advisory Opinion 2002-02A (May 17, 2002), 4 the Department expressed the view that, while the participant contribution regulation, as drafted, did not apply to participant loan repayments, the principles for determining when participant loan repayments become plan assets generally are the same as those specified in the participant contribution regulation. The Department, therefore, concluded that participant loan repayments made to an employer for purposes of transmittal to the plan, or withheld from employee wages by the employer for transmittal to the plan, become plan assets on the earliest date on which such repayments can reasonably be segregated from the employer's general assets. 4 This advisory opinion may be accessed at *http://www.dol.gov/ebsa/regs/aos/ao2002-02a.html* (May 17, 2002). The proposed amendment to paragraph (a)(1) would adopt the principles applicable to determining when participant loan repayments constitute plan assets. This proposal also would serve to extend the availability of the 7-business day safe harbor to loan repayments to plans with fewer than 100 participants, relief that would not otherwise be available in the absence of this proposal. C. Effective Date and Enforcement Policy The Department contemplates making the safe harbor and the proposed amendments to paragraph (a)(1) and (f)(1) of 2510.3-102 effective on the date of publication of the final regulation in the **Federal Register** . The safe harbor will provide a means for certain employers to assure themselves that they are not holding plan assets, without having to determine that participant contributions were forwarded to the plan at the earliest reasonable date. By providing such assurance, the safe harbor will grant or recognize an exemption or relieve a restriction within the meaning of 5 U.S.C. 553(d)(1). Moreover, the safe harbor will encourage certain employers to take immediate steps to review their systems and, if necessary, shorten the period within which participant contributions are forwarded to the plan in order to take advantage of the safe harbor and, thereby, extend the benefit of earlier contributions to participants and beneficiaries earlier than might otherwise occur with a deferred effective date. In this regard, the Department invites comments concerning the effective date of the final safe harbor amendment. Before the effective date of the final safe harbor regulation, the Department will not assert a violation of ERISA based on the general rule that participant contributions or loan repayments become plan assets on the earliest date on which they can reasonably be segregated from the employer's general assets, so long as such contributions or repayments to a plan with fewer than 100 participants have been transferred to the plan in accordance with the 7-business day safe harbor period in this proposal. D. Regulatory Impact Analysis Summary The proposed safe harbor will provide employers with increased certainty that their remittance practices, to the extent that they meet the safe harbor time limits, will be deemed to comply with the regulatory requirement that participant contributions be forwarded to the plan on the earliest date on which they can reasonably be segregated from the employer's general assets. This increased certainty will produce benefits to employers, participants, and beneficiaries by reducing disputes over compliance and allowing easier oversight of remittance practices. In addition, the tendency to conform to the safe harbor time limit may serve to reduce the existing variations in remittance times, providing increased certainty for employers and other plan sponsors and participants. In the case of employers that expedite their remittance practices to take advantage of the safe harbor, plan participants may derive an additional benefit in the form of increased investment earnings. The Department estimates that accelerated remittances could result in $34.5 million in additional income to be credited annually to participant accounts under the plans if no employers choose to delay remittances in response to the safe harbor and $15 million annually even if all eligible employers were to delay remittances to the full duration of the safe harbor. Costs attendant to the proposed safe harbor arise principally from one-time start-up costs to alter remittance practices to conform to the safe harbor and from any additional on-going administrative costs attendant to quicker, and possibly more frequent, transmissions of participant contributions from employers to plans. The Department believes that the costs likely to arise from either source will be small and that the benefits of this regulation will justify its costs. 5 5 A key factor limiting the cost of this regulation is that it requires no action of the part of any employer, plan, or participant; it creates an incentive for employers to remit participant contributions on more regular schedules. The data, methodology, and assumptions used in developing these estimates are more fully described below in connection with the Department's analyses under Executive Order 12866 and the Regulatory Flexibility Act (RFA). Executive Order 12866 Statement Under Executive Order 12866 (58 FR 51735), the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Under section 3(f) of the Executive Order, a “significant regulatory action” is an action that is likely to result in a rule
(1)having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”);
(2)creating serious inconsistency or otherwise interfering with an action taken or planned by another agency;
(3)materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. OMB has determined that this action is significant under section 3(f)(4) because it raises novel legal or policy issues arising from the President's priorities. Accordingly, the Department has undertaken an analysis of the costs and benefits of the proposed regulation. OMB has reviewed this regulatory action. This proposal would establish a safe harbor rule for employers' timely remittance of participant contributions to employee benefit plans. The safe harbor, as proposed, is available only to employer remittances of participant contributions to plans with fewer than 100 participants. Under the proposed rule, employers that remit participant contributions within 7 business days after the date on which received or withheld would be deemed to have complied with the requirement of 29 CFR 2510.3-102 to treat participant contributions as plan assets “as of the earliest date on which such contributions can reasonably be segregated from the employer's general assets.” This rule is likely to encourage some eligible employers whose current remittance practices involve holding participant contributions for longer than 7 business days to change their remittance practices to conform to the 7-business day time limit. Because the rule is not mandatory and changes in remittance practices are likely to entail some cost to employers, only those employers that believe they will benefit from the protection of the safe harbor will elect to take advantage of the safe harbor. Based on data from the Form 5500 filings for the year 2004, which is the most recent available data, the Department estimates that the proposed safe harbor would be available to an estimated 311,000 single employer defined contributions plans with fewer than 100 participants. 6 These plans hold approximately 18% of the $2.2 trillion held by all contributory single employer defined contribution plans. 7 6 While the safe harbor is available to contributory defined benefit plans and contributory multiemployer defined contribution plans, the number of such plans affected by the regulation is very small. The safe harbor also is available to contributory welfare benefit plans; however, most of these plans are not affected by the regulation, because they are not required to comply with ERISA's trust requirement. Based on available data, contributory single employer defined contribution plans constitute about 97 % of plans that could benefit from the safe harbor. Accordingly, the Department has focused its regulatory impact analysis on contributory single employer defined contribution plans and believes that focusing on such plans provides highly meaningful data for estimating potential impacts. 7 This percentage is based on an EBSA tabulation of its 2004 Form 5500 research file. In order to analyze the potential economic impact of this proposal, the Department examined data from a representative sample of contributory single employer defined contribution pension plans. 8 Using these data, the Department analyzed the current remittance practices of the employers sponsoring these plans, extrapolated the results to characterize the remittance practices of plans in general, and projected the potential impact of this safe harbor rule. The Department considered both the extent to which data on remittance records of these plans reveal a preference or standard practice regarding timing, and the extent to which changes in the length of time between withholding and receipt by the plan might result in an increase (or decrease) in investment income to participants' accounts. 8 The sample data used in this analysis comes from data collected in EBSA Employee Contribution Project 2004 Baseline Project, which was undertaken by the Department in order to develop a better understanding of current employer practices regarding contributory individual account pension plans. The Project was based on a representative sample of 487 contributory, single employer defined contribution plans. In 2004, the Department collected detailed data on the remittance practices of the employers sponsoring the sample plans. The collected data covered the 12-month period preceding the date in 2004 on which EBSA interviewed the employer-sponsor and included, for example, the exact dates on which wages were withheld from employees and the exact dates on which participant contributions were deposited in the plan's accounts. For purposes of this analysis, the sample data has been weighted to the 2004 Form 5500 universe of contributory, single employer defined contribution plans. The sample data indicate that employers' remittance patterns for participant contributions to plans vary substantially, both across payroll periods of an individual employer and across employers. Based on analysis of these data, the Department has concluded that most employers sponsoring plans with fewer than 100 participants will not find it difficult to take advantage of the proposed safe harbor. 9 Twenty-one percent of all plans with fewer than 100 participants for which data was obtained had remittance times within 7 business days for all pay periods; an additional 69% remitted participant contributions for at least some of the employer's payroll periods within 7 business days. Based on this data, the Department has concluded that a 7-business day safe harbor would be achievable for a large majority of the contributory plans and would reduce the time taken to make at least some deposits to a substantial proportion of contributory plans. The Department recognizes that to take advantage of the safe harbor, many of the firms that currently remit employee contributions within 7 business days for some, but not all, pay periods would have to change their remittance schedule from monthly remittances to remittances following each weekly or biweekly pay period. 9 The data indicate that 90% of plans with fewer than 100 participants currently receive at least some participant contributions within 7 business days after withholding. The Department anticipates that a substantial number of employers that currently take longer than 7 business days to remit participant contributions will speed up their remittances in order to take advantage of the safe harbor. At the same time, it is possible that some employers that currently remit participant contributions more quickly than the proposed safe harbor rule will slow their remittances due to the safe harbor. Such behavior might benefit the remitting employers by reducing their administrative costs and by increasing the time they are holding the remittances. However, the Department believes that only a small fraction of that group, if any, would elect to incur the expense and risk of negative participant reaction that might arise from slowing down their remittances to take full advantage of the safe harbor time period, especially because the amount of the potential income transfer on a per-plan basis is very small. 10 The potential consequences of reliance on the safe harbor for earnings on participant contributions are further described in the Benefits section below. 10 The employers having the most to gain from delaying remittances to the full extent that would satisfy the safe harbor would be those who currently remit employee contributions most promptly. For example, an employer that currently remits contributions on the day they are received or withheld and responds to the safe harbor by delaying remittances to the 7-business day safe harbor limit would gain use of the funds for 7 business days. At an annual rate of 8%, the value of the float gain would be less than one-quarter of one percent of employee contributions. Costs On the basis of information from EBSA's Employee Contributions Project 2004 Baseline Project (“ECP”), 11 the Department believes that an estimated 21% of eligible single employer defined contribution plans (approximately 64,000 plans) currently receive all participant contributions within 7 or fewer business days. The employers that sponsor such plans would not have to modify their current systems and, as a result, would incur no additional costs to obtain the compliance certainty available under the safe harbor provisions. On the other hand, 10% of the eligible plans (approximately 32,000 plans) consistently receive participant contributions later than 7 business days from the date of the employer's receipt or withholding. 12 The remaining 69% of the eligible plans (approximately 215,000 plans) are estimated to receive participant contributions within 7 business days for some, but not all, of their payroll dates, and the Department assumes that these employers would have to make only minor modifications in order to take advantage of the safe harbor. 11 See fn. 8, supra. 12 For purposes of this analysis, it is assumed that the sponsors of these plans would have to make significant modification to their remittance practices to take advantage of the safe harbor. In deciding whether to rely on the safe harbor, employers will weigh the benefits of compliance certainty against the cost of changes needed to make quicker and possibly more frequent deposits. Because the cost of modifying remittance practices or systems will depend, to some extent, on the length of time currently taken to make remittances, the Department believes it is reasonable to assume that those employers currently transmitting some of the participant contributions within an 8 to 14 day period may find it less expensive to modify their practices to take advantage of the safe harbor than employers currently operating under remittance practices or systems with longer delays. The cost to the former group of employers to shorten the remittance period to conform to the safe harbor may be modest or negligible. However, the Department has no current, reliable data concerning the cost of required changes relating to shortening the remittance period for participant contributions and therefore did not attempt to estimate that cost. Because conformance to the safe harbor is voluntary, the Department believes that the transition cost for employers electing to conform will be offset by elimination of the current cost attributable to existing uncertainty about how to meet the “earliest date” standard of § 2510.3-102. Those employers that already conform will not incur any costs, but will benefit from the safe harbor. The Department specifically invites information and comments on this point. Benefits The rule will produce benefits for both participants and employers in the form of increased certainty regarding timely remittance of participant contributions to plans. This increased certainty will decrease costs for both employers and participants by reducing the need to determine, on an individualized basis in light of particular circumstances, whether timely remittances have been made. Employers that conform to the safe harbor will also benefit by obviating the need to determine and monitor how quickly participant contributions can be segregated from their general assets. They also will face a reduced risk of challenges to their particular remittance practices from participants and the Department. In the case of plan sponsors that elect to expedite the deposit of participant contributions to take advantage of the safe harbor, contributions will be credited to the investment accounts earlier than previously and will be able to accrue investment earnings for a longer time period. The Department has calculated these potential investment gains, but acknowledges that lack of knowledge about how employers will react to a regulatory safe harbor renders these estimates uncertain. If, for illustration, the safe harbor results in a 7-business day remittance of all remittances that are currently taking more than 7 business days, then the regulatory safe harbor would result in an estimated additional $34.5 million in investment earning for participants each year. 13 These potential gains would be reduced by any losses that would occur due to any slow-down in response to the safe harbor by employers with currently quicker remittance times. The Department, however, believes it unlikely that a significant fraction of employers would slow down remittances for the sole purpose of taking advantage of the minor 14 income transfer resulting from retaining contributions for the full safe harbor period. 15 13 The Department has assumed an average annual return of 8.3% for pension plan assets. This rate is an estimate of the long-term rate of return on defined contribution plan assets implicit in the flow of funds account of the Federal Reserve. 14 The employers having the most to gain from delaying remittances to the full extent that would satisfy the safe harbor would be those who currently remit employee contributions most promptly. For example, an employer that currently remits contributions on the day they are withheld and responds to the safe harbor by delaying remittances to the 7-business day safe harbor limit would gain use of the funds for 7 business days. Valuing the float gain at an annual rate of 8%, its value would be less than one-quarter of one percent of employee contributions. 15 If all employers that currently remit contributions in fewer than 7 days were to slow down their remittance times to 7 days, participants might experience transfer losses of as much as $19.5 million annually, but would nonetheless likely experience an aggregate net gain of $14 million. Alternatives Considered The Department's consideration of alternatives primarily focused on striking the right balance between a time frame that is not so short as to foreclose any meaningful number of plans from taking advantage of the safe harbor and a time frame that is not so long as to create financial incentives for employers to hold participant contributions longer that necessary, taking into account current practices. Among others, the Department considered the following two alternative time periods:
(1)A 5-business day safe harbor, and
(2)a 10-business day safe harbor. After reviewing the available data, however, the Department rejected these alternatives in favor of the proposed 7-business day safe harbor for the reasons discussed below. The 7-business day safe harbor is likely to encourage eligible employers whose remittance practices involve holding participant contributions for longer than 7 business days to change their remittance practices to conform to the 7-business day safe harbor time limit. Currently, only 12 percent of the eligible single employer defined contribution plans consistently receive remittances within 5 business days, compared to the 21 percent that consistently receive remittances within 7 business days. Although a 5-business day safe harbor could provide higher potential gains ($40.5 million at the highest maximum estimate) and lower potential losses ($12.2 million) to participants if employers choose to conform to the safe harbor, the shorter remittance period would likely make it unattractive to many employers, because the shorter safe harbor would increase the disparity from current practices. Any employer anticipating large costs of compliance with the safe harbor might not be convinced that its benefits would be sufficient to justify changing its remittance practices. If, as a result, too few employers adopt the safe harbor, the regulation might fail to produce the intended benefit that would flow from the certainty of uniform remittance practices on which employers and participants can rely. The 10-business day safe harbor, in contrast, was considered to represent little compliance burden, since currently 29 percent of eligible single employer defined contribution plans receive remittances consistently within 10 business days and 94 percent receive remittances that quickly for at least some pay periods. However, because a large proportion of eligible plans currently receive some or all participant contributions more quickly, a safe harbor of 10 business days would entail some risk of producing a net aggregate loss of investment income to participant accounts as compared with current practice. 16 16 If all currently faster remittances were delayed until the tenth business day, annual investment earnings credited to participant accounts could be reduced by as much as $32.3 million. Accelerating all currently slower remittances to the tenth business day would increase such earnings by $27.4 million resulting in an aggregate annual loss of $4.9 million. As part of the ECP, EBSA investigators also made judgments as to reasonable periods for each remittance. These data show that while remittance within 5 business days was consistently reasonable for 48% of eligible plans, that percentage increased to 61% by extending the reasonable period to 7 business days. Thus, the two-day longer reasonable period also has the advantage of being consistently reasonable for a clear majority of eligible plans. A further extension of the safe harbor to 10 business days would further increase (to 81%) the percentage of plans for which the safe harbor is consistently reasonable, but was not proposed because it would risk producing net investment losses for participants if employers were to delay remittances to the full extent permitted under the safe harbor. 17 17 EBSA estimates that if the safe harbor were set at 10 business days, then potential losses to participants of $32 million would exceed potential gains of $27 million. Taking into account the potential costs and benefits presented by the various alternative safe harbors, the Department believes that the proposed 7-business day safe harbor would best balance the current practices of employers and the potential costs to them of change, as well as the value to participants of encouraging quicker transmission of contributions. As explained earlier, the available data indicate that employers sponsoring plans with fewer than 100 participants are generally able to transmit participant contributions within 7 business days of withholding or receipt. Furthermore, the impact of a 7-business day safe harbor is anticipated to be generally favorable to participants and to result in aggregate net gains to their accounts, even in the unlikely event that all employers that currently remit contributions more quickly than 7 business days were to slow down their remittances to the maximum duration of the safe harbor. Paperwork Reduction Act The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995
(PRA)(44 U.S.C. 3506(c)(2)(A)). This helps to ensure that the public can clearly understand the Department's collection instructions and provide the requested information in the desired format and that the Department minimizes the public's reporting burden (in both time and financial resources) and can properly assess the impact of its collection requirements. On August 7, 1996 (61 FR 41220), the Department published in the **Federal Register** a proposed amendment to the Regulation Relating to a Definition of “Plan Assets”—Participant Contributions (29 CFR 2510.3-102), and simultaneously submitted an information collection request
(ICR)to the Office of Management and Budget
(OMB)on the paperwork requirements arising from the proposal. This amendment created a procedure through which an employer could extend the maximum period for depositing participant contributions by an additional 10 business days with respect to participant contributions for a single month. OMB approved the ICR under OMB control number 1210-0100. The current proposed amendment of § 2510.3-102 contained in this notice does not propose or make any change to the extension procedure or add any other information collection, and, accordingly, the Department does not intend to submit this proposal to OMB for review under the PRA. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* )
(RFA)imposes certain requirements with respect to Federal rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act (5 U.S.C. 551 *et seq.* ) and are likely to have a significant economic impact on a substantial number of small entities. Unless an agency certifies that a proposed rule is not likely to have a significant economic impact on a substantial number of small entities, section 603 of the RFA requires that the agency present an initial regulatory flexibility analysis at the time of the publication of the notice of proposed rulemaking describing the impact of the rule on small entities and seeking public comment on such impact. Small entities include small businesses, organizations and governmental jurisdictions. For purposes of analysis under the RFA, the Employee Benefits Security Administration
(EBSA)continues to consider a small entity to be an employee benefit plan with fewer than 100 participants. 18 The basis of this definition is found in section 104(a)(2) of ERISA, which permits the Secretary of Labor to prescribe simplified annual reports for pension plans that cover fewer than 100 participants. Under section 104(a)(3), the Secretary may also provide for exemptions or simplified annual reporting and disclosure for welfare benefit plans. Pursuant to the authority of section 104(a)(3), the Department has previously issued at 29 CFR 2520.104-20, 2520.104-21, 2520.104-41, 2520.104-46 and 2520.104b-10 certain simplified reporting provisions and limited exemptions from reporting and disclosure requirements for small plans, including unfunded or insured welfare plans covering fewer than 100 participants and satisfying certain other requirements. 18 The Department consulted with the Small Business Administration in making this determination as required by 5 U.S.C. 603(c) and 13 CFR 121.903(c). Further, while some large employers may have small plans, in general small employers maintain most small plans. Thus, EBSA believes that assessing the impact of this proposed rule on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business that is based on size standards promulgated by the Small Business Administration
(SBA)(13 CFR 121.201) pursuant to the Small Business Act (15 U.S.C. 631 *et seq.* ). EBSA therefore requests comments on the appropriateness of the size standard used in evaluating the impact of this proposed rule on small entities. EBSA has preliminarily determined that while this rule will impact a substantial number of small entities, it will not have a significant economic impact on these entities. As explained above, the provision being added to the regulation is a safe harbor, compliance with which is wholly voluntary on the part of the employer. Because the proposal would create a safe harbor, rather than a mandatory rule, it is unlikely that any employer will elect to take advantage of the safe harbor if the employer concludes that the benefits of complying with the safe harbor time limit do not exceed the costs of such compliance. Therefore, the Department believes that most of these small plans will elect to take advantage of the safe harbor, provided that doing so does not significantly increase their costs or that any cost increase is offset by reductions in other administrative costs attendant to compliance uncertainty. The Department specifically requests comments on the potential impact of the proposed rule on small entities. Small Business Regulatory Enforcement Fairness Act The proposed rule being issued here is subject to the provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 *et seq.* ) and if finalized will be transmitted to the Congress and the Comptroller General for review. Unfunded Mandates Reform Act Pursuant to provisions of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), this rule does not include any Federal mandate that may result in expenditures by State, local, or tribal governments, or the private sector, which may impose an annual burden of $100 million or more. Federalism Statement Executive Order 13132 (August 4, 1999) outlines fundamental principles of federalism and requires the adherence to specific criteria by federal agencies in the process of their formulation and implementation of policies that have substantial direct effects on the States, the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This proposed rule would not have federalism implications because it has no 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. Section 514 of ERISA provides, with certain exceptions specifically enumerated, that the provisions of Titles I and IV of ERISA supersede any and all laws of the States as they relate to any employee benefit plan covered under ERISA. The requirements implemented in this proposed rule do not alter the fundamental provisions of the statute with respect to employee benefit plans, and as such would have no implications for the States or the relationship or distribution of power between the national government and the States. Statutory Authority This regulation is proposed pursuant to the authority in section 505 of ERISA (Pub. L. 93-406, 88 Stat. 894; 29 U.S.C. 1135) and section 102 of Reorganization Plan No. 4 of 1978 (43 FR 47713, October 17, 1978), effective December 31, 1978 (44 FR 1065, January 3, 1979), 3 CFR 1978 Comp. 332, and under Secretary of Labor's Order No. 1-2003, 68 FR 5374 (Feb. 3, 2003). List of Subjects in 29 CFR Part 2510 Employee benefit plans, Employee Retirement Income Security Act, Pensions, Plan assets. Accordingly, 29 CFR part 2510 is proposed to be amended as follows: PART 2510—DEFINITION OF TERMS USED IN SUBCHAPTERS C, D, E, F, AND G OF THIS CHAPTER 1. The authority citation for part 2510 continues to read as follows: Authority: 29 U.S.C. 1002(2), 1002(21), 1002(37), 1002(38), 1002(40), 1031, and 1135; Secretary of Labor's Order 1-2003, 68 FR 5374; Sec. 2510.3-101 also issued under sec. 102 of Reorganization Plan No. 4 of 1978, 43 FR 47713, 3 CFR, 1978 Comp., p. 332 and E.O. 12108, 44 FR 1065, 3 CFR, 1978 Comp., p. 275, and 29 U.S.C. 1135 note. Sec. 2510.3-102 also issued under sec. 102 of Reorganization Plan No. 4 of 1978, 43 FR 47713, 3 CFR, 1978 Comp., p. 332 and E.O. 12108, 44 FR 1065, 3 CFR, 1978 Comp., p. 275. Section 2510.3-38 is also issued under Sec. 1, Pub. L. 105-72, 111 Stat. 1457. 2. Revise § 2510.3-102, paragraphs
(a)and (f), to read as follows: § 2510.3-102 Definition of “plan assets”—participant contributions. (a)(1) *General rule.* For purposes of subtitle A and parts 1 and 4 of subtitle B of title 1 of ERISA and section 4975 of the Internal Revenue Code only (but without any implication for and may not be relied upon to bar criminal prosecutions under 18 U.S.C. 664), the assets of the plan include amounts (other than union dues) that a participant or beneficiary pays to an employer, or amounts that a participant has withheld from his wages by an employer, for contribution or repayment of a participant loan to the plan, as of the earliest date on which such contributions or repayments can reasonably be segregated from the employer's general assets.
(2)*Safe harbor.* For purposes of paragraph (a)(1) of this section, in the case of a plan with fewer than 100 participants at the beginning of the plan year, any amount deposited with such plan not later than the 7th business day following the day on which such amount is received by the employer (in the case of amounts that a participant or beneficiary pays to an employer), or the 7th business day following the day on which such amount would otherwise have been payable to the participant in cash (in the case of amounts withheld by an employer from a participant's wages), shall be deemed to be contributed or repaid to such plan on the earliest date on which such contributions or participant loan repayments can reasonably be segregated from the employer's general assets.
(f)Examples. The requirements of this section are illustrated by the following examples:
(1)Employer A sponsors a 401(k) plan. There are 30 participants in the 401(k) plan. A has one payroll period for its employees and uses an outside payroll processing service to pay employee wages and process deductions. A has established a system under which the payroll processing service provides payroll deduction information to A within 1 business day after the issuance of paychecks. A checks this information for accuracy within 5 business days and then forwards the withheld employee contributions to the plan. The amount of the total withheld employee contributions is deposited with the trust that is maintained under the plan on the 7th business day following the date on which the employees are paid. Under the safe harbor in paragraph (a)(2) of this section, when the participant contributions are deposited with the plan on the 7th business day following a pay date, the participant contributions are deemed to be contributed to the plan on the earliest date on which such contributions can reasonably be segregated from A's general assets.
(2)Employer B is a large national corporation which sponsors a 401(k) plan with 600 participants. B has several payroll centers and uses an outside payroll processing service to pay employee wages and process deductions. Each payroll center has a different pay period. Each center maintains separate accounts on its books for purposes of accounting for that center's payroll deductions and provides the outside payroll processor the data necessary to prepare employee paychecks and process deductions. The payroll processing service issues the employees' paychecks and deducts all payroll taxes and elective employee deductions. The payroll processing service forwards the employee payroll deduction data to B on the date of issuance of paychecks. B checks this data for accuracy and transmits this data along with the employee 401(k) deferral funds to the plan's investment firm within 3 business days. The plan's investment firm deposits the employee 401(k) deferral funds into the plan on the day received from B. The assets of B's 401(k) plan would include the participant contributions no later than 3 business days after the issuance of paychecks.
(3)Employer C sponsors a self-insured contributory group health plan with 90 participants. Several former employees have elected, pursuant to the provisions of ERISA section 602, 29 U.S.C. 1162, to pay C for continuation of their coverage under the plan. These checks arrive at various times during the month and are deposited in the employer's general account at bank Z. Under paragraphs
(a)and
(b)of this section, the assets of the plan include the former employees' payments as soon after the checks have cleared the bank as C could reasonably be expected to segregate the payments from its general assets, but in no event later than 90 days after the date on which the former employees' participant contributions are received by C. If however, C deposits the former employees' payments with the plan no later than the 7th business day following the day on which they are received by C, the former employees' participant contributions will be deemed to be contributed to the plan on the earliest date on which such contributions can reasonably be segregated from C's general assets. Signed at Washington, DC, this 21st day of February, 2008. Bradford P. Campbell, Assistant Secretary, Employee Benefits Security Administration Department of Labor. [FR Doc. E8-3596 Filed 2-28-08; 8:45 am] BILLING CODE 4510-29-P DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Parts 2 and 7 [Docket No. PTO-T-2007-0051] RIN 0651-AC18 Changes in Rules Regarding Filing Trademark Correspondence by Express Mail or Under a Certificate of Mailing or Transmission AGENCY: United States Patent and Trademark Office, Commerce. ACTIONS: Proposed rule. SUMMARY: The United States Patent and Trademark Office (“Office”) proposes to amend the Trademark Rules of Practice to provide that the procedures for filing trademark correspondence by Express Mail or under a certificate of mailing or transmission do not apply to certain specified documents for which an electronic form is available in the Trademark Electronic Application System (“TEAS”). The purpose of the rule change is to promote electronic filing, increase efficiency, and improve the quality and integrity of critical data in the Office's automated systems. DATES: Comments must be received by April 29, 2008 to ensure consideration. ADDRESSES: The Office prefers that comments be submitted via electronic mail message to *TMMailingRules@uspto.gov.* Written comments may also be submitted by mail to Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451, attention Mary Hannon; by hand delivery to the Trademark Assistance Center, Concourse Level, James Madison Building-East Wing, 600 Dulany Street, Alexandria, Virginia, attention Mary Hannon; or by electronic mail message via the Federal eRulemaking Portal. See the Federal eRulemaking Portal Web site ( *http://www.regulations.gov* ) for additional instructions on providing comments via the Federal eRulemaking Portal. The comments will be available for public inspection on the Office's Web site at *http://www.uspto.gov,* and will also be available at the Office of the Commissioner for Trademarks, Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia. FOR FURTHER INFORMATION: Contact Mary Hannon, Office of the Commissioner for Trademarks, by telephone at
(571)272-9569. SUPPLEMENTARY INFORMATION: References below to “the Act,” “the Trademark Act,” or “the statute” refer to the Trademark Act of 1946, 15 U.S.C. 1051 *et seq.* , as amended. References to “TMEP” or *“Trademark Manual of Examining Procedure”* refer to the 5th edition, September 2007. Express Mail Procedure Section 2.198 of the Trademark Rules of Practice provides a procedure for obtaining a filing date as of the date that correspondence is deposited with the United States Postal Service (“USPS”) as “Express Mail.” Currently, § 2.198(a)(1) provides that the Express Mail procedure does not apply to the following documents for which an electronic form is available in TEAS: applications for registration of marks; amendments to allege use under section 1(c) of the Trademark Act; statements of use under section 1(d) of the Act; requests for extension of time to file a statement of use under section 1(d) of the Act; affidavits or declarations of use under section 8 of the Act; renewal applications under section 9 of the Act; and requests to change or correct addresses. If any of these documents are filed by Express Mail, they are given a filing date as of the date of receipt in the Office (Eastern time) rather than the date of deposit with the USPS. These exclusions have been in effect since June 24, 2002. *See* notice at *67 FR 36099 (May 23, 2002* ). The Express Mail procedure also does not apply to responses to notices of irregularity under § 7.14 and requests for transformation under § 7.31, pursuant to § 7.4(b)(2). The Office proposes to amend § 2.198(a)(1) to add exclusions for the following additional documents for which a form is available in TEAS: Preliminary amendments; responses to examining attorneys' Office actions; requests for reconsideration after final action; responses to suspension inquiries or letters of suspension; petitions to revive abandoned applications under 37 CFR 2.66; requests for express abandonment of applications; affidavits or declarations of incontestability under section 15 of the Act; requests for amendment of registrations under section 7(e) of the Act; requests for correction of applicants' mistakes under section 7(h) of the Act; Madrid-related correspondence filed under § 7.11, § 7.14, § 7.21, § 7.28 or § 7.31; appointments or revocations of attorney or domestic representative; and notices of withdrawal of attorney. The Office further proposes to amend § 7.4 to provide that international applications under § 7.11 and subsequent designations under § 7.21, when filed by mail, will be accorded a filing date as of the date of receipt in the Office (Eastern time) rather than the date of deposit as Express Mail. Certificate of Mailing or Transmission Procedure Under 37 CFR 2.197, a “certificate of mailing or transmission” procedure exists to avoid lateness due to mail delay. Correspondence is given a filing date as of the date of receipt in the Office, but is considered to be timely even if received after the due date, if the correspondence was:
(1)Deposited with the USPS as first class mail or transmitted to the Office by facsimile transmission on or before the due date; and
(2)accompanied by a certificate attesting to the date of deposit or transmission. Currently, this procedure may be used for all trademark correspondence except applications for registration of marks and correspondence related to the Madrid Protocol under §§ 7.11, 7.14, 7.21, 7.23, 7.24 and 7.31. In limited circumstances, certificates of transmission by electronic mail are permissible. *See Trademark Manual of Examining Procedure* (“TMEP”) sections 304.01 and 304.02 regarding the types of trademark correspondence that can be filed by e-mail. The Office proposes to amend § 2.197(a)(2) to provide that the certificate of mailing and certificate of transmission procedures do not apply to the following documents for which an electronic form is available in TEAS: Amendments to allege use; statements of use; requests for extension of time to file a statement of use; preliminary amendments; responses to examining attorneys' Office actions; requests for reconsideration after final action; responses to suspension inquiries or letters of suspension; petitions to revive abandoned applications under 37 CFR 2.66; requests for express abandonment of applications; affidavits or declarations of use under section 8 of the Act; renewal applications under section 9 of the Act; affidavits or declarations of incontestability under section 15 of the Act; requests for amendment of registrations under section 7(e) of the Act; requests for correction of applicants' mistakes under section 7(h) of the Act; appointments or revocations of attorney or domestic representative; notices of withdrawal of attorney; and requests to change or correct addresses. Benefits of Proposed Change The certificate of mailing, certificate of transmission, and Express Mail procedures were created to respond to public concern about the loss of filing dates due to mail delays or loss of documents within the Office. These procedures are no longer necessary because electronic filing provides a better alternative. Applicants, registrants, and their attorneys can ensure a “date certain” for a document by filing through TEAS, which is available 24 hours a day, 7 days a week. Under § 2.195(a)(2), correspondence filed via TEAS is considered to have been filed on the date that the Office receives a complete transmission of the correspondence, regardless of whether that date is a Saturday, Sunday, or a Federal holiday within the District of Columbia. Unlike Express Mail and certificates of mailing/transmission, TEAS assures filers that the Office actually received the document submitted. When a document is filed electronically, the Office receives it within seconds after filing, and TEAS almost immediately displays a “Success” page confirming receipt, which may be printed or copied and pasted into an electronic record for storage. This page provides the filer with evidence of filing should any question ever arise as to the filing date of the document. If the “Success” page does not appear within seconds, then the filing was not completed successfully. Thus, no doubt exists as to whether a document was transmitted successfully. TEAS also sends a separate e-mail acknowledgment of receipt that includes a summary of the filed information and general processing information. TEAS documents are extremely unlikely to be lost or misplaced within the Office. Electronic filing creates an automatic entry of receipt of the filing into the Office's automated system, which prevents improper abandonment or cancellation due to delays in matching papers with files. The Office has experienced very few situations in which parties claim that electronically filed documents have been lost. In fact, in almost all instances in which parties have claimed that electronically filed documents have been lost, the Office has later determined that although the party successfully validated the intended filing, the party never successfully completed the actual electronic transmission process and never got a “Success” page. When a document is filed electronically, the data provided by the applicant is transferred directly into the Office's databases, so very few, if any, data entry errors arise. This assures customers that their application/registration files are complete; and improves the quality, accuracy and completeness of the information available to the public in Office databases. Because electronic filing eliminates delays caused by mailing, manual data capture and paper processing, TEAS documents are processed more quickly and entered into the automated systems (and therefore made available to Office employees and members of the public who search Office records for conflicting marks) sooner than their paper counterparts. This increases efficiency, reduces pendency, and enables the Office to provide a higher level of customer service to all applicants and registrants. Electronic filing provides a level of consistency, accuracy, and predictability that a paper-based process cannot. In those rare situations when TEAS is unavailable due to technical problems, mechanisms are in place to obtain a filing date as of the date of the attempted filing. The filer may provide evidence that the filing was attempted through TEAS but TEAS was unavailable due to technical problems, such as a computer screen printout showing receipt of a “Fatal Error—Access Denied” error message, or a copy of an e-mail message from the TEAS Help Desk stating that the TEAS application forms were temporarily unavailable. *See* TMEP sections 1711, 1712.01 and 1712.02. Rule Making Requirements *Executive Order 12866:* This rule has been determined not to be significant for purposes of Executive Order 12866. *Administrative Procedure Act:* This rule merely involves rules of agency practice and procedure within the meaning of 5 U.S.C. 553(b)(A). Therefore, this rule may be adopted without prior notice and opportunity for public comment under 5 U.S.C. 553(b) and (c), or thirty-day advance publication under 5 U.S.C. 553(d). However, the Office has chosen to seek public comment before implementing the rule. *Regulatory Flexibility Act:* As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 (or any other law), neither a regulatory flexibility analysis nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) is required. See 5 U.S.C. 603. *Unfunded Mandates:* The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, and tribal governments or the private sector. *Executive Order 13132:* This rule does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999). *Paperwork Reduction Act:* This notice involves information collection requirements which are subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The collection of information in this notice have been reviewed and approved by the OMB under OMB control numbers: 0651-0009, 0651-0054, 0651-0055 and 0651-0056. The agency is not resubmitting an information collection package to OMB for its review and approval because the changes in this notice are limited to amending the rules of practice to support further implementation of the Office's Trademark Electronic Application System. Interested persons are requested to send comments regarding these information collections, including suggestions for reduction of this burden to:
(1)The Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Patent and Trademark Office; and
(2)Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451 (Attn: Mary Hannon). Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. List of Subjects 37 CFR Part 2 Administrative practice and procedure, Trademarks. 37 CFR Part 7 Administrative practice and procedure, Trademarks. For the reasons given in the preamble and under the authority contained in 15 U.S.C. 1123 and 35 U.S.C. 2, as amended, the Office proposes to amend parts 2 and 7 of title 37 as follows: PART 2—RULES OF PRACTICE IN TRADEMARK CASES 1. The authority citation for 37 CFR part 2 continues to read as follows: Authority: 15 U.S.C. 1123, 35 U.S.C. 2, unless otherwise noted. 2. Amend § 2.197 by revising paragraph (a)(2) to read as follows: § 2.197 Certificate of mailing or transmission.
(a)* * *
(2)The procedure described in paragraph (a)(1) of this section does not apply to:
(i)Applications for the registration of marks;
(ii)Amendments to allege use under section 1(c) of the Act;
(iii)Statements of use under section 1(d) of the Act;
(iv)Requests for extension of time to file a statement of use under section 1(d) of the Act;
(v)Preliminary amendments;
(vi)Responses to examining attorneys' Office actions;
(vii)Requests for reconsideration after final action;
(viii)Responses to suspension inquiries or letters of suspension;
(ix)Petitions to revive abandoned applications under § 2.66;
(x)Requests for express abandonment of applications;
(xi)Affidavits or declarations of use under section 8 of the Act;
(xii)Renewal applications under section 9 of the Act;
(xiii)Affidavits or declarations of incontestability under section 15 of the Act;
(xiv)Requests for amendment of registrations under section 7(e) of the Act;
(xv)Requests for correction of applicants' mistakes under section 7(h) of the Act;
(xvi)Madrid-related correspondence filed under § 7.11, § 7.14, § 7.21, § 7.23, § 7.24, § 7.28 or § 7.31;
(xvii)Appointments or revocations of attorney or domestic representative; (xviii) Notices of withdrawal of attorney; and
(xix)Requests to change or correct addresses. 3. Amend § 2.198 by revising paragraphs (a)(1)(v),
(vi)and (vii), and adding new paragraphs (a)(1)(viii) through (xix), to read as follows: § 2.198 Filing of correspondence by “Express Mail.” (a)(1) * * *
(v)Preliminary amendments;
(vi)Responses to examining attorneys' Office actions;
(vii)Requests for reconsideration after final action;
(viii)Responses to suspension inquiries or letters of suspension;
(ix)Petitions to revive abandoned applications under § 2.66;
(x)Requests for express abandonment of applications;
(xi)Affidavits or declarations of use under section 8 of the Act;
(xii)Renewal applications under section 9 of the Act;
(xiii)Affidavits or declarations of incontestability under section 15 of the Act;
(xiv)Requests for amendment of registrations under section 7(e) of the Act;
(xv)Requests for correction of applicants' mistakes under section 7(h) of the Act;
(xvi)Madrid-related correspondence filed under § 7.11, § 7.14 § 7.21, § 7.28 or § 7.31;
(xvii)Appointments or revocations of attorney or domestic representative; (xviii) Notices of withdrawal of attorney; and
(xix)Requests to change or correct addresses. PART 7—RULES OF PRACTICE IN FILINGS PURSUANT TO THE PROTOCOL RELATING TO THE MADRID AGREEMENT CONCERNING THE INTERNATIONAL REGISTRATION OF MARKS 4. The authority citation for 37 CFR Part 7 continues to read as follows: Authority: 15 U.S.C. 1123, 35 U.S.C. 2, unless otherwise noted. 5. Amend § 7.4 by revising paragraphs (b)(1) and
(2)to read as follows: § 7.4 Receipt of correspondence.
(b)* * *
(1)Requests to record changes in the International Register under § 7.23 and § 7.24, and petitions to the Director to review an action of the Office's Madrid Processing Unit, when filed by mail, will be accorded the date of receipt in the Office, unless they are sent by Express Mail pursuant to § 2.198 of this chapter, in which case they will be accorded the date of deposit with the United States Postal Service.
(2)International applications under § 7.11, responses to notices of irregularity under § 7.14, subsequent designations under § 7.21, requests to note replacement under § 7.28, and requests for transformation under § 7.31, when filed by mail, will be accorded the date of receipt in the Office. Dated: February 22, 2008. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E8-3929 Filed 2-28-08; 8:45 am] BILLING CODE 3510-16-P DEPARTMENT OF THE INTERIOR 43 CFR Part 11 RIN 1090-AA97 Natural Resource Damages for Hazardous Substances AGENCY: Department of the Interior. ACTION: Proposed rulemaking. SUMMARY: We are proposing to revise certain parts of the natural resource damage assessment regulations for hazardous substances. The regulations provide procedures that natural resource trustees may use to evaluate the need for, and means of restoring, replacing, or acquiring the equivalent of public natural resources that are injured or destroyed as a result of releases of hazardous substances. This notice seeks comment on the proposed revisions to the regulations in response to the biennial statutory review requirement, two court decisions, and the recommendations of the Department of the Interior's Natural Resource Damage Assessment and Restoration Federal Advisory Committee. DATES: We will accept comments through May 29, 2008. ADDRESSES: You may submit comments, identified by the number [insert RIN], by any of the following methods: —Federal rulemaking portal: *http://www.regulations.gov* . Follow the instruction for submitting comments. —Mail: Department of the Interior, Natural Resource Damage Assessment and Restoration Program, Mail Stop 3548, 1849 C Street, NW., Washington, DC 20240. —Hand delivery: Room 3548, 1849 C Street, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Frank DeLuise at
(202)208-4143. SUPPLEMENTARY INFORMATION: This preamble is organized as follows: I. What the Natural Resource Damage Regulations Are About II. Why We Are Proposing To Revise Parts of the Regulations III. Major Issues Addressed by the Proposed Revisions A. Further Emphasizing Restoration Over Economic Damages, as Recommended by the Natural Resource Damage Assessment and Restoration Federal Advisory Committee B. Complying With *Ohio* v. *Interior* and Responding to *Kennecott* v. *Interior* C. Technical Corrections To Provide Consistent Timing Guidelines for the Administrative Assessment Process Set Out in the Rule I. What These Natural Resource Damage Regulations Are About The regulations describe how to conduct a natural resource damage assessment for hazardous substance releases under the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601, 9607) (CERCLA) and the Federal Water Pollution Control Act (33 U.S.C. 1251, 1321) (Clean Water Act). CERCLA required the President to promulgate these regulations. 42 U.S.C. 9651(c). The President delegated this rulemaking responsibility to the Department of the Interior (DOI). E.O. 12316, as amended by E.O. 12580. The regulations appear at 43 CFR part 11. A natural resource damage assessment is an evaluation of the need for, and the means of securing, restoration of public natural resources following the release of hazardous substances or oil into the environment. The regulations we are proposing to revise only cover natural resource damage assessments for releases of hazardous substances under CERCLA and the Clean Water Act. There are also natural resource damage assessment regulations at 15 CFR part 990 that cover oil spills under the Oil Pollution Act, 33 U.S.C. 2701 (the OPA regulations). The current hazardous substance natural resource damage assessment and restoration regulations, this preamble, and the proposed revisions to the regulations use “restoration” as an umbrella term for all types of actions that the natural resource damage provisions of CERCLA and the Clean Water Act authorize to address injured natural resources, including restoration, rehabilitation, replacement, or acquisition of equivalent resources. Natural resource damage assessments are conducted by government officials designated to act as “trustees” to bring claims on behalf of the public for the restoration of injured natural resources. Trustees are designated by the President, state governors, or tribes. If trustees determine, through an assessment, that hazardous substance releases have injured natural resources, they may pursue claims for damages against potentially responsible parties. “Damages” include funds needed to plan and implement restoration, compensation for public losses pending restoration, reasonable assessment costs, and any interest accruing after funds are due. See 43 CFR 11.15. The regulations establish an administrative process for conducting assessments that includes technical criteria for determining whether releases have caused injury, and if so, what actions and funds are needed to implement restoration. The regulations are for the optional use of trustees. Trustees can use the regulations to structure damage assessment work, frame negotiations, and inform restoration planning. If litigation is necessary to resolve the claim, courts will give additional deference—referred to as a “rebuttable presumption” in CERCLA—to assessments performed by federal and state trustees in accord with the regulations. The regulations provide guidance on two different types of assessment procedures identified in CERCLA: “Type A” and “type B” procedures. Type A procedures are simplified procedures for small cases. The current type A procedures are computer programs, available in a limited range of cases, that model the fate of a released substance in order to project the injuries caused by the release and calculate damages. Type B procedures outline an assessment process and assessment methods that trustees utilize on a case by case basis. We are proposing to revise certain parts of the type B procedures (case by case assessment provisions) in the regulations. II. Why We Are Proposing To Revise the Regulations CERCLA provides that we review and revise the regulations as appropriate every two years. 42 U.S.C. 9651(c)(3). The regulations are due for such a review. To assist in this review, in May 2005, DOI convened a Natural Resource Damage Assessment and Restoration (NRDAR) Federal Advisory Committee (advisory committee) to provide recommendations regarding DOI's NRDAR activities, authorities and responsibilities. The advisory committee comprised 30 members, representing a diverse group of interested stakeholders—including state, tribal, and federal trustee agencies, industry groups and potentially responsible party representatives, scientists, economists, and national and local environmental and public interest organizations. A key recommendation of the advisory committee was that DOI should undertake, without delay, a targeted revision of the regulations to emphasize restoration over economic damages. This proposed revision implements that recommendation, and responds to two court decisions addressing the regulations: State of *Ohio* v. *U.S. Department of the Interior* , 880 F.2d 432 (D.C. Cir. 1989) ( *Ohio* v. *Interior* ); and *Kennecott Utah Copper Corp.* v. *U.S. Department of the Interior* , 88 F.3d 1191 (D.C. Cir. 1996) ( *Kennecott* v. *Interior* ). Finally, we are proposing a technical revision to resolve an inconsistency on the appropriate timing for the administrative process set out in the rule. We have considered:
(a)The NRDAR advisory committee report, which was released in May of 2007;
(b)Comments (provided during prior rulemakings, and more informally during public meetings, symposiums, and discussion on natural resource damage assessment and restoration) from members of the private sector, representatives of federal, state, and tribal trustees, public interest groups, and others who have experience with the existing regulations;
(c)The *Ohio* v. *Interior* opinion;
(d)The *Kennecott* v. *Interior* opinion; and
(e)The OPA regulations. III. Major Issues Addressed by the Proposed Revisions Our proposed revisions would largely leave the framework of the existing rule intact. We are not proposing substantive changes to legal standards for reliability of assessment data and methodologies. The NRDAR advisory committee made a number of recommendations to encourage faster, more efficient and more cost-effective resolution of claims. The committee endorsed a tiered approach to implementing its recommendations that would immediately address the option of emphasizing restoration over economic damages in the regulations, while leaving the implementation of a broader range of recommendations—including providing technical guidance documents and streamlining of the restoration planning process—to the future. The rest of this section discusses the major issues addressed by the proposed revisions. The following section references the OPA regulations. These references are solely for the purpose of providing context and background. We are soliciting comments only on the proposed revisions to the CERCLA regulations. For guidance on conducting natural resource damage assessments under OPA, see 15 CFR Part 990. A. Further Emphasizing Restoration Over Economic Damages Under the current regulations, trustees utilizing the Type B procedures must base their claim on the cost of implementing a publicly reviewed restoration plan designed to return injured resources to their baseline condition, which is defined as the condition that would have existed had the release not occurred (see 43 CFR 11.80-82). CERCLA and the Clean Water Act authorize trustees to recover damages not only for the cost of restoring injured or destroyed resources to their baseline condition, but also for public losses pending restoration to baseline. The regulations call these interim losses “compensable values” (see 43 CFR 11.83(c)). The regulations define compensable value as the amount of money required to compensate the public for the loss in “services” provided by the injured resources pending restoration (see 43 CFR 11.83(c)(1)). Services are defined in the current regulations as the physical and biological functions performed by the resources, including the human use of those functions. The current regulations provide that compensable value should be measured by the economic value of public losses arising from the resource injury until restoration can be achieved, which arguably could be read as excluding restoration-based approaches to determining compensable value. To comply with CERCLA and the Clean Water Act, trustees must spend any compensable value recoveries on restoration actions. Under the current regulations, however, trustees do not need to consider restoration actions to address interim losses until they have already determined and recovered damages. This can be inefficient and confusing. The NRDAR advisory committee recommended that DOI should amend its current regulation to explicitly authorize trustees to use the cost of restoration actions that address service losses to calculate all damages, including interim losses. Providing the option for a “restoration-based” approach to all damages better comports with CERCLA's overall restoration objectives. It also promotes an earlier focus on feasible restoration options, which can encourage settlements by providing opportunities for designing creative and cost-effective actions to address losses. We are proposing to revise 43 CFR 11.83(c) to provide trustees with the option of estimating compensable values for losses pending restoration utilizing the cost of implementing projects that restore those lost natural resource services. Methodologies that compare losses arising from resource injury to gains expected from restoration actions are frequently simpler and more transparent than methodologies used to measure the economic value of losses. Our proposed revisions include four examples of project-based assessment methodologies—conjoint analysis, habitat equivalency analysis, resource equivalency analysis, and random utility models—which have been used successfully to resolve claims under both the CERCLA and the OPA regulations. We are proposing to add a brief description of these restoration-based methodologies to the non-exclusive list of economic valuation methodologies in the current regulation. Our proposed revisions do not sanction or bar the use of any particular methodology, so long as it complies with the “acceptance criteria” for relevance that appear in the rule. The list of proposed methodologies for assessing compensable values remains non-exclusive, allowing for the introduction of new and innovative techniques that may arise. In 43 CFR 11.83(a), the current regulations provide that when choosing among any cost estimation or valuation methodology, trustees should seek to ensure that the methodologies selected are feasible and reliable for a particular incident or type of damage to be measured. To assist trustees in evaluating such feasibility and reliability, we are proposing to provide a list of factors that set out general principles of feasibility and reliability for all methodologies. This includes the cost reasonableness, cost effectiveness, and avoidance of double counting criteria in the current regulations, along with other factors—such as the ability to provide useful restoration information, peer review, and methodological standards—for trustees to consider when evaluating the reliability of all damage assessment methodologies. Each of the listed factors we are proposing may not be applicable in every case, but trustees continue to be required to document their consideration of relevant factors in the Report of Assessment. We solicit comment on providing the option for the use of restoration-based approaches and methodologies to resolve NRDAR claims. B. Complying With Ohio v. Interior and Responding to Kennecott v. Interior Several provisions of the current regulations were invalidated by the D.C. Circuit Court of Appeals in *Ohio* v. *Interior* and *Kennecott* v. *Interior* . Some invalidated provisions from the 1986 rule were carried over in the 1994 revisions responding to the *Ohio* v. *Interior* decision. Additionally, the *Kennecott* v. *Interior* decision in 1996 invalidated certain provisions from the 1994 revisions which have not yet been corrected to comply with the decision. We are proposing technical corrections to the CFR in accord with these decisions. The *Ohio* v. *Interior* decision invalidated the limitation on estimating option and existence value in 43 CFR 11.83(c)(1)(iii). Our revisions will therefore delete this provision from the CFR. The restatement of this limitation in 43 CFR 11.83(c)(2)(vii)(B) will also be deleted from the CFR. Estimating option and existence value through the use of contingent valuation methodologies remains controversial. We note, however, that our proposed revision's focus on compensating for public losses pending restoration with restoration actions rather than monetary damages for the economic value of the losses would provide options for comparing functional losses from resource injuries to functional gains expected from restoration actions, which would reduce the need for trustees to seek to recover the monetary value of passive economic losses such as option and existence value. The *Kennecott* v. *Interior* decision invalidated DOI's attempt to define the date of promulgation of the 1994 revisions to the rule. This was relevant because it affected the three-year statutory limitations for filing a claim at some CERCLA sites. In 43 CFR 11.91(e), DOI defined the date of promulgation as the later of the date when either the Type A or Type B rule was finalized, pursuant to the *Ohio* v. *Interior* decision. The Court of Appeals found this interpretation unreasonable and invalidated the provision, which we will delete from the CFR. Since both the Type A and Type B revisions finalized pursuant to the *Ohio* v. *Interior* decision were finalized more than three years ago, this deletion is merely a technical correction which has no material effect. The 1994 revisions to the NRDAR rule stated that the measure of natural resource damages under CERCLA was the cost of restoration of “the injured natural resources and the services those resources provide” (see 43 CFR 11.80(b)). In the *Kennecott* decision, the Court of Appeals invalidated this language because it was inconsistent with DOI's preamble explanation of the measure of damages, which endorsed the concept of quantifying resource injury and resulting public losses by utilizing a services metric. The court reasoned that creating an apparent dichotomy between restoration of resources and restoration of services implied an abandonment of the services approach that was unexplained. The court therefore invalidated the “resources and services” language and “reinstated” the services approach, pending further clarification. Under the current rule, natural resource damages include both the cost of restoring injured resources to their baseline level of services and, when appropriate, compensation for interim service losses pending restoration. Under the current rule, restoration to baseline focuses on the resource condition, while compensable value focuses on compensation for lost services pending the restoration of resources. “Resources and services” reflects the distinct emphases for different damage components, but it was not intended as a rejection of a services-based approach. As the proposed revisions make clear, the metric for evaluating natural resource conditions for baseline restoration is the baseline level of services, while the compensable value for losses pending restoration is either the value of the services lost pending restoration or the cost of projects that compensate for services lost pending restoration. The proposed revision to 43 CFR 11.80(b) clarifies that the measure of damages is the cost of restoring injured natural resources to their baseline level of services, and, at the discretion of the trustees, the compensable value of services lost pending restoration. This clear construct is carried over for conforming changes to 43 CFR 11.81(a)(1) and (2), 43 CFR 11.82(a), (b)(iii), and (c), and 43 CFR 11.83(a). C. Technical Correction To Provide Consistent Timing Guidelines The current regulations provide that a Restoration and Compensation Determination Plan
(RCDP)which evaluates and selects restoration alternatives may be developed after completion of the injury determination and quantification phases of the assessment (see 43 CFR 11.81(d)(1)). However, an earlier provision of the current regulations provides that the RCDP can be developed “at any time before” completion of the injury determination or quantification phases. (See 43 CFR 11.31(c)(4)). Since the evaluation and selection of restoration alternatives can benefit from more definitive injury determination and quantification data, we propose to resolve this inconsistency by correlating 43 CFR 11.31(c)(4) with 43 CFR 11.81(d)(1) to provide that the RCDP may be completed after the injury determination and quantification phases of the assessment. IV. How We Have Complied With Rulemaking Requirements *Regulatory Planning and Review under E.O. 12866* —The Office of Management and Budget has reviewed the proposed revisions. The revisions are a significant regulatory action under E.O. 12866 because the rule will raise novel legal or policy issues. The revisions clarify that trustees have the option of calculating total damages using the cost of restoration actions that compensate for losses, rather than requiring a two-part process where natural resource damages are calculated using the cost of restoration actions, and public losses pending restoration are calculated using the economic value of the loss. These revisions do not fall under other criteria in E.O. 12866: a. This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. The regulations we are revising apply only to natural resource trustees by providing technical and procedural guidance for the assessment of natural resource damages under CERCLA and the Clean Water Act. The revisions are not intended to change the balance of legal benefits and responsibilities among any parties or groups, large or small. It does not directly impose any additional cost. In fact, the proposed revisions should assist in reducing natural resource damage assessment transaction costs by allowing trustees to utilize simpler and more transparent methodologies to assess damages when appropriate. The proposed revisions do not sanction or bar the use of any particular methodology, so long as it meets the acceptance criteria for relevance and cost effectiveness that are set out in the rule. We also believe that in many cases an early focus on feasible restoration and appropriate restoration actions, rather than on the economic value of public losses, can result in less contention and litigation, and faster, more cost-effective restoration. Meanwhile, existing criteria in the rule for evaluating restoration alternatives—including cost effectiveness—remain intact (see 43 CFR 11.82(d)). The likely result will be the encouragement of settlements, less costly and more timely restoration, and reduced transaction costs. To the extent any are affected by the proposed revisions, it is anticipated that all parties will benefit by the increased focus on restoration in lieu of economic damages. b. The proposed revisions will not create inconsistencies with other agencies' action. The general approach to losses pending restoration set forth in this rule is consistent with the OPA regulations. Both allow for basing damages on the cost of restoration actions to address public losses associated with natural resource injuries. *Regulatory Flexibility Act* —We certify that this rule revision will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601) (see section on E.O. 12866 above for discussion of potential economic effects.) *Small Business Regulatory Enforcement Fairness Act* —This rule revision is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule revision:
(a)Does not have an annual effect on the economy of $100 million or more (see section on E.O. 12866 above for discussion of potential economic effects.)
(b)Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions (see section on E.O. 12866 above for discussion of potential economic effects.)
(c)Does not have significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises (see section on E.O. 12866 above for discussion of potential economic effects.) *Unfunded Mandates Reform Act* —This rule revision does not mandate any actions. The existing regulations do not require trustees to conduct assessment or pursue damage claims, and trustees who choose to conduct assessments and pursue damage claims are not required to do so in a manner described in the regulations. The proposed revisions do not change the optional nature of the existing regulations. The revisions themselves do not replace existing procedures; they merely clarify that trustees have the option of employing other procedures. Therefore, this rule revision will not produce a Federal mandate of $100 million or greater in any year. *Takings Analysis under E.O. 12630* —A takings implication assessment is not required by E.O. 12630 because no party can be compelled to pay damages for injury to natural resources until they have received “due process” through a legal action in federal court. This rule and the proposed revisions merely provide a framework for assessing injury and developing the claim. *Federalism Analysis under E.O. 12612* —E.O. 12612 requires federal agencies to consult with elected state officials before issuing proposed rules that have “federalism implications” and either impose unfunded mandates or preempt state law. A rule has federalism implications if it has “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.” This rule and the proposed revisions do not require state trustees to take any action; therefore it does not impose any unfunded mandates. The rule and the proposed revisions do not preempt state law. The rule and the proposed revisions have no significant effect on intergovernmental relations because they do not alter the rights and responsibilities of government entities. Therefore, a federalism summary impact statement is not required under section 6 of the Order. *Civil Justice Reform under E.O. 12988* —Our Office of the Solicitor has determined that the proposed revisions do not unduly burden the judicial system and meet the requirements of section 3(a) and 3(b)(2) of the Order. The proposed revisions are intended to provide the option for an early focus on restoration, utilization of simpler and more cost-effective assessment methodologies, and increased opportunities for cooperation among trustees and potentially responsible parties. This should minimize litigation. *Paperwork Reduction Act* —The proposed revisions do not pose “identical questions” to, or impose “identical reporting, record keeping, or disclosure requirements,” on trustees. Therefore, the proposed revisions do not include an “information collection” governed by the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* *National Environmental Policy Act* —We have analyzed the proposed revisions in accordance with the criteria of the National Environmental Policy Act, 43 U.S.C. 433 *et seq.* (NEPA). Restoration actions identified through the proposed revisions may sometimes involve major federal actions significantly affecting the quality of the human environment. In those cases, federal trustees will need to comply with NEPA. However, the proposed revisions do not require trustees to take restoration action. Further, if the trustees decide to pursue restoration, they are not required to follow the rule when selecting restoration actions. Finally, the rule and the proposed revisions do not determine the specific restoration actions that trustees can seek. Therefore, the rule and the proposed revisions do not significantly affect the quality of the human environment. Even if the rule revisions were considered to significantly affect the quality of the human environment, they would fall under DOI's categorical exclusion for regulations that are of a procedural nature or have environmental effects too broad or speculative for meaningful analysis and will be subject later to the NEPA process. Public Availability of Comments Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. List of Subjects in 34 CFR Part 11 Natural resources, Environmental protection. Dated: January 10, 2008. James E. Cason, Associate Deputy Secretary. For the reasons given in the preamble, we propose to amend part 11 of title 43 of the Code of Federal Regulations as follows: PART 11—NATURAL RESOURCE DAMAGES FOR HAZARDOUS SUBSTANCES 1. The authority citation for part 11 continues to read as follows: Authority: 42 U.S.C. 9651(c), as amended. 2. In § 11.31, revise paragraph (c)(4) to read as follows: § 11.31 What does the Assessment Plan include?
(c)* * *
(4)The Restoration and Compensation Determination Plan developed in accordance with the guidance in § 11.81 of this part. If existing data are not sufficient to develop the Restoration and Compensation Determination Plan as part of the Assessment Plan, the Restoration and Compensation Determination Plan may be developed later, after the completion of the Injury Determination or Quantification phases. If the Restoration and Compensation Determination Plan is published separately, the public review and comment will be conducted pursuant to § 11.81(d) of this part. 3. In § 11.38, revise paragraph (c)(2)(i) to read as follows: § 11.38 Assessment Plan—preliminary estimate of damages.
(c)* * *
(2)* * *
(i)The preliminary estimate of compensable value should represent the expected present value of the anticipated compensable value, expressed in constant dollars, accrued through the period for the restoration, rehabilitation, replacement, and/or acquisition of equivalent resources to baseline conditions, i.e., between the occurrence of the discharge or release and the completion of the restoration, rehabilitation, replacement, and/or acquisition of the equivalent of the injured resources to their baseline level of services. The estimate should use the same base year as the preliminary estimate of costs of restoration, rehabilitation, replacement, and/or acquisition of equivalent resources. The provisions detailed in §§ 11.80 through 11.84 of this part are the basis for the development of this estimate. 4. In § 11.80, revise paragraph
(b)to read as follows: § 11.80 Damage determination phase—general.
(b)*Purpose.* The purpose of the Damage Determination phase is to establish the amount of money to be sought in compensation for injuries to natural resources resulting from a discharge of oil or release of a hazardous substance. The measure of damages is the cost of restoration, rehabilitation, replacement, and/or acquisition of the equivalent of the injured natural resources to their baseline level of services. Damages may also include, at the discretion of the authorized official, the compensable value of all or a portion of the services lost to the public for the time period from the discharge or release until the attainment of the restoration, rehabilitation, replacement, and/or acquisition of equivalent of baseline. 5. In § 11.81, revise paragraph
(a)to read as follows: § 11.81 Damage determination phase—restoration and compensation determination plan.
(a)*Requirement.*
(1)The authorized official shall develop a Restoration and Compensation Determination Plan that will list a reasonable number of possible alternatives for restoration, rehabilitation, replacement, and/or acquisition of equivalent resources to their baseline level of services, and, where relevant, the compensable value; select one of the alternatives and the actions required to implement that alternative; give the rationale for selecting that alternative; and identify the methodologies that will be used to determine the costs of the selected alternative and, at the discretion of the authorized official, the compensable value of the services lost to the public associated with the selected alternative.
(2)The Restoration and Compensation Determination Plan shall be of sufficient detail to evaluate the possible alternatives for the purpose of selecting the appropriate alternative to use in determining the cost of restoration, rehabilitation, replacement, and/or acquisition of equivalent resources to their baseline level of services, and, where relevant, the compensable value. 6. In § 11.82, revise paragraphs (a), (b)(1)(iii), and (c)(1) to read as follows: § 11.82 Damage determination phase—alternatives for restoration, rehabilitation, replacement, and/or acquisition of equivalent resources.
(a)* Requirement.* The authorized official shall develop a reasonable number of possible alternatives for the restoration, rehabilitation, replacement, and/or acquisition of the equivalent of the injured natural resources to their baseline level of services. For each possible alternative developed, the authorized official will identify an action, or set of actions, to be taken singly or in combination by the trustee agency to achieve the restoration, rehabilitation, replacement, and/or acquisition of equivalent natural resources to their baseline level of services. The authorized official shall then select from among the possible alternatives the alternative that he determines to be the most appropriate based on the guidance provided in this section.
(b)* * *
(1)* * *
(iii)Possible alternatives are limited to those actions that restore, rehabilitate, replace, and/or acquire the equivalent of the injured resources to their baseline, that is, the condition without a discharge or release as determined in § 11.72 of this part. (c)(1) The possible alternatives considered by the authorized official that return the injured resources to their baseline level of services could range from: intensive action on the part of the authorized official to return the various resources and services provided by those resources to baseline conditions as quickly as possible; to natural recovery with minimal management actions. Possible alternatives within this range could reflect varying rates of recovery, combination of management actions, and needs for resource replacements or acquisitions. 7. In § 11.83, revise paragraphs (a)(1), (a)(3), and
(c)to read as follows: § 11.83 Damage determination phase—cost estimating and valuation methodologies.
(a)*General.*
(1)This section contains guidance and methodologies for determining: the costs of the selected alternative for restoration, rehabilitation, replacement, and/or acquisition of equivalent resources to their baseline level of services; and the compensable value of the services lost to the public through the completion of the restoration, rehabilitation, replacement, and/or acquisition of the equivalent of the injured resources to baseline.
(3)Only those methodologies that are feasible and reliable for a particular incident and type of damage to be measured shall be utilized. The authorized official should consider the following factors to evaluate feasibility and reliability of methodologies. Each factor, however, may not be applicable to every case. The authorized official shall document the consideration of relevant factors in the Report of Assessment:
(i)Is the methodology capable of providing information of use in determining the restoration cost or compensable value appropriate for a particular natural resource injury?;
(ii)Can the methodology be implemented at a reasonable cost, as that term is used in this part?;
(iii)Does the methodology avoid double counting or allow any double counting to be estimated and eliminated in the final damage calculation?;
(iv)Is the methodology cost-effective, as that term is used in this part?;
(v)Does the methodology address the particular natural resource injury and associated service loss in light of the nature, degree, and spatial and temporal extent of the injury?;
(vi)Has the methodology been subject to peer review, either through publication or otherwise?;
(vii)Does the methodology enjoy general or widespread acceptance by experts in the field?;
(viii)Is the methodology subject to standards governing its application?;
(ix)Are methodological inputs and assumptions supported by a clearly articulated rationale?;
(x)Are cutting edge methodologies tested or analyzed sufficiently so as to be reasonably reliable under the circumstances?
(c)*Compensable value.*
(1)Compensable value is the amount of money required to compensate the public for the loss in services provided by the injured resources between the time of the discharge or release and the time the resources are fully returned to their baseline conditions. The compensable value can include the economic value of lost services provided by the injured resources, including both public use and nonuse values such as existence and bequest values. Economic value can be measured by changes in consumer surplus, economic rent, and any fees or other payments collectable by a Federal or State agency or an Indian tribe for a private party's use of the natural resources; and any economic rent accruing to a private party because the Federal or State agency or Indian tribe does not charge a fee or price for the use of the resources. Alternatively, compensable value can be determined utilizing a restoration cost approach, which measures the cost of implementing a project or projects that restore, replace, or acquire the equivalent of natural resource services lost pending restoration to baseline.
(i)Use value is the economic value of the resources to the public attributable to the direct use of the services provided by the natural resources.
(ii)Nonuse value is the economic value the public derives from natural resources that is independent of any direct use of the services provided.
(iii)Restoration cost is the cost of a project or projects that restore, replace, or acquire the equivalent of natural resource services lost pending restoration to baseline.
(2)*Valuation methodologies.* The authorized official may choose among the valuation methodologies listed in this section to estimate appropriate compensation for lost services or may choose other methodologies provided that the methodology can satisfy the acceptance criterion in paragraph (c)(3) of this section. Nothing in this section precludes the use of a combination of valuation methodologies so long as the authorized official does not double count or uses techniques that allow any double counting to be estimated and eliminated in the final damage calculation. Type of methodology Description
(i)Market price The authorized official may determine the compensable value of the injured resources using the diminution in the market price of the injured resources or the lost services. May be used only if:
(A)The natural resources are traded in the market; and
(B)The authorized official determines that the market for the resources, or the services provided by the resources, is reasonably competitive.
(ii)Appraisal The measure of compensable value is the difference between the with- and without-injury appraisal value determined by the comparable sales approach as described in the Uniform Appraisal Standards. Must measure compensable value, to the extent possible, in accordance with the “Uniform Appraisal Standards for Federal Land Acquisition,” Interagency Land Acquisition Conference, Washington, DC, 1973 (incorporated by reference, see § 11.18).
(iii)Factor income (sometimes referred to as the “reverse value added” methodology) May be used only if the injured resources are inputs to a production process, which has as an output a product with a well-defined market price. May be used to determine:
(A)The economic rent associated with the use of resources in the production process; and
(B)The in-place value of the resources.
(iv)Travel cost May be used to determine a value for the use of a specific area. Uses an individual's incremental travel costs to an area to model the economic value of the services of that area. Compensable value of the area to the traveler is the difference between the value of the area with and without a discharge or release. Regional travel cost models may be used, if appropriate.
(v)Hedonic pricing May be used to determine the value of nonmarketed resources by an analysis of private market choices. The demand for nonmarketed natural resources is thereby estimated indirectly by an analysis of commodities that are traded in a market.
(vi)Unit value/benefits transfer Unit values are preassigned dollar values for various types of nonmarketed recreational or other experiences by the public. Where feasible, unit values in the region of the affected resources and unit values that closely resemble the recreational or other experience lost with the affected resources may be used.
(vii)Contingent valuation Includes all techniques that set up hypothetical markets to directly elicit an individual's economic valuation of a natural resource. Can determine:
(A)Use values and explicitly determine option and existence values; and
(B)Lost use values of injured natural resources.
(viii)Conjoint Analysis Like contingent valuation, conjoint analysis is a stated preference method. However, instead of seeking to value natural resource service losses in strictly economic terms, conjoint analysis compares natural resource service losses that arise from injury to natural resource service gains produced by restoration projects.
(ix)Habitat Equivalency Analysis May be used to compare the natural resource services produced by habitat or resource-based restoration actions to natural resource service losses.
(x)Resource Equivalency Analysis Similar to habitat equivalency analysis. This methodology may be used to compare the effects of restoration actions on specifically identified resources that are injured or destroyed.
(xi)Random Utility Model Can be used to:
(A)Compare restoration actions on the basis of equivalent resource services provided; and
(B)Calculate the monetary value of lost recreational services to the public.
(3)*Other valuation methodologies.* Other methodologies that measure compensable value in accordance with the public's willingness to pay for the lost service, or with the cost of a project that restores, replaces, or acquires services equivalent to natural resource services lost pending restoration to baseline in a cost-effective manner, are acceptable methodologies to determine compensable value under this part. § 11.91 [Amended] 8. In § 11.91, remove paragraph (e). [FR Doc. E8-3683 Filed 2-28-08; 8:45 am] BILLING CODE 4310-RG-P 73 41 Friday, February 29, 2008 Notices DEPARTMENT OF AGRICULTURE Forest Service Apache-Sitgreaves National Forests, Apache, Greenlee and Navajo Counties, AZ; Apache-Sitgreaves National Forests Public Motorized Travel Management Plan AGENCY: Forest Service, USDA. ACTION: Notice of intent to prepare an environmental impact statement; Correction. SUMMARY: On October 10, 2007, the **Federal Register** published a Notice of Intent
(NOI)to prepare an Environmental Impact Statement
(EIS)for the Motorized Travel Management Plan on the Apache-Sitgreaves National Forests (72 FR 57514-57517). On October 31, 2007, the **Federal Register** published a corrected NOI for that document (72 FR 61607). The Apache-Sitgreaves National Forests then conducted five public meetings in November 2007, to present the proposed action. After careful and deliberate consideration of public input received during those meetings, the Forests Supervisor decided to modify the proposed action. As a result, the Forest Service is hereby entirely revising both NOI documents, **Federal Register** of October 10, 2007 (72 FR 57514-57517) and **Federal Register** of October 31, 2007 (72 FR 61607), to read as follows. *Revision:* The Forest Service proposes to designate which routes (roads and trails) and areas on federal lands administered by the Forest Service within the Apache-Sitgreaves National Forests (Forests) are open to motorized travel. In doing so, the agency will comply with the requirements of the Forest Service 2005 Travel Management Rule. The Forest Service will produce a Motorized Vehicle Use Map
(MVUM)that reveals those routes and areas on the Forests that are open to motorized travel. The MVUM will be the primary tool used to determine compliance and enforcement with motor vehicle use designations on the ground. Existing routes, user-created routes and areas not designated as open on the MVUM will be legally closed to motorized travel except as allowed by permit or other authorization. Cross-country motorized travel will be prohibited except by special permit. The decisions on motorized travel do not include over-snow travel or existing winter-use recreation and will not change the management of or restrict non-motorized methods of travel on the Forests. DATES: Submit written or electronic issues and concerns related to the proposed action by March 14, 2008. The draft environmental impact statement is expected to be released in January 2009 and the final environmental impact statement is expected in April 2009. ADDRESSES: Send written issues and concerns to Travel Management, Apache-Sitgreaves National Forests, P.O. Box 640, Springerville, AZ 85938. Electronic comments may be sent to *asnf_travel_management@fs.fed.us* with “Travel Management” in the subject line. Electronic comments must be readable in Microsoft Word (.doc), rich text (.rtf), Portable Document Format (pdf), text (.txt) or hypertext markup language (.html). FOR FURTHER INFORMATION CONTACT: Jim Copeland, Team Leader at
(928)333-4301/(923) 339-4384. SUPPLEMENTARY INFORMATION: Purpose and Need for Action The purpose of this action is to improve management of motorized (36 CFR 212.1, *Motor Vehicle* ) vehicle travel on National Forest System
(NFS)lands within the Apache-Sitgreaves National Forests (Forests) in accordance with provisions identified in 36 CFR parts 212, 251, 261, and 295 *Travel Management; Designated Routes and Areas for Motor Vehicle Use; Final Rule* . Currently, wheeled motorized vehicle travel by the public is not prohibited off designated routes except by signed Forests Orders. The number of user created routes continues to grow each year, with many routes having environmental impacts and safety concerns that have not been addressed. Therefore, there is a need to manage the Forests' transportation system in a sustainable manner through designation of NFS roads, motorized NFS trails, and areas for motor vehicle use, and the prohibition of motorized cross-country travel (except by permit or special order). Proposed Action The proposed action is to designate roads, trails, and areas open to motorized travel on lands administered by the Apache-Sitgreaves National Forests (Forests). Where it is appropriate and necessary, the designations will also specify seasons of use, type of vehicle(s) permitted, and types of use for those roads, trails, and areas. In doing so, the Forests will comply with requirements of the Forest Service 2005 Travel Management Rule (36 CFR part 212). As a result of these travel management decisions, the Forests will produce a Motorized Vehicle Use Map
(MVUM)depicting those routes and areas on the Apache-Sitgreaves National Forests that are open to motorized travel. In order to implement the proposed action, it will be necessary to amend some existing direction and terminology in the 1987 *Apache-Sitgreaves National Forests Land and Resource Management Plan* , as amended. These changes to the Forests Plan direction would be enduring changes and would apply to this decision and all subsequent project decisions unless and until further modified. The Forests' public transportation system open to motorized travel under this proposal would be approximately 2,961 miles. Currently used closed roads (roads identified as closed in the Forests' database) and user created roads not identified as open under this proposal would no longer be open to public motorized use. Specifically, this proposed public motorized transportation system would allow for a balance between various recreational and commercial uses of the Forests. It would provide for various forms of reasonable motorized use on a designated system of routes in a responsible manner that addresses multiple resource concerns. The proposed public motorized transportation system is depicted in detail on five maps, one for each Ranger District, collectively referred to as the *Apache-Sitgreaves National Forests Public Motorized Travel Management Plan Modified Proposed Action Map* , is located on the Forests' Web Site: * http:// www.fs.fed.us/r3/asnf/projects/travel-management.shtml * . In addition, maps will be available for viewing at: Supervisor's Office, 30 South Chiricahua St., Springerville, AZ. Alpine Ranger District, Junction Hwy 180 & 191, Alpine, AZ. Black Mesa Ranger District, 2748 E. Hwy 260, Overgaard, AZ. Clifton Ranger District, 397240 AZ 75, Duncan, AZ. Springerville Ranger District, 165 S. Mountain Ave., Springerville, AZ. Lakeside Ranger District, 2022 W. White Mountain Blvd., Lakeside, AZ. Other existing routes not shown on this map would not be open to public motorized travel. New routes would not be created except by written decision of an authorized Forest Service official. Unauthorized new routes would not be approved for public travel. If this proposal is selected for implementation, the information on this map would become the Motor Vehicle Use Map
(MVUM)required by regulation and agency policy. Under this proposal most of the proposed public motorized transportation system routes would occur on existing National Forest System
(NFS)routes currently open to the public for motorized travel. This proposal also includes designation of some currently unauthorized user-created routes to connect existing NFS routes. Approximately 1,956 miles of NFS roads would be designated for mixed-use as “roads open to all vehicles.” NFS roads not considered for mixed-use would be designated as “roads open to highway legal vehicles only” (695 miles), or “routes open only to vehicles 50″ or less in width” (310 miles). This proposal would allow cross-country motorized big game retrieval (MBGR), up to 1 mile from a designated route, of legally harvested and properly tagged elk and mule deer during certain seasons, in certain Game Management Units, during certain times of the day. The intent of this segment of the proposal is to reduce spoilage and waste by providing reasonable access to downed animals that are difficult to move long distances without motorized assistance. This proposal would also allow Arizona Challenged Hunter Access/Mobility Permit (CHAMP) holders the ability for cross-country motorized game retrieval, up to 1 mile from a designated route, of legally harvested and properly tagged elk, mule deer, and black bear. Cross-country MBGR will be subject to other existing regulations intended to protect natural and/or heritage resources. This includes compliance with regulations addressing use of vehicles off roads (36 CFR 261.15), National Forest Wilderness (36 CFR 261.18), and National Forest Primitive Areas (36 CFR 261.21), as well as other applicable laws and regulations. No MBGR will be allowed in Wilderness or Primitive areas. Motorized cross-country retrieval of other game animals would not be allowed under this proposal because these animals are small enough to retrieve without motorized assistance. This proposal is consistent with 36 CFR 212.51(8)(b) and the recommendation from Arizona Game and Fish Department. Roadside parking within vehicle length from the shoulder of designated routes is proposed, unless otherwise posted on-the-ground and provided it is safe to do so and without causing damage to NFS resources or facilities. this would allow the public to access many traditionally used dispersed campsites adjacent to NFS roads or within a short walking distance of those roads. This proposal would allow dispersed motorized camping in designated dispersed campsites. Currently, the Forests have identified approximately 1,612 historically used dispersed camp sites. The Forests recognize that not all historically used day-use or dispersed camp sites have been identified and will continue to collaborate with the public to identify more sites. Motor vehicles would be allowed to travel the currently established route to designated areas for day-use parking or dispersed camping. This would allow for reasonable recreational use of NFS lands while reducing the potential for resource damage. Designated dispersed campsites would not be displayed on the MVUM. This proposal would allow dispersed motorized camping off designated routes, in certain areas, under certain conditions. Motorized dispersed camping would be allowed along designated corridor routes. Designated routes with designated corridor camping would be displayed on the proposed action maps and would be displayed on the MVUM. Motorized vehicles would be permitted to travel 300 feet or less from either side of the centerline of designated corridor routes, using the most direct route to and from the campsite and the adjacent designated route. Cross-country motorized travel within the designated corridors would not be allowed for purposes of searching for or locating a campsite or other general travel. Currently, the Forests have identified approximately 938 miles of designated corridors on the Black Mesa (702 miles), Lakeside (1 mile), Springerville (78 miles), and Clifton (157 miles) Ranger Districts. The Alpine Ranger District proposes to meet the intent of the TMR and the needs of the recreating public by utilizing other strategies such as roadside parking and designated dispersed day-use and camp sites. This proposal would allow cross-country motorized travel in eight designated Areas on the Black Mesa (6 areas) and Lakeside (2 areas) Ranger Districts that total approximately 5,989 acres. The intent is to provide expanded motorized travel opportunities in areas with multiple campsites, but without a defined transportation system. Designated cross-country travel Areas would be displayed on the MVUM and clearly marked on the ground. Possible Alternatives The initial proposed action presented to the public during November, 2007, may be included and analyzed in the EIS. In addition, the EIS will fully describe and evaluate the no action alternative and a full range of alternatives identified during scoping. Responsible Official The Responsible Official is the Forests Supervisor, Apache-Sitgreaves National Forests, P.O. Box 640, Springerville, AZ 85938. Nature of Decision To Be Made Based on the purpose and need for the proposed action, The Forests Supervisor will evaluate the proposed action and other alternatives in order to decide whether to adopt and implement the proposed action, an alternative to the proposed action, or take no action to make changes to the existing Apache-Sitgreaves National Forests transportation system. Once the decision is made, the Apache-Sitgreaves National Forests will publish a Motor Vehicle Use Map
(MVUM)identifying the roads, trails, and areas that are designed for motor vehicle use. The MVUM shall specify the classes of vehicles and, if appropriate, the times of year for which use is designated. Federal land managers are directed (Executive Order 11644, 36 CFR 212, and 43 CFR 8342.1) to provide for public use of routes designated as open, to ensure that the use of motorized vehicles and off-road vehicles will be controlled and directed so as to protect the resources of those lands under their authority, to promote the safety of users, and to minimize conflicts among various users of federal lands. Public Involvement The Apache-Sitgreaves National Forests hosted and participated in approximately 26 public meetings and workshops, relating to travel management and the Travel Analysis Process (TAP), during 2005 to 2007, across the Forests and local communities. Local citizens, State, county, local, and tribal governments and other Federal Agencies were invited to collaborate with the Forests on routes they wanted to remain open and/or closed or those routes that may be in conflict with other desired conditions. This preliminary, pre-NEPA public input was invaluable in helping the Forests develop the initial proposed action. The Forests then hosted five public meetings to present to the public the initial proposed action; which was developed considering access to private lands within NFS lands boundaries, current and predicted future funding, and access to the Forests for public motorized and non-motorized recreation. After careful and deliberate consideration of public input received during those meetings, the Forests Supervisor decided to modify the initial proposed action. Scoping Process Public participation will be especially important at several points during the analysis. The Forests will be seeking information, comments, and assistance from Federal, State, and other local agencies and other individuals or organizations that may be interested in or affected by the modified proposed action. The Forests will conduct open-house meetings to inform the public and interested parties on this modified proposal. Comments on this proposed action will be taken only in written format during the meetings. The meetings are scheduled at the following locations, dates and times: Show Low, AZ—March 6, 2008 (Thursday), from 3 p.m. to 7 p.m. and March 8, 2008 (Saturday), from 9 a.m. to 1 p.m., Show Low Public Library, 180 N. 9th Street. Springerville, AZ—March 6, 2008 (Thursday), from 4 p.m. to 7 p.m. and March 8, 2008 (Saturday), from 9 a.m. to 1 p.m., Forest Service Supervisor's Office Conference Room, 30 South Chiricahua Drive. Clifton, AZ—March 6, 2008 (Thursday), from 3 p.m. to 7 p.m., Clifton Community Center, Clifton Train Depot, 100 North Coronado Blvd. (U.S. Highway 191). Safford, AZ—March 8, 2008 (Saturday), from 9 a.m. to 1 p.m., Bottom Floor Assembly Room, Graham County General Services Building, 921 Thatcher Blvd. Heber, AZ—March 6, 2008 (Thursday), from 4 p.m. to 7 p.m. and March 8, 2008 (Saturday), from 9 a.m. to 1 p.m., Mogollon High School gymnasium, 3450 Mustang Ave. Alpine, AZ—March 6, 2008 (Thursday), from 3 p.m. to 7 p.m. and March 8, 2008 (Saturday), from 9 a.m. to 1 p.m., Alpine Community Center, 42627 U.S. Highway 180. Based on comments received as a result of this notice and after the Forests have conducted public open-house meetings and afforded the public sufficient time to respond to the modified proposed action, the Forests will use the public scoping comments and resource related input from the interdisciplinary team and other agency resource specialists to develop a set of significant issues to carry forward into the environmental analysis process. The draft environmental impact statement
(EIS)is expected to be filed with the Environmental Protection Agency
(EPA)and available for public review in January, 2009. EPA will publish a notice of availability of the draft EIS in the **Federal Register** . The comment period on the draft EIS will extend 45 days from the date the EPA notice appears in the **Federal Register** . At that time, the draft EIS will be posted on the Forests Web Site and copies will be distributed to interested and affected agencies, organizations, and members of the public for their review and comment. It is very important that those interested in the management of the Apache-Sitgreaves National Forests participate at that time. Those who provide comments during the official 45-day comment period are eligible to appeal the decision under 36 CFR part 215. Interest expressed or comments provided on this project prior to or after the close of the official comment period will not constitute standing for appeal purposes. Comments must meet the requirements of 36 CFR 215.6. The final EIS is scheduled to be completed in April, 2009. In the final EIS, the Forests are required to respond to substantive comments received during the draft EIS comment period that pertain to the environmental consequences discussed in the draft EIS and applicable laws, regulations, and policies considered in making the decision. Preliminary Issues The Forests have received some indications of potential issues from the initial public involvement process. Those potential issues include:
(1)Resource damage caused by inappropriate types of vehicle use, (e.g. motorized vehicles in fragile or steep terrain); proliferation of routes (e.g. parallel trails or roads, continued traffic on closed roads and travel off designated routes); and continued use during seasonal restrictions (e.g. routes closed to protect resources during wet or muddy seasons).
(2)Disturbing or harming wildlife by using routes in important or critical wildlife habitat areas, too many roads in wildlife habitat areas, and disturbances to wildlife during critical lifecycle periods.
(3)Concerns about recreational opportunities, including loss of access to NFS lands for recreational opportunities if cross-country and existing routes are closed to motorized travel; loss of primitive or semi-primitive non-motorized recreation opportunities if more routes or areas are opened to motorized travel; and how to appropriately and reasonably accommodate the rapidly growing number of motorized users desiring to use federal lands for recreational riding of OHVs.
(4)Concerns on how the system might be designed to facilitate effective enforcement.
(5)Safety concerns on routes where multiple vehicle types (e.g. full-sized trucks and cars, ATVs, motorcycles) are allowed at the same time.
(6)Impacts to multiple use management of the Forests if routes are reduced.
(7)Economic impacts to local and surrounding communities. The Forests recognize that this list of issues is not complete and will be further defined and refined as scoping continues. The Forests intend to develop a comprehensive list of significant issues before the full range of alternatives is developed and the environmental analysis is begun. Comment Requested This revised notice of intent continues the scoping process which guides the development of the environmental impact statement for the Apache-Sitgreaves National Forests Public Wheeled Motorized Travel Management Plan. *Early Notice of Importance of Public Participation in Subsequent Environmental Review:* A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the **Federal Register** . The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. *Vermont Yankee Nuclear Power Corp.* v. *NRDC,* 435 U.S. 519, 553 (1978). Also, environmental objections that could be raised at the draft environmental impact statement stage but that are not raised until after completion of the final environmental impact statement may be waived or dismissed by the courts. *City of Angoon* v. *Hodel,* 803 F.2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc.* v. *Harris,* 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the draft EIS comment period so that substantive comments and objections are made available to the Forests at a time when it can meaningfully consider them and respond to them in the final environmental impact statement. To assist the Forests in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection. (Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21) Dated: February 20, 2008. Deryl D. Jevons, Acting Forests Supervisor, Apache-Sitgreaves National Forests. [FR Doc. 08-882 Filed 2-28-08; 8:45 am]
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register
U.S. Code
- Federal Aviation Administration§ 106
- Purposes§ 3501
- Banker receiving unauthorized deposit of public money§ 644
- Rule making§ 553
- Federal agency responsibilities§ 3506
- Definitions§ 601
- Definitions§ 551
- Initial regulatory flexibility analysis§ 603
- Declaration of policy§ 631
- SHORT TITLE.§ 801
- Regulations§ 1135
- Definitions§ 1002
- Theft or embezzlement from employee benefit plan§ 664
- Continuation coverage§ 1162
- Application for registration; verification§ 1051
- Statements to accompany significant regulatory actions§ 1532
- Rules and regulations for conduct of proceedings in Patent and Trademark Office§ 1123
- Powers and duties§ 2
- Definitions§ 9601
- Congressional declaration of goals and policy§ 1251
- Reports and studies§ 9651
- Definitions§ 2701
- EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.§ 804
- Character and capital qualification of entrymen§ 433
CFR
- May I address the unsafe condition in a way other than that set out in the airworthiness directive?§ 39.19
- Definition of "plan assets"---participant contributions.§ 2510.3-102
- Limited exemption for certain small welfare plans.§ 2520.104-20
- How may an agency use size standards for its programs that are different than those established by SBA?§ 121.903
- What size standards has SBA identified by North American Industry Classification System codes?§ 121.201
- Revival of applications abandoned in full or in part due to unintentional delay.§ 2.66
- Certificate of mailing.§ 2.197
- Definitions.§ 212.1
- Use of vehicles off roads.§ 261.15
- National Forest Wilderness.§ 261.18
- National Forest primitive areas.§ 261.21
- Designation of roads, trails, and areas.§ 212.51
statutes-at-large
49 references not yet in our index
- 7 USC 601-674
- 5 USC 601-612
- 7 CFR 900
- 7 CFR 1.27(b)
- 7 CFR 1005.85
- 7 CFR 1000.85
- 7 CFR 1006.85
- 7 CFR 1007.85
- 7 CFR 1005
- 10 CFR 216
- 48 CFR 911
- 48 CFR 952
- 14 CFR 39
- 29 CFR 2510
- Pub. L. 104-4
- Pub. L. 93-406
- 88 Stat. 894
- 3 CFR 1978
- Pub. L. 105-72
- 37 CFR 2
- 37 CFR 7
- 43 CFR 11
- 15 CFR 990
- 43 CFR 11.15
- 880 F.2d 432
- 88 F.3d 1191
- 43 CFR 11.80-82
- 43 CFR 11.83(c)
- 43 CFR 11.83(c)(1)
- 43 CFR 11.83(a)
- 43 CFR 11.83(c)(1)(iii)
- 43 CFR 11.83(c)(2)(vii)(B)
- 43 CFR 11.91(e)
- 43 CFR 11.80(b)
- 43 CFR 11.81(a)(1)
- 43 CFR 11.82(a)
- 43 CFR 11.81(d)(1)
- 43 CFR 11.31(c)(4)
- 43 CFR 11.82(d)
- 34 CFR 11
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Proposed rule, Partial recommended decision
F. App'x880 F.2d 432
F. App'x88 F.3d 1191
SCOTUS435 U.S. 519
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