Unknown. Final rule

32,546 words·~148 min read·/register/2008/05/01/08-1203

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

--- schema: federal-register doc_type: fedreg source_file: FR-2008-05-01.xml --- 73 85 Thursday, May 1, 2008 Contents Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Food Safety and Inspection Service See Rural Utilities Service Alcohol Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24089 E8-9615 Animal Animal and Plant Health Inspection Service NOTICES Decision to Issue Permits for the Importation of Blueberries from Guatemala into the Continental United States, 24038-24039 E8-9579 Bonneville Bonneville Power Administration NOTICES 2012 Tiered Rate Methodology Proceeding, 24059-24062 E8-9572 Centers Centers for Medicare & Medicaid Services PROPOSED RULES Medicare Program:

Proposed Hospice Wage Index for Fiscal Year 2009, 24000-24035 08-1198 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24071-24072 E8-9292 Civil Civil Rights Commission NOTICES Meetings; Sunshine Act, 24040-24041 08-1207 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration Consumer Consumer Product Safety Commission NOTICES Provisional Acceptance of a Settlement Agreement and Order:

Kohl's Department Stores, Inc., 24050-24052 E8-9274 Defense Defense Department See Navy Department RULES User Fees, 23953-23957 E8-9377 NOTICES Revised Non-Foreign Overseas Per Diem Rates, 24052-24058 E8-9395 Education Education Department NOTICES Technical Assistance Workshop for Fiscal Year 2008 (FY), 24058-24059 E8-9594 Energy Energy Department See Bonneville Power Administration See Federal Energy Regulatory Commission EPA Environmental Protection Agency RULES Approval and Promulgation of Implementation Plans:

Alabama; Prevention of Significant Deterioration and Nonattainment New Source Review, 23957-23959 E8-9481 Extension of Deadline for Action on Section 126 Petition From Warrick County, IN, and the Town of Newburgh, IN, 23959-23961 E8-9485 PROPOSED RULES Approval and Promulgation of Air Quality Implementation Plans: Pennsylvania; Warren County Area, 23998-24000 E8-9613 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24067-24069 E8-9609 E8-9612 Charter Renewal:

Environmental Financial Advisory Board, 24069 E8-9610 Meetings: Workshop on Financial Assurance; Environmental Financial Advisory Board, 24069-24070 E8-9607 Executive Executive Office of the President See Presidential Documents FAA Federal Aviation Administration RULES Airworthiness Directives: Construcciones Aeronauticas, S.A., Model CN 235, CN 235 100, CN 235 200, CN-235 300, and C 295 Airplanes, 23939-23941 E8-9569 Przedsiebiorstwo Doswiadczalno-Produkcyjne Szybownictwa “PZL-Bielsko” Model SZD-50-3 “Puchacz” Gliders, 23942-23944 E8-9578 IFR Altitudes;

Miscellaneous Amendments, 23944-23946 E8-9602 PROPOSED RULES Airworthiness Directives: Bombardier Model DHC 8 102, DHC-8-103, DHC 8 106, etc., 23995-23997 E8-9575 Bombardier Model DHC 8 400 Series Airplanes, 23990-23992 E8-9577 Hawker Beechcraft Corporation Model 390 Airplanes, 23988-23990 E8-9566 Pilatus Aircraft Ltd. PC-6 Series Airplanes, 23993-23994 E8-9589 NOTICES Meetings: Sixth Meeting, Special Committee 213 Enhanced Flight Vision Systems/Synthetic Vision System, 24113-24114 E8-9534 Receipt of Noise Compatibility Program and Request for Review, 24114-24115 E8-9532 FBI Federal Bureau of Investigation NOTICES Meetings:

CJIS Advisory Policy Board, 24090 E8-9547 FCC Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24070 E8-9604 Federal Emergency Federal Emergency Management Agency PROPOSED RULES Proposed Flood Elevation Determinations; Correction, 24036-24037 E8-9271 NOTICES Emergency and Related Determinations: Ohio, 24079 E8-9531 Major Disaster Declaration: Arkansas, 24079-24080 E8-9533 Missouri, 24080 E8-9530 Federal Energy Federal Energy Regulatory Commission RULES Annual Update of Filing Fees, 23946-23947 E8-9548 NOTICES Combined Notice of Filings, 24062-24067 E8-9475 E8-9542 E8-9543 Federal Procurement Federal Procurement Policy Office RULES Cost Accounting Standards Board:

Accounting for the Costs of Employee Stock Ownership Plans (ESOPs) Sponsored by Government Contractors, 23961-23966 E8-9376 Fish Fish and Wildlife Service RULES Endangered and threatened wildlife and plants: Listing the potential Sonoran Desert Bald Eagle distinct population segment as threatened under the Endangered Species Act, 23966-23970 08-1203 Food Food and Drug Administration RULES Food Labeling: Health Claims; Soluble Fiber from Certain Foods and Risk of Coronary Heart Disease, 23947-23953 E8-9590 NOTICES Determination of Regulatory Review Period for Purposes of Patent Extension:

ARTEFILL, 24072-24073 E8-9592 AZILECT, 24073-24074 E8-9591 Meetings: Anesthesiology and Respiratory Therapy Devices Panel of the Medical Devices Advisory Committee, 24074-24075 E8-9537 Dermatologic and Ophthalmic Drugs Advisory Committee, 24075-24076 E8-9549 Food Food Safety and Inspection Service NOTICES Exemption for Retail Store Operations, 24039-24040 E8-9585 Health Health and Human Services Department See Centers for Medicare & Medicaid Services See Children and Families Administration See Food and Drug Administration See Health Resources and Services Administration See National Institutes of Health NOTICES Final Effect of Designation of a Class of Employees for Addition to the Special Exposure Cohort, 24070-24071 E8-9544 E8-9545 E8-9546 Health Health Resources and Services Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 24076 E8-9517 Homeland Homeland Security Department See Federal Emergency Management Agency NOTICES Meetings: Public Workshop; Privacy Compliance Fundamentals - PTAs, PIAs, and SORNs, 24078-24079 E8-9519 Indian Indian Affairs Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24080-24082 E8-9528 E8-9529 Grant Program to Build Tribal Energy Development Capacity, 24082-24085 E8-9512 Industry Industry and Security Bureau NOTICES Meetings:

Materials Technical Advisory Committee, 24041 E8-9587 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau See Surface Mining Reclamation and Enforcement Office International International Trade Administration NOTICES Consolidated Decision on Applications: Duty-Free Entry of Scientific Instruments, 24041 E8-9445 Decision on Application for Duty-Free Entry of Electron Microscope, 24041-24042 E8-9447 Preliminary Results of the 12th New Shipper Reviews:

Fresh Garlic from the People's Republic of China, 24042-24048 E8-9597 Justice Justice Department See Alcohol, Tobacco, Firearms, and Explosives Bureau See Federal Bureau of Investigation NOTICES Establishment; Violence Against Women in Indian Country Task Force, 24088-24089 E8-9576 Labor Labor Department NOTICES Enhancing Skills of Colombian Trade Unionists Project, 24090 E8-9470 Land Land Management Bureau NOTICES Availability of Record of Decision: Alturas Resource Management Plan, 24085-24086 E8-9520 Eagle Lake Resource Management Plan, CA, 24086 E8-9521 Surprise Resource Management Plan, 24086-24087 E8-9513 Closure of BLM Public Lands:

Clear Creek Management Area, 24087-24088 E8-9681 Coal Exploration License, WY, 24088 E8-9195 Management Management and Budget Office See Federal Procurement Policy Office Millennium Millennium Challenge Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24090-24091 E8-9536 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24091-24092 E8-9349 E8-9509 Meetings:

NASA Advisory Council; Science Committee; Planetary Protection Subcommittee, 24092 E8-9516 National Credit National Credit Union Administration PROPOSED RULES Credit Union Service Organizations, 23982-23988 E8-9457 NIH National Institutes of Health NOTICES Government-Owned Inventions; Availability for Licensing, 24076-24078 E8-9535 Meetings: National Institute of Dental & Craniofacial Research, Closed, 24078 E8-9404 NOAA National Oceanic and Atmospheric Administration RULES Fisheries Off West Coast States and in the Western Pacific;

West Coast Salmon Fisheries; 2008 Management Measures and a Temporary Rule, 23971-23981 E8-9687 Taking of Marine Mammals Incidental to Commercial Fishing Operations: Atlantic Large Whale Take Reduction Plan Regulations, 23970-23971 08-1202 NOTICES Meetings: Mid-Atlantic Fishery Management Council, 24048 E8-9600 New England Fishery Management Council, E8-9598 24048-24049 E8-9599 National Weather Service Support for Special Event, 24049 E8-9614 Revision to the Remote Community Alert Systems Program, 24049-24050 E8-9616 national National Prison Rape Elimination Commission NOTICES Availability for Public Comment on NPREC Draft Standards, 24093 E8-9596 Navy Navy Department NOTICES Intent to Grant Exclusive Patent License;

Correction: SPADAC, Inc., 24058 E8-9565 Nuclear Nuclear Regulatory Commission NOTICES Availability of Draft Supplement 35 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants: PPL Susquehanna, LLC, 24093-24094 E8-9593 Meetings; Sunshine Act, 24094 08-1204 Proposed Generic Communication: Fatigue Analysis of Nuclear Power Plant Components, 24094-24096 E8-9451 Withdrawal of Application for Amendment to Facility Operating License: Entergy Nuclear Operations, Inc., 24096 E8-9586 Postal Postal Regulatory Commission NOTICES Meetings;

Sunshine Act, 24096 08-1205 Postal Postal Service NOTICES Meetings; Sunshine Act, 24096-24097 E8-9497 Presidential Presidential Documents PROCLAMATIONS *Special observances:* Asian/Pacific American Heritage Month (Proc. 8247), 24131-24134 08-1208 Jewish American Heritage Month (Proc. 8248), 24135-24136 08-1209 National Physical Fitness and Sports Month (Proc. 8249), 24137-24138 08-1210 RUS Rural Utilities Service NOTICES Environmental Assessment: Georgia Transmission Corp., 24040 E8-9580 SEC Securities and Exchange Commission NOTICES Applications for Deregistration, 24097-24098 E8-9538 Self-Regulatory Organizations;

Proposed Rule Changes: American Stock Exchange LLC, 24098-24100 E8-9523 Philadelphia Stock Exchange, Inc., 24100-24101 E8-9539 SBA Small Business Administration NOTICES Small Business Size Standards: Waiver of the Nonmanufacturer Rule, E8-9551 24101-24102 E8-9552 Small Business Size Standards; Waiver of the Nonmanufacturer Rule, 24102 E8-9550 Social Social Security Administration NOTICES Establishment of the Future Systems Technology Advisory Panel, 24102-24103 E8-9574 State State Department NOTICES Bureau of Educational and Cultural Affairs

(ECA)Request for Grant Proposals: U.S.-Poland Parliamentary Youth Exchange Leadership Program, 24103-24107 E8-9584 Bureau of Educational and Cultural Affairs Request for Grant Proposals: Greek Teacher Professional Development Project, 24107-24113 E8-9603 Culturally Significant Objects Imported for Exhibition Determinations: Grecian Taste and Roman Spirit; The Society of Dilettanti, 24113 E8-9601 The Dead Sea Scrolls, 24113 E8-9595 “Thomas Hope; Regency Designer”, 24113 E8-9583 Surface Surface Mining Reclamation and Enforcement Office PROPOSED RULES Remining Incentives, 24120-24129 E8-9564 Surface Surface Transportation Board NOTICES Acquisition and Operation Exemption: Line Owned by Milwaukee Industrial Trade Center, LLC, d/b/a Milwaukee Terminal Railway, 24115 E8-9568 Transportation Transportation Department See Federal Aviation Administration See Surface Transportation Board Treasury Treasury Department See United States Mint U.S. Mint United States Mint NOTICES Notification of 2008 American Eagle Platinum Proof Coin Pricing, 24115 E8-9429 Veterans Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-9553 24116-24117 E8-9555 Separate Parts In This Issue Part II Interior Department, Surface Mining Reclamation and Enforcement Office, 24120-24129 E8-9564 Part III Executive Office of the President, Presidential Documents, 24131-24138 08-1208 08-1209 08-1210 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 73 85 Thursday, May 1, 2008 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0048; Directorate Identifier 2007-NM-181-AD; Amendment 39-15503; AD 2008-09-22] RIN 2120-AA64 Airworthiness Directives; Construcciones Aeronauticas, S.A. (CASA), Model CN-235, CN-235-100, CN-235-200, CN-235-300, and C-295 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive

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

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, * * * Special Federal Aviation Regulation 88 (SFAR88) * * * required a safety review of the aircraft Fuel Tank System * * *. Fuel Airworthiness Limitations are items arising from a systems safety analysis that have been shown to have failure mode(s) associated with an ‘unsafe condition' * * *. These are identified in Failure Conditions for which an unacceptable probability of ignition risk could exist if specific tasks and/or practices are not performed in accordance with the manufacturers' requirements. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective June 5, 2008. ADDRESSES: You may examine the AD docket on the Internet at *http://www.regulations.gov* or in person at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC. FOR FURTHER INFORMATION CONTACT: Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1112; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking

(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on October 17, 2007 (72 FR 58770). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, the FAA published Special Federal Aviation Regulation 88 (SFAR 88) in June 2001. SFAR 88 required a safety review of the aircraft Fuel Tank System to determine that the design meets the requirements of FAR (Federal Aviation Regulation) § 25.901 and § 25.981(a) and (b). A similar regulation has been recommended by the JAA (Joint Aviation Authorities) to the European National Aviation Authorities in JAA letter 04/00/02/07/03-L024 of 3 February 2003. The review was requested to be mandated by NAA's (National Aviation Authorities) using JAR (Joint Aviation Regulation) § 25.901(c), § 25.1309. In August 2005 EASA published a policy statement on the process for developing instructions for maintenance and inspection of Fuel Tank System ignition source prevention (EASA D 2005/CPRO, *www.easa.eu.int/home/cert_policy_statements_en.html* ) that also included the EASA expectations with regard to compliance times of the corrective actions on the unsafe and the not unsafe part of the harmonised design review results. On a global scale the TC (type certificate) holders committed themselves to the EASA published compliance dates (see EASA policy statement). The EASA policy statement has been revised in March 2006: the date of 31-12-2005 for the unsafe related actions was set at 01-07-2006. Fuel Airworthiness Limitations are items arising from a systems safety analysis that have been shown to have failure mode(s) associated with an ‘unsafe condition' as defined in FAA's memo 2003-112-15 ‘SFAR 88—Mandatory Action Decision Criteria'. These are identified in Failure Conditions for which an unacceptable probability of ignition risk could exist if specific tasks and/or practices are not performed in accordance with the manufacturers' requirements. This EASA Airworthiness Directive mandates the Fuel System Airworthiness Limitations (comprising maintenance/inspection tasks and Critical Design Configuration Control Limitations (CDCCL)) for the type of aircraft, that resulted from the design reviews and the JAA recommendation and EASA policy statement mentioned above. The corrective action is revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to include CDCCL data. You may obtain further information by examining the MCAI in the AD docket. Comments We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public. Explanation of Changes to the AD EASA Airworthiness Directive 2007-0007, dated January 9, 2007, specifies to incorporate into the aircraft maintenance program the fuel airworthiness limitation

(FAL)maintenance and inspection tasks defined in EADS CASA CN-235/C-295 Technical Document DT-0-C00-05001, Issue C, dated October 2006. We cited both these documents in the NPRM and specified the FAL tasks in paragraph (f)(1) of the NPRM. However, further examination of the EADS CASA Technical Document has shown that it does not contain FAL maintenance and inspection tasks. Therefore, we have removed paragraph (f)(1) of the NPRM and re-identified the remaining paragraphs in this final rule. We have also removed Note 1 of the NPRM, which gave instructions regarding maintenance documents and new inspections. That note is no longer relevant in this final rule. We have also added a difference in Note 2 of this final rule to specify that we have not included the FAL action in this final rule. If EADS CASA CN-235/C-295 Technical Document DT-0-C00-05001, Issue C, dated October 2006, is revised in the future to include the FAL tasks, or if these tasks are included in another document, we might consider additional rulemaking then. This AD requires operators to revise the Airworthiness Limitations Section

(ALS)of the Instructions for Continued Airworthiness to include CDCCL data. Operators must comply with the terms of the ALS, as specified in sections 43.16 (for persons maintaining products) and 91.403 (for operators) of the Federal Aviation Regulations (14 CFR 43.16 and 14 CFR 91.403). However, for the FAA to require compliance with any new or more restrictive life limits and inspections that the manufacturer or the FAA might impose in the ALS, we must engage in rulemaking; if we do not engage in rulemaking, the revised limitations in the maintenance manual cannot be made mandatory. We have, however, determined that it is appropriate in this case to allow accomplishing the ALS revision by incorporating the CDCCLs as defined in later revisions of EADS CASA CN-235/C-295 Technical Document DT-0-C00-05001, Issue C, dated October 2006. Therefore, we have revised paragraph (f)(3) of the NPRM (paragraph (f)(2) of this final rule) to allow later revisions of the EADS CASA technical document as acceptable methods of compliance if they are approved by the Manager, ANM-116, International Branch, Transport Airplane Directorate, FAA, or the European Aviation Safety Agency

(EASA)(or its delegated agent). We have also added Table 1 and a new Note 1 to this final rule to provide information about the EADS CASA Component Maintenance Manuals

(CMMs)that are given as references in EADS CASA CN-235/C-295 Technical Document. Conclusion We reviewed the relevant data and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance We estimate that this AD will affect about 8 products of U.S. registry. We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $640, or $80 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. *For the reasons discussed above, I certify this AD:* 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **2008-09-22 Construcciones Aeronauticas, S.A. (CASA):** Amendment 39-15503. Docket No. FAA-2007-0048; Directorate Identifier 2007-NM-181-AD. Effective Date

(a)This airworthiness directive

(AD)becomes effective June 5, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to all CASA Model CN-235, CN-235-100, CN-235-200, CN-235-300, and C-295 airplanes; certificated in any category. Subject

(d)Air Transport Association

(ATA)of America Code 28: Fuel. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, the FAA published Special Federal Aviation Regulation 88 (SFAR 88) in June 2001. SFAR 88 required a safety review of the aircraft Fuel Tank System to determine that the design meets the requirements of FAR (Federal Aviation Regulation) § 25.901 and § 25.981(a) and (b). A similar regulation has been recommended by the JAA (Joint Aviation Authorities) to the European National Aviation Authorities in JAA letter 04/00/02/07/03-L024 of 3 February 2003. The review was requested to be mandated by NAA's (National Aviation Authorities) using JAR (Joint Aviation Regulation) § 25.901(c), § 25.1309. In August 2005 EASA published a policy statement on the process for developing instructions for maintenance and inspection of Fuel Tank System ignition source prevention (EASA D 2005/CPRO, *www.easa.eu.int/home/cert_policy_statements_en.html* ) that also included the EASA expectations with regard to compliance times of the corrective actions on the unsafe and the not unsafe part of the harmonised design review results. On a global scale the TC (type certificate) holders committed themselves to the EASA published compliance dates (see EASA policy statement). The EASA policy statement has been revised in March 2006: The date of 31-12-2005 for the unsafe related actions was set at 01-07-2006. Fuel Airworthiness Limitations are items arising from a systems safety analysis that have been shown to have failure mode(s) associated with an ‘unsafe condition' as defined in FAA's memo 2003-112-15 ‘SFAR 88—Mandatory Action Decision Criteria'. These are identified in Failure Conditions for which an unacceptable probability of ignition risk could exist if specific tasks and/or practices are not performed in accordance with the manufacturers' requirements. This EASA Airworthiness Directive mandates the Fuel System Airworthiness Limitations (comprising maintenance/inspection tasks and Critical Design Configuration Control Limitations (CDCCL)) for the type of aircraft, that resulted from the design reviews and the JAA recommendation and EASA policy statement mentioned above. The corrective action is revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to include CDCCL data. Actions and Compliance

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

(1)Within 6 months after the effective date of this AD, or before December 16, 2008, whichever occurs first, revise the Airworthiness Limitations section of the Instructions for Continued Airworthiness to include the CDCCL data using a method approved in accordance with the procedures specified in paragraph (g)(1) of this AD. One approved method is EADS CASA CN-235/C-295 Technical Document DT-0-C00-05001, Issue C, dated October 2006. Where the EADS CASA technical document refers to an EADS CASA component maintenance manual (CMM), use the applicable CMM specified in Table 1 of this AD. Table 1.—Approved Methods of Compliance CDCCL No. CDCCL description CMM Revision Date 8 Fuel pumps Parker Hannifin CMM with Illustrated Parts List 28-22-12 (replaces CM 1C12-34) 5 January 10, 2008. 8 Centrifugal fuel boost pump Parker Hannifin CMM with Illustrated Parts List CM 1C7-20, -21 (replaces CMM RR54170) B November 20, 2006. 9 Low level sensor EADS CASA CMM with Illustrated Parts List 28-21-12 002 June 15, 2007. 10 3/4 ″ shutoff motorized valve Eaton CMM with Illustrated Parts List 28-20-81 2 June 20, 2006. 11 2″ motorized spherical plug pressure relief valve Eaton CMM with Illustrated Parts List 28-10-63 3 June 20, 2006. 12 Signal conditioner Gull CMM with Illustrated Parts List 28-40-61 3 June 28, 2007. 13 Fuel control unit Zodiac Intertechnique CMM 28-41-05 3 September 25, 2006. Note 1: Table 1 does not include CMM 28-22-15, CE400150-E01, and C 17MQ0020-005SE, which are listed in EADS CASA CN-235/C-295 Technical Document DT-0-C00-05001, Issue C, dated October 2006. These CMM document numbers no longer apply. In addition, CMM document number 28-21-81 in EADS CASA CN-235/C-295 Technical Document DT-0-C00-05001, Issue C, dated October 2006, should be CMM document number 28-20-81.

(2)After accomplishing the actions specified in paragraph (f)(1) of this AD, no alternative CDCCLs may be used unless the CDCCLs are part of a later revision of EADS CASA CN-235/C-295 Technical Document DT-0-C00-05001, Issue C, dated October 2006, that is approved by the Manager, ANM-116, International Branch, Transport Airplane Directorate, FAA, or the European Aviation Safety Agency

(EASA)(or its delegated agent); or unless the CDCCLs are approved as an alternative method of compliance

(AMOC)in accordance with the procedures specified in paragraph (g)(1) of this AD. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows: Although EASA Airworthiness Directive 2007-0007, dated January 9, 2007, specifies to incorporate into the aircraft maintenance program the fuel airworthiness limitation maintenance and inspection tasks defined in EADS CASA CN-235/C-295 Technical Document DT-0-C00-05001, Issue C, dated October 2006, we have not included that action. The EADS CASA Technical Document does not contain FAL maintenance and inspection tasks. Other FAA AD Provisions

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

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, ANM-116, International Branch, 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: Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1112; fax

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

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

(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 2007-0007, dated January 9, 2007; and EADS CASA CN-235/C-295 Technical Document DT-0-C00-05001, Issue C, dated October 2006; for related information. Material Incorporated by Reference

(i)None. Issued in Renton, Washington, on April 24, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-9569 Filed 4-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0216; Directorate Identifier 2008-CE-004-AD; Amendment 39-15489; AD 2008-09-08] RIN 2120-AA64 Airworthiness Directives; Przedsiebiorstwo Doswiadczalno-Produkcyjne Szybownictwa “PZL-Bielsko” Model SZD-50-3 “Puchacz” Gliders AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are superseding an existing airworthiness directive

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

(MCAI)issued 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: On the pre-flight check of a SZD-50-3 glider, the Right Hand

(RH)wing airbrake was found impossible to retract. Investigation revealed that the occurrence was caused by a loose bolt of the “V” shape airbrake bellcrank, named hereafter intermediate control lever. The Left Hand

(LH)wing lever also presented, to a lesser extent, a loose bolt. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective June 5, 2008. As of February 1, 2008 (73 FR 3623), the Director of the Federal Register approved the incorporation by reference of Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007, listed in this AD. ADDRESSES: You may examine the AD docket on the Internet at *http://www.regulations.gov* or in person at the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4130; fax:

(816)329-4090. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking

(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on February 26, 2008 (73 FR 10188), and proposed to supersede AD 2008-02-09, Amendment 39-15339 (73 FR 3623, January 22, 2008). AD 2008-02-09 was issued as an interim action in order to address the need for the immediate inspection for loose attachment bolts in the left-hand and right-hand wing airbrake intermediate control lever requirement and replacement if loose attachment bolts were found. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, issued Emergency AD No. 2007-0275-E, dated October 24, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The EASA AD allows for repetitive inspections at intervals not to exceed 100 hours time-in-service or 12 months, whichever occurs first after the initial inspection if no loose bolts are found. The EASA AD also requires replacing the split helical spring lock washers with tab washers and the M8x34 bolts with M8x32 bolts on both wings at the next 1,000-hour inspection after the effective date of the AD. The Administrative Procedure Act does not permit the FAA to “bootstrap” a long-term requirement into an urgent safety of flight action where the rule becomes effective at the same time the public has the opportunity to comment. The short-term action and the long-term action were analyzed separately for justification to bypass prior public notice. We are issuing this AD to address the repetitive inspections and mandatory parts replacement issues. Comments We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public. Conclusion We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance We estimate that this AD will affect about 6 products of U.S. registry. We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $480, or $80 per product. In addition, we estimate that any necessary follow-on actions will take about 12 work-hours and require parts costing $40, for a cost of $1,000 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD:

(1)Is not a “significant regulatory action” under Executive Order 12866;

(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-15339 (73 FR 3623, January 22, 2008), and adding the following new AD: **2008-09-08 Przedsiebiorstwo Doswiadczalno-Produkcyjne Szybownictwa “PZL-Bielsko”:** Amendment 39-15489; Docket No. FAA-2008-0216; Directorate Identifier 2008-CE-004-AD. Effective Date

(a)This airworthiness directive

(AD)becomes effective June 5, 2008. Affected ADs

(b)This AD supersedes AD 2008-02-09, Amendment 39-15339. Applicability

(c)This AD applies to Model SZD-50-3 “Puchacz” gliders, all serial numbers up to and including B-2207, 503199327, 503A04001, 503A05002, and 503A05003, certificated in any category. Subject

(d)Air Transport Association of America

(ATA)Code 27: Flight Controls. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: On the pre-flight check of a SZD-50-3 glider, the Right Hand

(LH)wing lever also presented, to a lesser extent, a loose bolt. This AD requires inspection of the LH and RH wing airbrake intermediate control levers for loose attaching bolts and subsequent repetitive inspections and corrective actions, as necessary. As a terminating action, replacement of the bolts and their associated washers is required. These actions are intended to address the identified unsafe condition so as to prevent loss of the airbrake control system which could result in an inadvertent forced landing with consequent sailplane damage and/or passenger injury. Requirements Retained From AD 2008-02-09

(f)Do the following unless already done:

(1)Inspect the left-hand

(LH)and the right-hand

(RH)wing airbrake intermediate control levers for loose attaching bolts within 10 days after February 1, 2008 (the effective date of AD 2008-02-09), following Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007.

(2)If any loose bolt is found during the inspection required in paragraph (f)(1) of this AD, replace the split helical spring lock washers with tab washers and replace the M8x34 bolts with M8x32 bolts on both wings before further flight following Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007. After doing this replacement, no further action is required by this AD. New Requirements of This AD: Actions and Compliance

(g)Do the following unless already done:

(1)If a loose bolt is not found during the initial inspection required in paragraph (f)(1) of this AD, repetitively inspect thereafter at intervals not to exceed 100 hours time-in-service

(TIS)or 12 months, whichever occurs first, until you are required to do the replacement specified in paragraph (g)(2) or (g)(3) of this AD. Do the inspections following Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007.

(2)If any loose bolt is found during any inspection required in paragraph (g)(1) of this AD, replace the split helical spring lock washers with tab washers and replace the M8x34 bolts with M8x32 bolts on both wings before further flight following Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007. After doing this replacement, no further action is required by this AD.

(3)Replace the split helical spring lock washers with tab washers and replace the M8x34 bolts with M8x32 bolts on both wings within the next 1,000 hours TIS after June 5, 2008 (the effective date of this AD), following Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007. After doing this replacement, no further action is required by this AD. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

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

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

(816)329-4130; *fax:*

(816)329-409. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

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

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

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

(i)Refer to MCAI European Aviation Safety Agency

(EASA)Emergency AD No. 2007-0275-E, dated October 24, 2007; and Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007, for related information. Material Incorporated by Reference

(j)You must use Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007, to do the actions required by this AD, unless the AD specifies otherwise.

(1)On February 1, 2008 (73 FR 3623), the Director of the Federal Register previously approved the incorporation by reference of Allstar PZL Glider Sp. z o. o. Service Bulletin No. BE-059/SZD-50-3/2007 “PUCHACZ,” dated October 15, 2007.

(2)For service information identified in this AD, contact ALLSTAR PZL GLIDER Sp. z o.o., ul. Cieszynska 325, 453-300 Bielsko-Biala.

(3)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html.* Issued in Kansas City, Missouri, on April 18, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-9578 Filed 4-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 95 [Docket No. 30606; Amdt. No. 474] IFR Altitudes; Miscellaneous Amendments AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This amendment adopts miscellaneous amendments to the required IFR (instrument flight rules) altitudes and changeover points for certain Federal airways, jet routes, or direct routes for which a minimum or maximum en route authorized IFR altitude is prescribed. This regulatory action is needed because of changes occurring in the National Airspace System. These changes are designed to provide for the safe and efficient use of the navigable airspace under instrument conditions in the affected areas. DATES: *Effective Date:* 0901 UTC, June 5, 2008. FOR FURTHER INFORMATION CONTACT: Donald P. Pate, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK. 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone:

(405)954-4164. SUPPLEMENTARY INFORMATION: This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points

(COPs)for Federal airways, jet routes, or direct routes as prescribed in part 95. The Rule The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days. Conclusion The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866;

(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and

(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 95 Airspace, Navigation (air). Issued in Washington, DC on April 28, 2008. James J. Ballough, Director, Flight Standards Service. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, June 5, 2008. 1. The authority citation for part 95 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44719, 44721. 2. Part 95 is amended to read as follows: Revisions to IFR Altitudes and Changeover Points [Amendment 474 effective date June 5, 2008] From To MEA MAA § 95.3001 Victor Routes—U.S. § 95.3209 RNAV Route T209 Is Added To Read Ehejo, GA FIX Jamta, GA WP 2000 17500 Jamta, GA WP Colliers, SC VORTAC 2500 17500 § 95.3251 RNAV Route T251 Is Added To Read Farmington, MO VORTAC Foristell, MO VORTAC 3000 6000 Foristell, MO VORTAC Rivrs, IL WP 2700 6000 § 95.4272 RNAV Route T272 Is Added To Read Hallsville, MO VORTAC Vandalia, IL VORTAC 2700 6000 From To MEA § 95.6001 Victor Routes—U.S. § 95.6001 VOR Federal Airway V1 Is Amended To Read in Part # Salisbury, MD VORTAC Waterloo, DE VOR/DME * 2000 * 1500—MOCA # CHART NOTE: SBY R-039 UNUSABLE BELOW 5000. § 95.6034 VOR Federal Airway V34 Is Amended To Read in Part * Weets, NY FIX Pawling, NY VOR/DME 4000 * 6000—MRA § 95.6106 VOR Federal Airway V106 Is Amended To Read in Part Weard, NY FIX * Weets, NY FIX 6000 * 6000—MRA * Weets, NY FIX Pawling, NY VOR/DME 4000 * 6000—MRA Raymy, NH FIX Kennebunk, ME VORTAC * 5500 * 2200—MOCA * 3000—GNSS MEA § 95.6123 VOR Federal Airway V123 Is Amended To Read in Part Mitch, MD FIX Swann, MD FIX * 5500 * 3000—GNSS MEA Swann, MD FIX Tacks, MD FIX * 7000 * 4000—GNSS MEA Haarp, CT FIX * Rymes, CT FIX ** 5000 * 5000—MRA ** 2000—MOCA ** 3000—GNSS MEA § 95.6157 VOR Federal Airway V157 Is Amended To Read in Part Lakeland, FL VORTAC Ocala, FL VORTAC 2000 § 95.6167 VOR Federal Airway V167 Is Amended To Read in Part Peake, MA FIX Marconi, MA VOR/DME * 3000 * 1600—MOCA Marconi, MA VOR/DME Kennebunk, ME VORTAC * 5000 * 1600—MOCA * 4000—GNSS MEA § 95.6184 VOR Federal Airway V184 Is Amended To Read in Part Delro, PA FIX Modena, PA VORTAC * 10000 * 3900—MOCA * 4000—GNSS MEA § 95.6195 VOR Federal Airway V195 Is Amended To Read in Part Oakland, CA VORTAC Croit, CA FIX 4000 Croit, CA FIX * Cordd, CA FIX 5000 * 6200—MCA CORDD, CA FIX , N BND Cordd, CA FIX * Raggs, CA FIX ** 8500 * 8500—MRA ** 5000—MOCA * Raggs, CA FIX ** Bessa, CA FIX *** 7500 * 8500—MRA ** 7500—MCA BESSA, CA FIX , S BND ** 4800—MOCA Bessa, CA FIX Williams, CA VORTAC 5300 § 95.6203 VOR Federal Airway V203 Is Amended To Read in Part Albany, NY VORTAC Otole, NY FIX * 6000 * 2000—MOCA * 3000—GNSS MEA § 95.6203 VOR Federal Airway V203 Is Amended To Read in Part Dinny, NY FIX Saranac Lake, NY VOR/DME 6700 § 95.6205 VOR Federal Airway V205 Is Amended To Read in Part Weard, NY FIX * Weets, NY FIX 6000 * 6000—MRA * Weets, NY FIX Stuby, CT FIX ** 8500 * 6000—MRA ** 5000—GNSS MEA § 95.6235 VOR Federal Airway V235 Is Amended To Read in Part Matzo, UT FIX * Cedar City, UT VOR/DME 12400 * 11400—MCA CEDAR CITY, UT VOR/DME , S BND § 95.6268 VOR Federal Airway V268 Is Amended To Read in Part * Tonni, MA FIX ** Meshl, ME FIX *** 5000 * 6000—MRA ** 5000—MRA *** 4000—GNSS MEA § 95.6474 VOR Federal Airway V474 Is Amended To Read in Part Delro, PA FIX Modena, PA VORTAC * 10000 * 3900—MOCA * 4000—GNSS MEA § 95.6542 VOR Federal Airway V542 Is Amended To Read in Part # Albany, NY VORTAC Cambridge, NY VOR/DME * 4000 * 3000—MOCA # ALBANY R-067 UNUSABLE Airway Segment From To Changeover points Distance From § 95.8003 VOR Federal Airway Changeover Points V146 Is Amended To Add Changeover Point Albany, NY VORTAC Chester, MA VOR/DME 8 Albany [FR Doc. E8-9602 Filed 4-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 381 [Docket No. RM08-9-000] Annual Update of Filing Fees April 24, 2008. AGENCY: Federal Energy Regulatory Commission, Department of Energy. ACTION: Final rule; annual update of Commission filing fees. SUMMARY: In accordance with 18 CFR 381.104, the Commission issues this update of its filing fees. This notice provides the yearly update using data in the Commission's Management, Administrative, and Payroll System to calculate the new fees. The purpose of updating is to adjust the fees on the basis of the Commission's costs for Fiscal Year 2007. DATES: *Effective Date:* June 2, 2008. FOR FURTHER INFORMATION CONTACT: Elizabeth Hensley, Office of the Executive Director, Federal Energy Regulatory Commission, 888 First Street, NE., Room 4R-03, Washington, DC 20426, 202-502-6240. SUPPLEMENTARY INFORMATION: *Document Availability:* In addition to publishing the full text of this document in the **Federal Register** , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( *http://www.ferc.gov* ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington DC 20426. From FERC's Web site on the Internet, this information is available in the eLibrary (formerly FERRIS). The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field and follow other directions on the search page. User assistance is available for eLibrary and other aspects of FERC's Web site during normal business hours. For assistance, contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or toll free at

(866)208-3676, or for TTY, contact

(202)502-8659. The Federal Energy Regulatory Commission (Commission) is issuing this notice to update filing fees that the Commission assesses for specific services and benefits provided to identifiable beneficiaries. Pursuant to 18 CFR 381.104, the Commission is establishing updated fees on the basis of the Commission's Fiscal Year 2007 costs. The adjusted fees announced in this notice are effective June 2, 2008. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this final rule is not a major rule within the meaning of section 251 of Subtitle E of Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). The Commission is submitting this final rule to both houses of the United States Congress and to the Comptroller General of the United States. The new fee schedule is as follows: **Fees Applicable to the Natural Gas Policy Act** 1. Petitions for rate approval pursuant to 18 CFR 284.123(b)(2). (18 CFR 381.403) $10,440 **Fees Applicable to General Activities** 1. Petition for issuance of a declaratory order (except under Part I of the Federal Power Act). (18 CFR 381.302(a)) 20,970 2. Review of a Department of Energy remedial order: *Amount in controversy* $0-9,999. (18 CFR 381.303(b)) 100 $10,000-29,999. (18 CFR 381.303(b)) 600 $30,000 or more. (18 CFR 381.303(a)) 30,620 3. Review of a Department of Energy denial of adjustment: *Amount in controversy* $0-9,999. (18 CFR 381.304(b)) 100 $10,000-29,999. (18 CFR 381.304(b)) 600 $30,000 or more. (18 CFR 381.304(a)) 16,050 4. Written legal interpretations by the Office of General Counsel. (18 CFR 381.305(a)) 6,010 **Fees Applicable to Natural Gas Pipelines** 1. Pipeline certificate applications pursuant to 18 CFR 284.224. (18 CFR 381.207(b)) * 1,000 **Fees Applicable to Cogenerators and Small Power Producers** 1. Certification of qualifying status as a small power production facility. (18 CFR 381.505(a)) 18,030 2. Certification of qualifying status as a cogeneration facility. (18 CFR 381.505(a)) 20,410 * This fee has not been changed. List of Subjects in 18 CFR Part 381 Electric power plants, Electric utilities, Natural gas, Reporting and recordkeeping requirements. Thomas R. Herlihy, Executive Director. In consideration of the foregoing, the Commission amends Part 381, Chapter I, Title 18, Code of Federal Regulations, as set forth below. PART 381—FEES 1. The authority citation for part 381 continues to read as follows: Authority: 15 U.S.C. 717-717w; 16 U.S.C. 791-828c, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1-85. § 381.302 [Amended] 2. In 381.302, paragraph

(a)is amended by removing “$20,940” and adding “$20,970” in its place. § 381.303 [Amended] 3. In 381.303, paragraph

(a)is amended by removing “$30,560” and adding “$30,620” in its place. § 381.304 [Amended] 4. In 381.304, paragraph

(a)is amended by removing “$16,020” and adding “$16,050” in its place. § 381.305 [Amended] 5. In 381.305, paragraph

(a)is amended by removing “$6,000” and adding “$6,010” in its place. § 381.403 [Amended] 6. Section 381.403 is amended by removing “$10,420” and adding “$10,440” in its place. § 381.505 [Amended] 7. In 381.505, paragraph

(a)is amended by removing “$18,000” and adding “$18,030” in its place and by removing “$20,380” and adding “$20,410” in its place. [FR Doc. E8-9548 Filed 4-30-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 101 [Docket No. FDA-2006-P-0405] (formerly Docket No. 2006P-0069) Food Labeling: Health Claims; Soluble Fiber from Certain Foods and Risk of Coronary Heart Disease AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration

(FDA)is amending its regulation authorizing a health claim on the relationship between soluble fiber from certain foods and risk of coronary heart disease (CHD). The amendment exempts certain foods from the nutrient content requirement of “low fat.” The exemption will apply if the food exceeds the “low fat” requirement due to fat content derived from whole oat sources. The amendment expands the use of this health claim to some whole oat products that are currently ineligible for the health claim. FDA is taking this action in response to a petition submitted by the Quaker Oats Co. DATES: This final rule is effective May 1, 2008. FOR FURTHER INFORMATION CONTACT: Vincent de Jesus, Center for Food Safety and Applied Nutrition (HFS-830), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-1774. SUPPLEMENTARY INFORMATION: I. Background In the **Federal Register** of February 6, 2007 (72 FR 5367), FDA published a proposed rule to amend the regulation authorizing a health claim on the relationship between soluble fiber from certain foods and risk of CHD. FDA proposed to amend the CHD health claim at § 101.81 (21 CFR 101.81) so that foods that exceed the nutrient content requirement in § 101.62 for “low fat” due to fat content derived from whole oat sources (i.e., oat bran, rolled oats, whole oat flour, and oatrim) listed in § 101.81(c)(2)(ii)(A) would be eligible to bear the health claim. Specifically, FDA proposed to amend § 101.81(c)(2)(iii)(C) by removing the phrase, “low fat” food and creating a new § 101.81(c)(2)(iii)(D) to specify that the food shall meet the “low fat” food requirement, unless the food exceeds this requirement due to fat content derived from whole oat sources listed in § 101.81(c)(2)(ii)(A). FDA issued this proposed rule in response to a health claim petition submitted by the Quaker Oats Co. (the petitioner) on November 7, 2005, under section 403(r)(4) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 343(r)(4)). Section 403(r)(3)(B)(i) of the act (21 U.S.C. 343(r)(3)(B)(i)) states that the Secretary of Health and Human Services (the Secretary) (and, by delegation, FDA) shall issue regulations for health claims if the Secretary determines, based on the totality of publicly available scientific evidence, that there is significant scientific agreement that the claim is supported by such evidence (see also 21 CFR 101.14(c)). Section 403(r)(4) of the act sets out the procedures that FDA is to follow upon receiving a health claim petition. FDA filed the petition for comprehensive review in accordance with section 403(r)(4) of the act on February 15, 2006. In regulations authorizing CHD-related health claims, FDA has required, with a few exceptions, that foods bearing such claims meet the “low fat“ criterion defined by § 101.62(b)(2), 1 the “low saturated fat” criterion defined by § 101.62(c)(2), and the “low cholesterol” criterion defined by § 101.62(d)(2) (see authorized claims in 21 CFR 101.75, 101.77, 101.81, 101.82, and 101.83) rather than applying the total fat, saturated fat, and cholesterol content disqualifying levels specified in the general requirement for health claims (§ 101.14(a)(4)). The “low fat” criterion is currently applied to the soluble fiber from certain foods and CHD health claim in § 101.81(c)(2)(iii)(C). 1 “Low fat” food is defined in § 101.62(b)(2) as follows:

(1)A food that has a RACC greater than 30 g or greater than 2 tablespoons and contains 3 g or less of fat per RACC; or

(2)a food that has a RACC of 30 g or less or 2 tablespoons or less and contains 3 g or less of fat per reference amount customarily consumed

(RACC)and per 50 g of food. Further, under § 101.62(b)(3), meal products and main dish products (as defined in § 101.13(l) and § 101.13(m) respectively) are “low fat” if they contain 3 g or less of total fat per 100 g and not more than 30 percent of calories from fat. Prior to the publication of this final rule, foods such as Quaker Oats Co.'s flavored reduced sugar instant oatmeal products were ineligible for the soluble fiber from certain foods and CHD health claim because these products did not meet the “low fat” criterion, whereas its flavored, unmodified instant oatmeal product containing the same amount of rolled oats and fat, but 12 grams

(g)more sugar, per packet does meet the criterion. The removal of sugar from the flavored unmodified instant oatmeal product resulted in more whole oats (and thus fat from whole oats) per RACC. Thus, these food products were not eligible to bear the soluble fiber from certain foods and CHD health claim because these foods exceed the “low fat” criterion due to the fat contained in the whole oat source. In the proposed rule, FDA stated that a food product that contains any fat from ingredients other than whole oat sources would not be exempt from the “low fat” requirement. However, FDA asked for comment on whether whole oat food products that contain sources of fat other than whole oat sources should be exempt from the “low fat” requirement and, if so, how much and what types(s) of fat contributed by these sources would be acceptable (72 FR 5367 at 5370). FDA solicited comments on the proposed rule. The comment period closed on April 23, 2007. The agency received eight responses, each containing one or more comments, to the proposed rule. The comments were from trade associations, industry, a health professional organization, a foreign government, and consumers. Most of the comments supported the proposed amendment. One comment raised issues that were outside the scope of this rulemaking and will not be discussed in this document. The remaining comments and the agency's responses are discussed below. (Comment 1) One comment opposed FDA exempting whole oat food products from the “low fat” requirement, but did not provide any specific information or data in support of its position. (Response) The agency disagrees with this comment. FDA believes that the consumption of foods containing whole oat products is helpful in reducing the risk of CHD, and the amount by which the fat content derived solely from whole oat sources may exceed the low fat criterion would not be very significant and is not likely to be a health concern. Moreover, the exemption does not cover a food product that contains any fat from ingredients other than whole oat sources and granting this exemption will provide consumers more choices of whole oat products (72 FR 5367 at 5370). The comment did not provide any information or data in support of its position. (Comment 2) One comment opposing the proposed rule argued that granting the exemption would be the same as saying that full fat whole oatmeal cookies could reduce the risk of heart disease. (Response) The agency disagrees with the comment. As discussed in the proposed rule, only a limited number of products would be newly eligible to bear the claim (72 FR 5367 at 5372). Under the new exemption, a food must meet the “low fat” requirement “unless the food exceeds this requirement due to fat content derived from whole oat sources” (§ 101.81(c)(2)(iii)(D)). The products eligible to bear the claim would not contain any fat from sources other than the fat inherent in the whole oat sources. Food products that are typically made with other fat sources, such as cookies, would likely be ineligible for the claim. (Comment 3) One comment opposing the proposed rule was concerned that the exemption allowing an exception to a marketing claim for a single food product that has been modified would confuse consumers. (Response) FDA disagrees with the comment. Consumers will not be confused by this exemption because it does not apply only to a single food product. The final rule merely expands the use of this health claim to cover any whole oat product that was previously ineligible for the claim due to the fat derived from the whole oat source. The food product described in the petition only serves as an example of a consequence that was not intended (reduction of sugar leading to ineligibility for the claim) in the authorization of the original health claim. The agency wishes to eliminate this unintended consequence and allow consumers access to information about the health benefits of whole oat sources. (Comment 4) One comment stated that any health claim related to CHD should meet requirements of “low soluble fibre, low saturated fat, and low cholesterol.” The comment did not provide any specific information or data in support of its position. (Response) Foods eligible for CHD-related health claims are currently required to meet the definition of “low fat,” “low saturated fat,” and “low cholesterol,” unless specifically exempted (see 21 CFR 101.75 (dietary saturated fat and cholesterol and CHD)), 21 CFR 101.77 (fruits, vegetables, and grain products containing fiber and CHD), § 101.81 (soluble fiber and CHD), 21 CFR 101.82 (soy protein and CHD), and 21 CFR 101.83 (plant sterol/stanol esters and CHD)). This final rule does not change the nutrient content requirements for “low saturated fat,” “low fat,”or “low cholesterol” found in these CHD-related health claims. The agency notes that the soy protein and CHD health claim also contains an exemption for the “low fat” requirement. Specifically, the soy protein and CHD health claim requires the food to meet the nutrient content requirement for “low fat” found in § 101.62 “unless it consists of or is derived from whole soybeans and contains no fat in addition to the fat inherently present in the whole soybeans it contains or from which it is derived” (§ 101.82(c)(2)(iii)(C)). Contrary to what the comment infers, foods are not required to meet any soluble fiber requirements to bear a CHD-related health claim except in the specific case where fiber has been declared as the substance that is the subject of the claim (i.e., the fruits, vegetables, and grain products containing fiber and CHD-related health claim found at § 101.77 and the health claim discussed in this rule). Even in these cases, the fiber requirement is to meet certain fiber levels, not to keep the fiber (soluble or otherwise) “low.” The agency has determined in these CHD-related health claims that diets that are low in saturated fat and cholesterol and that include soluble fiber from certain foods may reduce the risk of CHD (see §§ 101.77(a) and 101.81(a) for explanations of the relationship between diets low in saturated fat and cholesterol that contain fiber). Therefore for these CHD-related health claims, the goal is to encourage the consumption of fiber-rich foods, and not to limit the amount of fiber in the food as the comment suggests. (Comment 5) Two comments requested that FDA extend the exemption from the “low fat” requirement to other beta-glucan-containing food products, specifically whole grain barley, dry milled barley, and other barley products. (Response) FDA is not now exempting other beta-glucan-containing food products from the “low fat” nutrient content requirement. As discussed in the proposed rule, it is possible that a product could exceed the maximum total fat permitted under the “low fat” requirement solely due to fat from whole oat sources. The total fat content of whole oat sources can be as high as 7.0 g per 100 g, whereas other cereal grain products are lower in fat. “Whole oats contain a higher amount of total fat than barley (2.3 g per 100 g) or other cereal grains such as whole wheat (1.9 g per 100 g whole wheat flour), rice (2.9 g per 100 g brown rice) or corn (1.2 g per 100 g dry corn grits)” (72 FR 5367 at 5369). As a result of these nutrient compositions, it is likely that additional cereal grain food products on the market consisting of other cereal grains (and not including other sources of fat) would already meet the “low fat” requirement for the soluble fiber claim and would not require any exemption to this requirement. The agency is aware, however, that advances in food technology (such as the reduction of sugar in oatmeal products) can lead to consequences unintended by the original health claim, and in those cases, the agency can be petitioned under section 403(r)(4) of the act to address the issue in rulemaking. (Comment 6) Two comments requested that FDA eliminate the “low fat” requirement for this health claim based on the latest 2005 *Dietary Guidelines for Americans* science and dietary recommendations. The comments recommended that a “moderate” level of fat should be the requirement that foods eligible for the claim should have to meet. This change, the comments noted, could allow food products eligible to bear the claim to contain as much as 13 g total fat (the total fat disqualifying level). In support of their position, the comments pointed out that the 2005 *Dietary Guidelines for Americans* do not require that diets be low in fat. (Response) FDA is not revising the rule as requested by the comment. Section 101.81(c)(2)(iii)(C) states that a food eligible to bear a soluble fiber and CHD health claim must meet the nutrient content requirements in § 101.62 for a “low saturated fat,” “low cholesterol,” and “low fat” food. “Low saturated fat,” “low cholesterol,” and “low fat” are nutrient content claims defined by regulation (§ 101.62). “Moderate fat” is not defined by regulation nor was defining this term foreshadowed in the proposal. However, any interested person can petition the agency to define and authorize a new nutrient content claim for “moderate fat” under section 403(r)(4) of the act. (Comment 7) One comment requested that FDA exempt fat from fortificants (e.g., vitamin A palmitate) from the “low fat” requirement because the amount of fat from fortificants would likely be “inconsequential.” (Response) FDA is not granting the requested exemption. The agency asked for comment in the proposed rule about whether to exempt whole oat products that contain sources of fat other than whole oat sources and, if so, how much and what type(s) of fat contributed by these sources would be acceptable. However, FDA did not receive, nor does it have, sufficient data regarding fortificants, such as vitamin A palmitate, to determine if whole oat foods that contain sources of fat from fortificants should be exempted from the “low fat” requirement. Although FDA is not now revising the rule to include fat from fortificants as a source of fat eligible for the exemption from the “low fat” requirement, any interested person can petition the agency for such an exemption under section 403(r)(4) of the act. (Comment 8) One comment requested that FDA confirm the nutrient composition values for total fat because the USDA National Nutrient Database has been updated since the proposal was published in February 2007. (Response) The agency has confirmed that the values for fat composition of the grains cited in the proposed rule (i.e., about 6.9 g per 100 g for whole oats (same as whole oat flour), 6.3 g per 100 g for rolled oats, and 7.0 g per 100 g for oat bran) have remained unchanged in the newest release of the USDA National Nutrient Database for Standard Reference, Release 20 (Ref. 1). (Comment 9) One comment suggested that FDA also provide exemptions to the per 50 g provision of the “low fat” requirement for foods with small serving sizes. The comment stated that products should not need to meet the “low fat” criteria on a per 50 g basis in addition to a per RACC and labeled serving size basis since products with small serving sizes (e.g., ready-to-eat cereals) would not be eligible for the health claim. (Response) FDA advises that the exemption to the “low fat” requirement is not restricted by this final rule to food products with typical serving sizes. If a whole oat food product with a small serving size of 30 g or less or 2 tablespoons or less exceeds the “low fat” requirement on a 50 g basis due to fat derived solely from the whole oat source, it is exempted from the “low fat” requirement as well. Given the information discussed in the preamble to the proposed rule and the absence of contrary information in the comments, FDA is adopting as a final rule, without change, the proposed amendment to § 101.81 to exempt certain foods from the nutrient content requirement of “low fat” if the food exceeds this requirement due to fat content derived from whole oat sources. II. Analysis of Economic Impacts FDA has examined the impacts of the final rule under Executive Order 12866, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency does not believe that this final rule is an economically significant regulatory action as defined by the Executive order. The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this final rule allows new voluntary behavior and imposes no additional restrictions on current practices, the agency certifies that this final rule will not have a significant impact on a substantial number of small entities. Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before finalizing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $127 million, using the most current

(2006)Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount. A. The Need for Regulation Current 21 CFR 101.81 authorizes a health claim on foods for the relationship between soluble fiber from certain foods and reduced risk of CHD. One of the requirements for the claim is the nutrient content requirement for “low fat.” In order to bear the claim, foods must contain no more than 3 g of fat per RACC. The RACC for plain oatmeal is 40 g dry weight and the RACC for flavored, sweetened oatmeal is 55 g dry weight, assuming that 15 g of sugar is added. The amount of fat in 40 g of rolled oats is just below 3 g, mostly polyunsaturated fatty acids and monounsaturated fatty acids. A recently introduced flavored reduced-sugar oatmeal does not meet the criterion of 3 g or less of fat per 55 g dry weight. Because the amount of added sugar in this reduced-sugar oatmeal is less than 15 g, the proportional amount of fat, essentially all from whole oats, is slightly more than 3 g of fat per 55 g of the product compared to the sweetened oatmeal, even though the total amount of fat in both the sweetened and reduced-sugar oatmeal products is the same. The ineligibility of reduced-sugar oatmeal for this health claim due to less added sugar is an unintended consequence of the regulation. The current regulation, without amendment, causes a distortion in the market, where products are essentially penalized for adding less sugar or filler. In certain instances where two products are identical at the package level, except for the amount of sugar added, only the product with more sugar is able to carry the CHD health claim because the product with less sugar has more oats per RACC and exceeds the “low fat” requirement. The final rule is needed to remove this unintended consequence. B. Regulatory Options Considered The final rule amends the regulation authorizing a health claim on the relationship between soluble fiber from certain foods and risk of CHD. The amendment exempts certain foods from the nutrient content requirement of “low fat”. The exemption applies if the food exceeds this requirement due to fat content derived from certain oat sources. In drafting this rule, FDA considered two regulatory alternatives in addition to the final rule. The agency considered the following alternatives:

(1)No additional regulatory action and

(2)general relaxation of the total fat requirement, while keeping in place restrictions on saturated fat and cholesterol. This final rule will not be an economically significant regulatory action. FDA is not quantitatively estimating the benefits and costs of the regulatory alternatives to the final rule. In what follows, FDA qualitatively compares the costs and benefits of the regulatory options to the costs and benefits of the final rule. *1. Option one* . The first option considered is no action. As stated earlier, the current rule as it stands causes an unintended distortion in the market. Consumers have a higher than necessary search cost to find products that are both reduced in sugar and that have similar attributes of those currently carrying the CHD claim. Furthermore, taking no action stifles the innovation of new products that have all of the attributes of those with the CHD claim and that are reduced in sugar. 2. *Option two* . A second alternative to the final rule is a general relaxation of the total fat requirement from all fat sources for all products covered by the rule, while keeping in place restrictions on saturated fat and cholesterol. Relaxing the restriction for total fat from whole oat sources will not dampen the signal of the CHD claim (i.e. it will not reduce the clarity of the message that products bearing that claim in their labeling may reduce the risk of CHD), whereas a general relaxation of total fat from all fat sources in such products may have a deleterious effect in that the fat content may be excessive and increase the risk of CHD and negate the health benefits from the beta-glucan soluble fiber sources. The total fat content is about 6.9 g per 100 g for whole oats (same as whole oat flour) (Ref. 1), 6.3 g per 100 g for rolled oats (Ref. 1), 7.0 g per 100 g for oat bran (Ref. 1), and 2.1 g per 100 g for oatrim (Ref. 2). Whole oats contain a higher amount of total fat than barley (2.3 g per 100 g) or other cereal grains such as whole wheat (1.9 g per 100 g whole wheat flour), rice (2.9 g per 100 g brown rice) or corn (1.2 g per 100 g dry corn grits) (Ref. 1). However, most whole oat products that are essentially all whole oats meet the “low fat” requirement unless fat from other sources are added. For some products that do not meet the “low fat” requirement due to fat from whole oat sources, the amount of fat exceeding the “low fat” requirement may be small. For example, if a flavored sweetened oatmeal product were made almost entirely of whole oats, the total fat content of this product would not exceed 4 g per 55 g of RACC. Further, whole oats contain 1.2 g saturated fatty acids, 2.2 g monounsaturated fatty acids, and 2.5 g polyunsaturated fatty acids per 100 g (Ref. 1), and thus, polyunsaturated and monounsaturated fatty acids are the predominant types of fat in whole oats. Whole oats do not contain cholesterol. The *2005 Dietary Guidelines for Americans* (Ref. 3) recommends total fat intake be kept between 20 to 35 percent of calories, with most fats coming from sources of polyunsaturated and monounsaturated fatty acids, and less than 10 percent of calories from saturated fatty acids, and cholesterol intake be kept at less than 300 mg/day. Thus, the fat profile of whole oats is consistent with the *2005 Dietary Guidelines for Americans* recommendation of a moderate amount of total fat with most sources coming from polyunsaturated and monounsaturated fatty acids, and limiting intake of saturated fatty acids and cholesterol. Relaxing the total fat requirement for fat from whole oats will not have a negative health effect, and will allow the CHD claim to retain clarity when directing consumers to products consistent with a diet that is low in saturated fat and cholesterol, and high in soluble fiber. Relaxing the total fat requirement for fat from all fat sources in whole oat products may weaken the CHD claim signal that products bearing that claim in their labeling may reduce the risk of CHD. Under this scenario, products carrying the CHD claim could contain up to 13 g of fat per 55 g serving (i.e., the total fat disqualifying level for an individual food). The total fat disqualifying level is the level of total fat in a food above which the food will be disqualified from making a health claim (§ 101.14(a)(4)). Unlike whole oat sources, other products may have significantly more than the 3 g of fat per RACC that is the current total fat allowance for products carrying the CHD claim, and some may even approach the 13 g per RACC. Consumers using these products could easily increase their fat intake to levels above those recommended by the *2005 Dietary Guidelines for Americans* (Ref. 3). Furthermore, under current regulation that only stipulates disqualifying levels for saturated fat, cholesterol, and total fat, some of the increased fat intake could include *trans* fat. The potential health benefits would therefore be lower and the costs higher under this option than under the final rule. C. The Final Rule This section details the costs and benefits of the final rule. The baseline in this case is the current rule, option one listed above, so the benefits of the final rule are derived from an increase in the number of products consumers have to choose from that carry the CHD claim. The costs of the final rule are the health effects associated with the potential net increase in fat intake and the new labeling costs if a manufacturer decides to voluntarily use the health claim. 2 2 As discussed in detail in section C.3 of this regulatory impact analysis, a firm will not choose to label its product with the CHD claim if the firm can not make up the cost in higher margins for its product, increased volume of sales, or a combination of the two. Further, consumers will not pay the higher margin, or CHD claim premium, if they do not value the product relatively more than other products not carrying the claim. This increase in consumer willingness to pay for the CHD claim, though not to be confused with health benefits, will offset the private cost of the new labels. 1. Coverage of the rule Because much of the information required to assess whether a product will qualify for the CHD claim is not required on the Nutrition Facts label, FDA does not know with certainty how many products currently marketed will be affected by the final rule. 3 Furthermore, FDA cannot predict how many new products will be introduced because of the final rule. 3 For example, the source of the fat content is not required on the Nutrition Facts label. In estimating the baseline number of products, FDA identified five products in the 2001 Food Label and Package Survey (FLAPS) (Ref. 4) that use the fiber related CHD claim. Of these products, three are hot cereals, one is a cold cereal, and one is wheat germ. Wheat germ products will not be affected by the final rule. Other types of products containing whole oats, such as cereal and snack bars, muffins, and cookies, will also not likely be affected by the final rule, as these products typically contain fat from sources other than whole oat sources, and would not be eligible to carry the CHD claim. FLAPS is only a sample of all of the products available on the market. The five hot cereal products sampled made up 90 percent of all hot cereal sales in 2001. Therefore, it is possible that one or two products on the market that carry the CHD claim in 2001 were missed by the survey. The 6 cold cereals sampled made up only 18 percent of all cold cereal sales in 2001. Assuming the sample is representative implies that six or more products carrying the CHD claim were not included in the survey. Since 2001, new products carrying the claim may have entered the market and some products may have dropped out. Through a search of the web and local grocery stores, FDA identified a single “lower sugar“ hot cereal product that does not currently qualify for the CHD claim, but might under the final rule. The company that produces this product also produces two other “lower sugar“ hot cereal products that qualify for the claim under the current rule. Beyond this single product, it is difficult to accurately predict how many products will be developed that would qualify for the claim under the final rule. Other “lower sugar” flavors might be developed. Furthermore, “no sugar added” products could be developed that could qualify for the CHD claim. Based on the current, limited information, FDA estimates that between one and ten current and future products will be affected by this final rule. 2. Benefits The principal benefits of the final rule are derived from an increase in the number of products consumers have to choose from that carry the CHD claim. Society benefits from the increased number of CHD claim products in two ways:

(1)Increased consumer information and

(2)a potential health benefit. *a. Increased consumer information* . Consumers place a premium on products bearing a reduced CHD risk claim. That is, they value these products more than similar products not carrying the CHD claim. Part of this premium is due to a perceived health benefit. Part of it is also due to the fact that the CHD claim on the label, if consistent, 4 This is where you want the beginning of your text to appear instantly gives the consumer a lot of information about the product and therefore reduces search costs. The final rule, for example, will greatly increase the efficiency of a consumer's search for a product that is lower in sugar and also has all the qualities of a product carrying the CHD claim. 4 In section B.2 of this regulatory impact analysis, we assert that the relaxation of the total fat requirement for products made primarily of whole oats does not decrease the consistency or strength of the signal given by the CHD claim. *b. Potential health benefit* . If consumers substitute the new CHD claim products for less healthy alternatives, the final rule will have a positive health effect. If a consumer is currently eating a product daily that is “lower in sugar” but happens to be relatively high in saturated fat and cholesterol, that consumer could potentially enjoy better health by switching to the new “lower in sugar” product that also carries the CHD claim. For example, some evidence suggests that the risk of CHD may be decreased by more than 2 percent for every 1 g of oat bran consumed daily (Ref. 5). Without data allowing a prediction of consumer response, FDA cannot quantify this effect. Because the number of new products is likely to be small and the total dietary intake of consumers across the population is not likely to change drastically due to substitution between breakfast cereals, the health benefit is expected to be small. 3. Costs The principal costs of the final rule are the new labeling costs if a manufacturer decides to voluntarily use the health claim, and the possible negative health effect due to a potential increase in fat intake. *a. Labeling costs* . Although voluntary labeling costs are necessarily less than the consumer premium placed on the products, it is useful to estimate the costs. Doing so gives a better idea of the costs generated and provides a lower bound to the total consumer utility gained from such products. FDA used the 2004 Labeling Cost Model (Ref. 6) to calculate the potential new labeling costs produced by the final rule. The model calculates the cost of a new label based on the product type, label type, type of analytical and market tests necessary to develop the new label, compliance time, and inflation. Since the label is voluntary, firms can choose when to add the CHD label to their packaging and therefore can control the cost of the new label. If the firm chooses to immediately add the new label to the packaging, the full cost of redoing the label can be attributed to the CHD claim. Costs in this case will fall between $4,900 and $10,600 (mean = $6,800) per unique product. Firms typically update their label about every 3 years. If firms add the CHD claim when they would normally update their label, the cost of adding the new information on the package approaches zero. New products that are developed because of the final rule will not incur new labeling costs due to the CHD claim label. They will simply work the claim into their initial label development. Since FDA only identified one current existing product that may qualify for the CHD claim because of the relaxation of the total fat requirement in the final rule, the one time new labeling costs are estimated to be between zero and $10,600. *b. Potential increase in fat intake* . One other potential cost arises if total fat intake increases as a result of this claim. Total fat intake could either increase or decrease due to the final rule. Under the final rule, products carrying the CHD claim will on average contain more total fat than under the current rule. If there is no substitution between CHD claim products and other products, then the total intake of mostly polyunsaturated and monounsaturated fats would increase slightly in the population currently consuming CHD claim products. There is no evidence that a small increase in unsaturated fatty acids due to increased consumption of whole oat sources, even for a person eating multiple servings daily, would cause a negative health effect. In fact, a person with such a diet would still easily fall within the recommended fat intake (Ref. 3). If there is substitution between other products and CHD claims products (for example, between CHD claims cereal and other cereals that are higher in fat), it is possible that new CHD claims products might actually cause a decrease in total fat consumption. Due to the small number of products likely to make the CHD claim in the future, the health effect is likely to be small, but because some substitution from higher fat products is likely to occur, the health effect of the final rule with respect to fat intake will probably be positive. 4. Summary of Benefits and Costs Benefits and costs of the final rule are likely to be small because few products will be affected. Voluntary labeling costs for those manufacturers who choose to use the health claim are small (less than a one-time cost of $11,000) and necessarily less than the consumer premium placed on the products. Furthermore, it is likely that, with more product choices available bearing the CHD claim, there will be a net shift towards these products carrying the claim and away from other products. Although the size of this shift cannot be estimated with available data, it would result in a public health benefit. III. Environmental Impact FDA has determined under 21 CFR 25.32(p) that this action is of the type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. IV. Paperwork Reduction Act of 1995 FDA concludes that labeling provisions of this rule are not subject to review by the Office of Management and Budget because they do not constitute a “collection of information” under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Rather, the food labeling health claim on beta-glucan soluble fiber and CHD risk is a “public disclosure of information originally supplied by the Federal Government to the recipient for the purpose of disclosure to the public.” (see 5 CFR 1320.3(c)(2)). V. Federalism FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule will have a preemptive effect on State law. Section 4(a) of the Executive Order requires agencies to “construe * * * a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.” Section 403A of the act (21 U.S.C. 343-1) is an express preemption provision. Section 403A(a)(5) of the act provides that: “* * * no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce— * * *

(5)any requirement respecting any claim of the type described in section 403(r)(1) made in the label or labeling of food that is not identical to the requirement of section 403(r). * * *” This final rule amends existing food labeling regulations to provide an exemption for certain foods from the nutrient content requirement of “low fat.” Although this rule has a preemptive effect, in that it would preclude States from issuing any health claim labeling requirements for soluble fiber from certain foods and a reduced risk of CHD that are not identical to those required by this final rule, this preemptive effect is consistent with what Congress set forth in section 403A of the act. Section 403A(a)(5) of the act displaces both state legislative requirements and state common law duties. ( *Riegel* v. *Medtronic* , 128 S. Ct. 999 (2008)). FDA believes that the preemptive effect of this final rule is consistent with Executive Order 13132. Section 4(e) of the Executive Order provides that “when an agency proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.” On February 5, 2007, FDA's Division of Federal and State Relations provided notice by fax and e-mail transmission to State health commissioners, State agriculture commissioners, food program directors, and drug program directors as well as FDA field personnel, of FDA's publication of the proposed amendment to the health claim regulation authorizing the health claim for soluble fiber from certain foods and CHD (§ 101.81). In addition, the agency sought input from all stakeholders through publication of the proposed rule (72 FR 5367). FDA received no comments from any states on the proposed rulemaking. In conclusion, the agency believes that it has complied with all of the applicable requirements under the Executive Order and has determined that the preemptive effects of this final rule are consistent with Executive Order 13132. VI. References The following references have been placed on display in the Division of Dockets Management, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852 and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday. (FDA has verified all Web site addresses, but FDA is not responsible for any subsequent changes to the Web sites after this document publishes in the **Federal Register** .) 1. U.S. Department of Agriculture, Agricultural Research Service. 2007. USDA National Nutrient Database for Standard Reference, Release 20. Nutrient Data Laboratory Home Page, *http://www.ars.usda.gov/ba/bhnrc/ndl* . 2. The Quaker Oats Co. and Rhodia, Inc., “Oatrim [Beta Trim TM ] Health Petition,” HCN1, vol. 1, Docket No. 01A-0313, April 12, 2001. 3. U.S. Department of Health and Human Services and U.S. Department of Agriculture, *Dietary Guidelines for Americans* , *2005* , 6 th Edition, Washington, DC: U.S. Government Printing Office, ( *http://www.health.gov/dietaryguidelines/dga2005/document/* ), January 2005. 4. U.S. Food and Drug Administration, CFSAN/Office of Nutritional Products, Labeling, and Dietary Supplements, *Food Label and Package Survey 2000-2001* , ( *http://www.cfsan.fda.gov/~dms/lab-flap.html* ), May 2006. 5. Institute of Medicine of the National Academies, *Dietary Reference Intakes for Energy, Carbohydrate, Fiber, Fat, Fatty Acids, Cholesterol, Protein, and Amino Acids* , the National Academies Press, Washington, DC, 2005, pp. 367-368. 6. RTI International, *FDA Labeling Cost Model, Final Report* , ( *http://www.foodrisk.org/exclusives/FDA_LCM/* ), October 2004. List of Subjects in 21 CFR Part 101 Food labeling, Nutrition, Reporting and recordkeeping requirements. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 101 is amended as follows: PART 101—FOOD LABELING 1. The authority citation for 21 CFR part 101 continues to read as follows: Authority: 15 U.S.C. 1453, 1454, 1455; 21 U.S.C. 321, 331, 342, 343, 348, 371; 42 U.S.C. 243, 264, 271. 2. Section 101.81 is amended by revising paragraph (c)(2)(iii)(C) and by adding new paragraph (c)(2)(iii)(D) to read as follows: § 101.81 Health claims: Soluble fiber from certain foods and risk of coronary heart disease (CHD).

(c)* * *

(2)* * *

(iii)* * *

(C)The food shall meet the nutrient content requirement in § 101.62 for a “low saturated fat” and “low cholesterol” food; and

(D)The food shall meet the nutrient content requirement in § 101.62(b)(2) for a “low fat” food, unless the food exceeds this requirement due to fat content derived from whole oat sources listed in paragraph (c)(2)(ii)(A) of this section. Dated: April 25, 2008. Jeffrey Shuren, Associate Commissioner for Policy and Planning. [FR Doc. E8-9590 Filed 4-30-08; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 204 [DoD-2006-OS-0005] RIN 0790-AH93 User Fees AGENCY: Department of Defense. ACTION: Final rule. SUMMARY: The Department of Defense is revising 32 CFR Part 204 to better align it with Office of Management and Budget

(OMB)Circular A-25, “User Charges.” This part provides guidelines to establish appropriate fees for authorized services supplied by Department of Defense organizations when such services provide special benefits to an identifiable recipient beyond those that accrue to the general public. DATES: *Effective Date:* This rule is effective May 1, 2008. FOR FURTHER INFORMATION CONTACT: Ms. Elaine Carpenter-Schmied, 703-697-0859. SUPPLEMENTARY INFORMATION: On January 26, 2006 (71 FR 4332), the Department of Defense published a proposed rule on user charges with a comment period ending May 11, 2006. Comments included updating sited directives, spelling out acronyms, and inserting punctuation. All relevant comments were accepted. However, the revision did not include a schedule of fees and rates because DoD Components were responsible for computing user fees. With the exclusion of the fee and rate schedule proposed rule 32 CFR Part 204 no longer had an impact on the public. Upon further review and discussions between White House Services and the Government Accountability Office, it was determined fees should be based on full cost or market price and the rule should specify the principles used to compute these values. The revision was completed in October 2007. Executive Order 12866, “Regulatory Planning and Review” It has been determined that 32 CFR Part 204 is a significant regulatory action. The rule has an annual effect to the economy of over $100 million. Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4) It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any 1 year. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601) It has been certified that 32 CFR part 204 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. The rule being promulgated provides guidelines to establish appropriate fees for authorized services supplied by Department of Defense organizations when such services provide special benefits to an identifiable recipient beyond those that accrue to the general public. Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35) It has been certified that 32 CFR part 204 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. Executive Order 13132, “Federalism” It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1)The States;

(2)The relationship between the National Government and the States; or

(3)The distribution of power and responsibilities among the various levels of government. List of Subjects in 32 CFR Part 204 Accounting, Armed forces, Government property. Accordingly, 32 CFR part 204 is revised to read as follows: PART 204—USER FEES Sec. 204.1 Purpose. 204.2 Applicability. 204.3 Policy and procedures. 204.4 Responsibilities. 204.5 Fees. 204.6 Collections. 204.7 Legislative proposals. 204.8 Benefits for which no fee shall be assessed. 204.9 Schedule of fees and rates. Authority: 31 U.S.C. 9701. § 204.1 Purpose. This part implements the DoD program under Title 31, United States Code, section 9701 and OMB Circular No. A-25, “User Charges,” to establish appropriate fees for authorized services supplied by DoD organizations. § 204.2 Applicability. This part applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, and the Defense Agencies (hereafter referred to collectively as “DoD Components”). None of the provisions in this part should be construed as giving authority for the sale or lease of property, or the rendering of special services. Actions to convey such special benefits must be authorized by separate authority. This user fee policy is applicable except when other statutes or directives specifically direct other practices or procedures. § 204.3 Policy and procedures.

(a)*General.* It is DoD policy not to compete unfairly with available commercial facilities in providing special services or in the sale or lease of property to private parties and agencies outside the Federal Government. However, when a service (or privilege) provides special benefits to an identifiable recipient, beyond those that accrue to the general public, a fee shall be imposed to recover the full cost to the Federal Government for providing the special benefit (or the market price) except as otherwise approved by the Under Secretary of Defense (Comptroller) (USD(C)) and authorized by the Director of OMB. A special benefit will be considered to accrue, and a user fee shall be imposed, when a Government service:

(1)Enables the beneficiary to obtain more immediate or substantial gain or values (which may or may not be measurable in monetary terms) than those which accrue to the general public ( *e.g.* , receiving a patent, insurance, or guarantee provision, or a license to carry on a specific activity or business or various kinds of public land use); or

(2)Provides business stability or contributes to public confidence in the business activity of the beneficiary ( *e.g.* , insuring deposits in commercial banks), or

(3)Is performed at the request of or for the convenience of the recipient, and is beyond the services regularly received by other members of the same industry or group or by the general public ( *e.g.* , receiving a passport, visa, airman's certificate, or a Custom's inspection after regular duty hours).

(b)*Costing.*

(1)Except as provided in § 204.3(c) and § 204.8, a user fee shall be imposed to recover the full cost to the Federal Government of providing the service, resource, or good when the Government is acting in its capacity as sovereign.

(2)User fees shall be based on market prices (as defined in § 204.5(a)(4)) when the Government is not acting in its capacity as sovereign and is leasing or selling goods or resources, or is providing a service ( *e.g.* , leasing space in federally owned buildings). Under these business-type conditions, user fees need not be limited to the recovery of full cost and may yield net revenues.

(3)User fees will be collected in advance of, or simultaneously with, the rendering of services unless appropriations and authority are provided in advance to allow reimbursable services.

(4)Whenever possible, fees should be set as rates rather than fixed dollar amounts in order to adjust for changes in costs to the Government or changes in market prices of the good, resource, or service provided.

(c)*Exclusions.*

(1)The provisions of this part do not apply when other statutes or DoD issuances require different practices or procedures, such as for:

(i)Morale, welfare, and recreation services to military personnel and civilian employees of the Department of Defense and other services provided according to § 204.8.

(ii)Sale or disposal of surplus property under approved programs (Chapter 5 of DoD 7000.14-R.) 1 1 Copies of unclassified DoD issuances may be obtained at *http://www.dtic.mil/whs/directives/* .

(iii)Services furnished the general public relating to, or in furtherance of, the Armed Forces recruiting program.

(iv)Services furnished to representatives of the public information media in the interest of public understanding of the Armed Forces.

(v)Armed Forces participation in public events. Fees for such participation are governed by the provisions of DoD Instruction 5410.19.

(vi)Records made available to the public, under the Freedom of Information Act, pursuant to 32 CFR part 285. Fees for such record searches and copies of records are governed by 32 CFR part 286.

(vii)Services furnished to non-Federal audio-visual media. Fees for such services are governed by the provisions of DoD Instruction 5410.15.

(viii)Government-developed computer programs released to non-Federal customers. Fees for software packages are governed by DoD Instruction 7930.2.

(ix)Pricing of performance by DoD Working Capital Fund activities shall be according to Volume 11B of DoD 7000.14-R.

(x)Foreign Military Sales of Defense articles and services shall be according to Volume 15 of DoD 7000.14-R.

(xi)Records made available to Privacy Act requesters shall be according to 32 CFR part 310.

(2)User fees may be waived by the Head of a DoD Component when:

(i)Furnishing of their service without fee is an appropriate courtesy to a foreign government or international organization, or comparable fees are set on a reciprocal basis with a foreign country.

(ii)The Director of the OMB has approved a request for an exception. Such exceptions may be recommended when:

(A)The cost of collecting the fees would represent an unduly large part of the receipts from the activity; or

(B)Any other conditions exists that, in the opinion of the Head of the DoD Component or his designee, justifies the exception. § 204.4 Responsibilities.

(a)The USD(C) shall develop and monitor policies governing user fees.

(b)The Heads of the DoD Components, or designees, shall:

(1)Identify each service or activity that may properly be the subject of a user fee under this part.

(2)Determine the extent of the special benefit provided.

(3)Apply the principles specified in § 204.5(a) in determining full cost or market price.

(4)Review the user fees biennially, to include:

(i)Assurance that existing fees are adjusted to reflect unanticipated changes in costs or market values; and

(ii)A review of all other programs to determine whether fees should be assessed for Government services or the user of Government goods or services. DoD Components should discuss the results of the biennial review of user fees and any resultant proposals in the Chief Financial Officers Annual Report required by the Chief Financial Officers Act of 1990.

(5)Initiate exception actions outlined in § 204.3(c)(2). All such actions shall be coordinated with the USD(C) prior to forwarding to the OMB.

(i)Exceptions granted under § 204.3(c)(2)(i) shall be renewed every 4 years to ensure conditions warrant their continuation.

(ii)Exceptions granted under § 204.3(c)(2)(ii) shall be resubmitted for approval to the OMB every 4 years when conditions warrant their continuation.

(6)Maintain readily accessible records of:

(i)The services or activities covered by this part.

(ii)The extent of special services provided.

(iii)The exceptions to the general policy of this part.

(iv)The information used to establish fees and the specific methods used in their determination.

(v)The collections from each user fee imposed.

(7)Maintain adequate records of the information used to establish fees and provide them upon request to OMB for the evaluation of the schedules and provide data on user fees to OMB according to the requirements in Circular No. A-11.

(8)Develop legislative proposals as outlined in § 204.7 when there are statutory prohibitions or limitations on the assessment of user fees. § 204.5 Fees.

(a)*General* .

(1)All fees shall be based on full cost to the U.S. Government or market price, whichever applies.

(2)“Full cost” includes all direct and indirect costs associated with providing a good, resource, or service. These costs are outlined in Volume 11A, Chapter 1, paragraph 010203 of DoD 7000.14-R.

(3)Full cost shall be determined or estimated from the best available records, and new cost accounting systems shall not be established solely for this purpose.

(4)“Market price” means the price for a good, resource, or service that is based on competition in open markets, and creates neither a shortage nor a surplus of the good, resource, or service.

(i)When a substantial competitive demand exists for a good, resource, or service, its market price will be determined using commercial practices, for example:

(A)By competitive bidding; or

(B)By reference to prevailing prices in competitive markets for goods, resources, or services that are the same or similar to those provided by the Government ( *e.g.* , campsites or grazing lands in the general vicinity of private ones) with adjustments as appropriate that reflect demand, level of service, and quality of the good or service.

(ii)In the absence of substantial competitive demand, market price will be determined by taking into account the prevailing prices for goods, resources, or services that are the same or substantially similar to those provided by the Government, and then adjusting the supply made available and/or price of the good, resource, or service so that there will be neither a shortage nor a surplus ( *e.g.* , campsites in remote areas).

(5)Fees established in advance of performance shall be based on the estimated cost of performance. Projected amounts shall be reviewed biennially or whenever significant changes in cost or value occur.

(6)Management controls (see DoD Instruction 5010.40) must be established to ensure fees are developed and adjusted, using current, accurate, and complete data, to provide reimbursement conforming to statutory requirements. These controls also must ensure compliance with cash management and debt collection policies according to Volume 5 of DoD 7000.14-R.

(b)*Information resources* . The fees for services provided by data processing activities shall be determined by using the costs accumulated pursuant to requirements in OMB Circular A-130, “Management of Federal Information Resources.”

(c)User fees for recurring services shall be established in advance, when feasible. The benefit of charging user fees must outweigh the cost of collecting the fees charged.

(d)*Lease or sale of property* . Fees for lease or sale of property shall be based on the following:

(1)*Leases of military equipment or real estate* .

(i)In cases involving the lease or rental of military equipment, when there is no commercial counterpart, the fee will be based on the procedures provided in Volume 11A, Chapter 1, paragraph 010203.I of DoD 7000.14-R. The current interest rate in OMB Circular A-94 will be used in the computation of interest on investment in assets. In determining the value, consideration may be given to the responsibility of the lessee to assume the risk of loss or damage to the property and to hold the government harmless against claims or liabilities by the lessee or third parties.

(ii)In cases involving real estate outgrants, the consideration for a lease shall be determined by appraisal of fair market rental value according to 10 U.S.C. 2667.

(2)*Sale of property* . When there is legal authority to sell property to the public, the selling price of the property and related accessorial and administrative costs shall be computed according to Volume 11A, Chapter 1 of DoD 7000.14-R. § 204.6 Collections.

(a)Collections of fees will be made in advance or simultaneously with the rendering of service unless appropriations and authority allow otherwise. The policies in this part, Volume 5 of DoD 7000.14-R, and DoD Instruction 5010.40, shall be used in accounting, controlling, and managing cash and debt collections.

(b)Unless a statute provides otherwise, user fee collections will be credited to the general fund of the Treasury as miscellaneous receipts, as required by 31 U.S.C. 3302. § 204.7 Legislative proposals.

(a)Legislative proposals that allow the DoD Component to retain collections may be appropriate when a fee is levied in order to finance a service intended to be provided on a substantially self-sustaining basis and thus is dependent upon adequate collections.

(1)The authority to use fees credited to an appropriation is generally subject to limits set in annual appropriations language. However, it may be appropriate to request exemption from annual appropriations control, if a provision of the service is dependent on demand that is irregular or unpredictable ( *e.g.* , a fee to reimburse an agency for the cost of overtime pay of inspectors for services performed after regular duty hours).

(2)Legislative proposals that permit fees to be credited to accounts shall be consistent with the full-cost recovery guidelines contained in this part. Any fees in excess of full cost recovery and any increase in fees to recover the portion of retirement costs which recoups all (funded or unfunded) accrual costs not covered by employee contributions are to be credited to the general fund of the Treasury as miscellaneous receipts.

(b)Where the retention of the collection is appropriate, the DoD Components(s) concerned may submit legislative proposals under applicable legislative procedures included in OMB Circular A-19. These procedures may be obtained from the Office of Legislative Counsel, General Counsel, 1600 Defense Pentagon, Washington, DC 20301-1600. Proposals to remove user fee restrictions or retain collections shall:

(1)Define in general terms the services for which fees will be assessed and the pricing mechanism that will be used.

(2)Specify whether fees will be collected in advance of, or simultaneously with, the provision of service unless appropriations and authority are provided in advance to allow reimbursable services.

(3)Specify where collections will be credited. Legislative proposals should not normally specify precise fees. The user fee schedule should be set by regulation to allow for the administrative updating of fees to reflect changing costs and market values. § 204.8 Benefits for which no fee shall be assessed.

(a)Documents and information requested by members of the Armed Forces is required by such personnel in their capacity as Service members.

(b)Documents and information requested by members of the Armed Forces who are in a casualty status, or requested by their next of kin or legal representative.

(c)The provisions of the address of record of a member or former member of the Armed Forces when the address is readily available through a directory (locator) service, and when the address is requested by a member of the Armed Forces or by a relative or a legal representative of a member of the Armed Forces, or when the address of record is requested by any source for the purpose of paying monies or forwarding property to a member or former member of the Armed Forces.

(d)Services requested by, or on behalf of, a member or former member of the Armed Forces and civilian personnel of the Department of Defense (where applicable) or, if deceased, his or her next of kin or legal representative that pertain to the provision of:

(1)Information required to obtain financial benefits regardless of the terms of separation from the Service.

(2)Document showing membership and military record in the Armed Forces if discharge or release was under honorable conditions, except as shown in paragraphs (d)(1) and (d)(4) of this section.

(3)Information relating to a decoration or award or required for memoralization purposes.

(4)Information relating to the review or change in type of discharge or correction of records.

(5)Personal documents, such as birth certificates, when such documents are required to be furnished by the member.

(6)Services furnished free according to statutes or Executive Orders.

(7)Information from or copies of medical and dental records or x-ray films of patients or former patients of military medical or dental facilities, when such information is required for further medical or dental care, and requests for such data are submitted by an accredited medical facility, physician, or dentist, or requested by the patient, his or her next of kin, or legal representative. Other requests subject to the Privacy Act shall be according to 32 CFR part 310 (see § 204.3(c)(1)(xi) of this part).

(8)Services requested by, and furnished to, a member of Congress for official use.

(9)Services requested by state, territorial, county, or municipal government, or an agency thereof, that is performing a function related to or furthering a DoD objective.

(10)Services requested by a court, when such services will serve as a substitute for personal court appearance of a military or civilian employee of the Department of Defense.

(11)Services requested by a nonprofit organization that is performing a function related to or furthering an objective of the Federal Government or is in the interest of public health and welfare, including education.

(12)Services requested by donors in connection with the conveyance or transfer of a gift to the Department of Defense.

(13)Occasional and incidental services (including requests from residents of foreign countries), not requested often, when it is determined administratively that a fee would be inappropriate for the occasional and incidental services rendered.

(14)Administrative services offered by reference or reading rooms to inspect public records, excluding copies of records or documents furnished.

(15)Services rendered in response to requests for classification review of DoD classified records, submitted under Executive Order 12065, “National Security Information,” and implemented by DoD 5200.1-R. Such services consist of the work performed in conducting the classification review or in granting and completing an appeal from a denial of declassification following such review.

(16)Services of a humanitarian nature performed in such emergency situations as life-saving transportation for non-Armed Forces patients, search and rescue operations, and airlift of personnel and supplies to a disaster site. This does not mean that inter- and intra-governmental agreements to recover all or part of costs shall not be negotiated. Rather, it means the recipients or beneficiary will not be assessed a “user fee”. § 204.9 Schedule of fees and rates.

(a)*Schedule of fees and rates* .

(1)This schedule applies to authorized services related to copying, certifying, and searching records rendered to the public by DoD Components, except when those services are excluded or excepted from charges under § 204.3(c) or the “Benefits for Which No Fee Shall Be Assessed” included in Volume 11A, Chapter 4, Appendix 1 of DoD 7000.14-R. All other fees will be based on full cost or market price. Fee Schedule Service Rate

(i)Copies (Standard size paper up to 8 1/2 x 14) $0.13 per page.

(ii)Search and Review

(A)Managerial $13.15 per 1/4 hour; $52.60 per hour.

(B)Professional $9.05 per 1/4 hour; $36.20 per hour.

(C)Clerical $5.20 per 1/4 hour; $20.80 per hour.

(iii)Other

(A)Microfiche $0.08 per page.

(B)Computer and magnetic tapes $25.00 each.

(C)Computer diskettes $1.25 each.

(D)Other services (computer time, special mailing) Actual Cost.

(2)Fees will not be charged if the total amount to process your request is $30.00 or less.

(b)Criteria for estimating cost of computerized records:

(1)Costs for processing a data request will be calculated using the full cost method as referenced in § 204.5.

(2)Itemized listing of operations required to process the job will be maintained ( *i.e.* , time for central processing unit, input/output remote terminal, storage, plotters, printing, tape/disk mounting, etc.) with associated costs.

(3)Mailing costs for services (DHL, Express Mail, etc.) when request specifically specifies a means more expensive than first class mail. Dated: April 24, 2008. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. E8-9377 Filed 4-30-08; 8:45 am] BILLING CODE 5001-06-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2007-0532-200810, FRL-8560-2] Approval and Promulgation of Implementation Plans; Alabama Prevention of Significant Deterioration and Nonattainment New Source Review AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is taking final action to approve revisions to the Alabama State Implementation Plan

(SIP)submitted by the State of Alabama on June 16, 2006. The SIP revisions modify Alabama's Prevention of Significant Deterioration (PSD regulations in the Alabama SIP to address changes to the federal New Source Review

(NSR)regulations, which were promulgated by EPA on December 31, 2002, and reconsidered with minor changes on November 7, 2003 (commonly referred to as the “2002 NSR Reform Rules”). EPA proposed approval of these revisions on January 24, 2008; no comments were received on that proposal. The revisions include provisions for baseline emissions calculations, an actual-to-projected-actual methodology for calculating emissions changes, options for plantwide applicability limits, and recordkeeping and reporting requirements. DATES: *Effective Date:* This rule will be effective June 2, 2008. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2007-0532. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. FOR FURTHER INFORMATION CONTACT: For information regarding the Alabama State Implementation Plan, contact Ms. Stacy Harder, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is

(404)562-9042. Ms. Harder can also be reached via electronic mail at *harder.stacy@epa.gov.* For information regarding New Source Review, contact Ms. Gracy R. Danois, Air Permits Section, at the same address above. The telephone number is

(404)562-9119. Ms. Danois can also be reached via electronic mail at *danois.gracy@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. What Action Is EPA Taking? II. What Is the Background for This Action? III. Final Action IV. Statutory and Executive Order Reviews I. What Action Is EPA Taking? EPA is taking final action to approve revisions to the Alabama SIP, which includes changes to Alabama's NSR program. On June 16, 2006, the State of Alabama, through the Alabama Department of Environmental Management

(ADEM)submitted revisions to the Alabama SIP. Specifically, the SIP revisions include changes to ADEM Administrative Code

(AAC)Division 3 (Air Division), Chapter 14, entitled “Air Permits.” ADEM submitted these revisions in response to EPA's December 31, 2002, revisions to the federal NSR program. EPA is now approving these SIP revisions with the exception of the requirements found in Rule 335-3-14-.04(2)(w)1, the portion of the definition of “significant” that establishes a significance threshold of 100 tons for all NSR regulated pollutants for which there is not a listed significant amount. On December 3, 2007, Alabama requested this portion of the definition not be approved in to the SIP. Notably, the June 16, 2006, submittal also addressed the Clean Air Interstate Rule which EPA has already addressed in a separate action (October 1, 2007, 72 FR 55659). On January 24, 2008 (73 FR 4133), EPA published a notice of proposed rulemaking

(NPR)in the **Federal Register** , proposing to approve the Alabama SIP revisions regarding its NSR program. The January 24, 2008, NPR provides additional information about the proposed Alabama SIP revisions and the rationale for this final action. The public comment period for the proposed action ended on February 25, 2008. No comments were received on EPA's proposed action. EPA is now taking final action to approve the SIP revisions submitted by ADEM on June 16, 2006. II. What Is the Background for This Action? On December 31, 2002 (67 FR 80186), EPA published final rule changes to 40 Code of Federal Regulations

(CFR)parts 51 and 52, regarding the Clean Air Act (CAA), PSD and NNSR programs. On November 7, 2003 (68 FR 63021), EPA published a notice of final action on its reconsideration of the 2002 rules. On June 13, 2007 (72 FR 32526), EPA took final action to revise the 2002 NSR Reform Rules to exclude the clean units and Pollution Control Project

(PCP)provisions that were vacated by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) on June 24, 2005. The purpose of this action regarding the Alabama SIP is to approve the SIP submittal from the State of Alabama incorporating rule changes consistent with EPA's 2002 NSR Reform Rules. The June 24, 2005, DC Circuit Court decision also involved a remand of the recordkeeping provisions of the 2002 NSR Reform Rules. On December 14, 2007, EPA issued a final rulemaking in response to the DC Circuit's remand establishing that “reasonable possibility” applies where source emissions equal or exceed 50% of the CAA NSR significance levels for any pollutant. The rule was published in the **Federal Register** on December 21, 2007 (72 FR 72607). For further information, see, *http://www.epa.gov/nsr.* The “reasonable possibility” standard identifies, for sources and reviewing authorities, the circumstances under which a major stationary source undergoing a modification that does not trigger major NSR must keep records. Alabama's SIP revisions are approvable at this time because the Alabama rules are substantially the same as the current federal rules and EPA's interpretation of the reasonable possibility standard did not result in any actual changes to the corresponding federal rule. As is discussed in greater detail in the NPR, EPA reviewed the SIP revisions and determined that they were at least as stringent as the federal NSR program. Therefore, Alabama's revisions are consistent with the federal NSR regulations published December 31, 2002 (67 FR 80186) and November 7, 2003 (68 FR 63021), with the one exception noted earlier regarding AAC Rule 335-3-14-.04(2)(w)1 which is no longer a part of the current SIP submittal. As a result, the SIP revisions are approvable pursuant to the CAA. The January 24, 2008, NPR and the docket for this action provide more details about the SIP revisions being approved and the rationale for EPA's final action. For additional information on EPA's 2002 NSR Reform Rules, see 67 FR 80186 (December 31, 2002), and *http://www.epa.gov/nsr.* III. Final Action EPA is taking final action to approve changes to Alabama's Rule 335-3-14-.04, with the exception of 335-3-14.04(2)(w)1, as submitted by ADEM on June 16, 2006, as revisions to the Alabama SIP. IV. Statutory and Executive Order Reviews Under Executive Order 12866 ( *58 FR 51735,* October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” ( *66 FR 28355,* May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This final rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 ( *59 FR 22951,* November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 ( *64 FR 43255,* August 10, 1999). This action merely approves state and local rules implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” ( *62 FR 19885,* April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.,* as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 30, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See, section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: April 17, 2008. Russell L. Wright, Jr., Acting Regional Administrator, Region 4. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart B—Alabama 2. Section 52.50(c) is amended by revising the entry for “Section 335-3-14.04” to read as follows: § 52.50 Identification of plan.

(c)* * * State citation Title/subject State effective date EPA approval date Explanation * * * * * * * Chapter 335-3-14 Air Permits * * * * * * * Section 335-3-14-.04 Air Permits Authorizing Construction in Clean Air Areas (Prevention of Significant Deterioration (PSD)) 07/11/2006 05/01/2008 [Insert citation of publication] EPA is not approving Section 335-3-14.04(2)(w)1. * * * * * * * [FR Doc. E8-9481 Filed 4-30-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-HQ-OAR-2008-0314; FRL-8559-9] Extension of Deadline for Action on Section 126 Petition From Warrick County, IN, and the Town of Newburgh, IN AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The EPA is extending by 6 months the deadline for EPA to take action on a petition submitted by Warrick County, Indiana and the Town of Newburgh, Indiana under section 126 of the Clean Air Act (CAA). The petition requests that EPA make a finding that a power plant (Cash Creek) proposed to be built in Henderson County, Kentucky will emit air pollutants that will significantly contribute to Warrick County and Newburgh, Indiana's nonattainment with the national ambient air quality standards (NAAQS) for ozone and fine particulate matter, or will significantly interfere with Warrick County and Newburgh, Indiana's ability to maintain its attainment of those standards. The petition requests that EPA establish emission limitations for the proposed power plant as a result of those findings. Under the CAA, EPA is authorized to grant a time extension for responding to the petition if EPA determines that the extension is necessary, among other things, to meet the purposes of the CAA's rulemaking requirements. By this action, EPA is making that determination. DATES: This action is effective on April 24, 2008. ADDRESSES: EPA has established a docket for this rulemaking under Docket ID number EPA-HQ-OAR-2008-0314. All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the EPA Docket Center EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

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

(202)566-1742. FOR FURTHER INFORMATION CONTACT: For general information and policy questions, contact Carla Oldham, Air Quality Planning Division, Office of Air Quality Planning and Standards, mail code C539-04, Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: 919-541-3347; fax number: 919-541-0824; e-mail address: *oldham.carla@epa.gov* . For legal questions contact Steven Silverman, U.S. EPA, Office of General Counsel, Mail Code 2344A, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, telephone

(202)564-5523, e-mail at *silverman.steven@epa.gov* . SUPPLEMENTARY INFORMATION: I. Background This is a procedural action to extend the deadline for EPA to respond to a petition from Warrick County, Indiana and the Town of Newburgh, Indiana filed under CAA section 126. EPA received the section 126 petition on March 6, 2008. The petition requests that EPA make a finding that the Cash Creek power plant proposed to be built in Henderson County, Kentucky will emit air pollutants that will significantly contribute to Warrick County and Newburgh, Indiana's nonattainment with the NAAQS for ozone and fine particulate matter or will significantly interfere with Warrick County and Newburgh, Indiana's ability to maintain its attainment of those standards. The petition requests that EPA establish emission limitations for the proposed power plant as a result of those findings. Section 126(b) authorizes States or political subdivisions to petition EPA to find that a major source or group of stationary sources in upwind states emits or would emit any air pollutant in violation of the prohibition of section 110(a)(2)(D), by contributing significantly to nonattainment or maintenance problems in downwind states. If EPA makes such a finding, EPA is authorized to establish Federal emissions limits for the sources which so contribute. Under section 126(b), EPA must make the finding requested in the petition, or must deny the petition, within 60 days of its receipt. Under section 126(c), any existing sources for which EPA makes the requested finding must cease operations within 3 months of the finding, except that those sources may continue to operate if they comply with emission limitations and compliance schedules that EPA may provide to bring about compliance with the applicable requirements. Section 126(b) further provides that EPA must allow a public hearing for the petition. EPA(s action under section 126 is also subject to the procedural requirements of CAA section 307(d). *See* section 307(d)(1)(N). One of these requirements is notice-and-comment rulemaking, under section 307(d)(3). In addition, section 307(d)(10) provides for a time extension, under certain circumstances, for rulemaking subject to section 307(d). Specifically, section 307(d)(10) provides: Each statutory deadline for promulgation of rules to which this subsection applies which requires promulgation less than six months after date of proposal may be extended to not more than six months after date of proposal by the Administrator upon a determination that such extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of the subsection. Section 307(d)(10) applies to section 126 rulemakings because the 60-day time limit under section 126(b) necessarily limits the period after proposal to less than 6 months. II. Final Action A. Rule In accordance with section 307(d)(10), EPA is determining that the 60-day period afforded by section 126(b) for responding to the petition from Warrick County, Indiana and the Town of Newburgh, Indiana is not adequate to allow the public and the Agency adequate opportunity to carry out the purposes of section 307(d). Specifically, the 60-day period is insufficient for EPA to develop an adequate proposal on whether the source identified in the section 126 petition will contribute significantly to nonattainment or maintenance problems in Warrick County or the Town of Newburgh, and, if so, to allow adequate time for public input into the promulgation of any controls to address those significant contributions. EPA is in the process of determining what would be an appropriate schedule for action on the section 126 petition from Warrick County, Indiana and the Town of Newburgh, Indiana. This schedule must afford EPA adequate time to prepare a proposal that clearly elucidates the issues to facilitate public comment and must provide adequate time for the public to comment prior to issuing the final rule. As a result of this extension, the deadline for EPA to act on the petition is November 5, 2008. B. Notice-and-Comment Under the Administrative Procedures Act

(APA)This document is a final agency action, but may not be subject to the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The EPA believes that because of the limited time provided to make a determination that the deadline for action on the section 126 petition should be extended, Congress may not have intended such a determination to be subject to notice-and-comment rulemaking. However, to the extent that this determination otherwise would require notice and opportunity for public comment, there is good cause within the meaning of 5 U.S.C. 553(b)(3)(B) not to apply those requirements here. Providing for notice-and-comment would be impracticable because of the limited time provided for making this determination, and would be contrary to the public interest because it would divert Agency resources from the substantive review of the section 126 petition. C. Effective Date Under the APA This action is effective on April 24, 2008. Under the APA, 5 U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days after the date of publication in the **Federal Register** if the agency has good cause to mandate an earlier effective date. This action—a deadline extension—must take effect immediately because its purpose is to extend by 6 months the deadline for action on the petition. It is important for this deadline extension action to be effective before the original 60-day period for action elapses. As discussed above, EPA intends to use the 6-month extension period to develop a proposal on the petition and provide time for public comment before issuing the final rule. These reasons support an immediate effective date. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* Burden is defined at 5 CFR 1320(b). This action does not create new requirements and is not subject to the Paperwork Reduction Act. C. Regulatory Flexibility Act This final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the APA or any other statute. This rule is not subject to notice-and-comment requirements under the APA or any other statute because although the rule is subject to the APA, the Agency has invoked the “good cause” exemption under 5 U.S.C. 553(b), therefore it is not subject to the notice-and-comment requirement. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, 2 U.S.C. 1532, EPA generally must prepare a written statement, including a cost-benefit analysis, for any proposed or final rules with “Federal mandates” that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. The rule imposes no enforceable duty on any State, local or tribal governments or the private sector. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. This rule simply extends the deadline for EPA to take action on a petition. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government, as specified in Executive Order 13132. It imposes no regulatory burdens. Thus, the requirements of section 6 of the Executive Order do not apply to this action. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications. This rule does not have tribal implications, as specified in Executive Order 13175. Thus Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order had the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. This rule simply extends the deadline for EPA to take action on a petition and does not impose any regulatory requirements. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, “Actions That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355; May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. This action does not establish any new regulatory requirements. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress through OMB, explanations when the Agency decides not to use available and applicably voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898—Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations in the United States. The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This rule simply extends the deadline for EPA to take action on a petition and does not impose any regulatory requirements. K. Congressional Review Act The Congressional Review Act (CRA), 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of April 24, 2008. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). L. Judicial Review Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit

(i)when the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or

(ii)when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” Under CAA section 307(b)(1), a petition to review this action must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days of May 1, 2008. List of Subjects in 40 CFR Part 52 Environmental protection, Administrative practice and procedure, Air pollution control, Electric utilities, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. Dated: April 24, 2008. Stephen L. Johnson, Administrator. [FR Doc. E8-9485 Filed 4-30-08; 8:45 am] BILLING CODE 6560-50-P OFFICE OF MANAGEMENT AND BUDGET Office of Federal Procurement Policy 48 CFR Part 9904 Cost Accounting Standards Board; Accounting for the Costs of Employee Stock Ownership Plans (ESOPs) Sponsored by Government Contractors AGENCY: Cost Accounting Standards Board, Office of Federal Procurement Policy, OMB. ACTION: Final rule. SUMMARY: The Cost Accounting Standards Board (the Board), Office of Federal Procurement Policy, has adopted a final rule to amend Cost Accounting Standard

(CAS)412, “Cost Accounting Standard for composition and measurement of pension cost,” and CAS 415, “Accounting for the cost of deferred compensation.” These amendments address issues concerning the recognition of the costs of Employee Stock Ownership Plans (ESOPs) under Government cost-based contracts and subcontracts. These amendments provide criteria for measuring the costs of ESOPs and their assignment to cost accounting periods. The allocation of a contractor's assigned ESOP costs to contracts and subcontracts is addressed in other Standards. The amendments also specify that accounting for the costs of ESOPs will be covered by the provisions of CAS 415, “Accounting for the cost of deferred compensation,” and not by any other Standard. This rulemaking is authorized pursuant to Section 26 of the Office of Federal Procurement Policy

(OFPP)Act. DATES: *Effective Date:* June 2, 2008. FOR FURTHER INFORMATION CONTACT: Laura Auletta, Manager, CAS Board, 725 17th Street, NW., Room 9013, Washington, DC 20503 (telephone: 202-395-3256). SUPPLEMENTARY INFORMATION: A. Regulatory Process The Board's rules, regulations and standards are codified at 48 CFR chapter 99. The OFPP Act, 41 U.S.C. 422(g)(1), requires the Board, prior to the establishment of any new or revised Cost Accounting Standard, to complete a prescribed rulemaking process. The process generally consists of the following four steps: 1. Consult with interested persons concerning the advantages, disadvantages and improvements anticipated in the pricing and administration of government contracts as a result of the adoption of a proposed Standard ( *e.g.* , promulgation of a Staff Discussion Paper.) 2. Promulgate an Advance Notice of Proposed Rulemaking (ANPRM). 3. Promulgate a Notice of Proposed Rulemaking (NPRM). 4. Promulgate a Final Rule. This final rule is issued by the Board in accordance with the requirements of 41 U.S.C. 422(g)(1), and, is step four of the four-step process. B. Background and Summary The CAS and Federal Acquisition Regulation

(FAR)have dealt with issues associated with ESOPs since ESOPs became popular in the late 1970s as a vehicle for providing incentive compensation to employees, as well as a means for corporations to finance their capital requirements. The popularity of ESOPs was greatly enhanced by their inclusion in the Employee Retirement Income Security Act of 1974 (ERISA) and by several beneficial changes to the Federal Income Tax Code in that same time period. At first, the issues that arose were regarded as allowability matters that were to be treated in the FAR (or one of its predecessors, the Defense Acquisition Regulation or Armed Services Procurement Regulation). The views of the Board were sought primarily on an advisory basis. However, after issuance of the decision of the Armed Services Board of Contract Appeals (ASBCA) in the “Parsons case,” Ralph Parsons Co., ASBCA Nos. 37391, 37946, and 37947, December 20, 1990, 91-1 BCA 23648, reconsideration denied 91-2 BCA 23751, various government commenters suggested to the Board that ESOP cost measurement and period assignment matters warranted placement on the Board's agenda. These suggestions were amplified in light of the decision of the ASBCA in Ball Corp., ASBCA No. 49118, April 3, 2000, 00-1 BCA 30864. This position has been reiterated both by the Department of Defense and by some contractors. The Board first considered issuing an Interpretation of its existing Standards, but then decided that additional research was needed. Various approaches for dealing with ESOP accounting issues were considered by the Board and other interested parties in the late 1990s. On September 15, 2000, the Board issued a Staff Discussion Paper

(SDP)on this topic (65 FR 56008, Sept. 15, 2000). In response to the comments submitted on the SDP, on August 20, 2003 the Board issued an ANPRM (68 FR 50111) for the purpose of amending CAS 412 and 415 to address issues concerning the recognition of the costs of Employee Stock Ownership Plans (ESOPs) under Government cost-based contacts and subcontracts. After considering the public comments submitted in response to the ANPRM, the Board published an NPRM on July 22, 2005 with request for comment (70 FR 42293). The Board received three sets of public comments in response to the NPRM. This final rule adopts the language in the NPRM, with minor changes to the transition provision. The final rule directs that costs of all ESOPs, regardless of type, be accounted for in accordance with CAS 415, and provides criteria in CAS 415 for measuring the costs of ESOPs and assigning those costs to cost accounting periods. C. Public Comments A summary of the comments received in response to the NPRM and the Board response are as follows: 1. Support Issuance of the Proposed Rule *Comment:* Two commenters supported the issuance of the final rule. One commenter noted that the changes made to the NPRM in response to its comments on the ANRPM very effectively addressed its concerns. The second commenter noted that the NPRM indicated that the drafters diligently reviewed how ESOPs operated and reviewed carefully why Congress has consistently supported the creation of employer ownership through ESOPs for over thirty years. This commenter provided some recommendations for clarification and requested the Board move forward with the rulemaking process. *Response:* The Board thanks the commenters for their responses. 2. Transition Provisions *Comment:* One commenter opined that the proposed transition provisions at 9904.415-63 are overridden by 48 CFR 9904.412-20(b) and most existing ESOPs would not be subject to the revised rules. *Response:* The Board recognizes the commenter's concern and has amended the transition provision in the final rule to specify that all ESOPs, including those considered to be pension ESOPs, are henceforth subject to CAS 415. When the transition provisions are read in conjunction with 412-20(b), the Board believes that following the receipt of a new CAS covered contract or subcontract all ESOPs shall be covered in CAS 415. 3. “Awarded” vs. “Allocated” *Comment:* One commenter opined that the term “awarded” has no meaning in the context of a qualified ESOP plan and requires clarification. *Response:* As stated previously in the NPRM (70 FR 42293, dated July 22, 2005), the Board's objective in amending CAS 412 and 415 is to provide consistent cost accounting practices for the measurement and assignment of costs of ESOPs, regardless of whether or not a particular ESOP is a qualified plan under ERISA and the IRS. Accordingly, the Board believes it need not limit itself to the terms and concepts embodied in ERISA or IRS rules and regulations in defining the cost accounting practices to be used in the measurement and assignment of costs of ESOPs. For the reasons stated in the NPRM (see responses to the ANPRM, which are contained in the NPRM and annotated as Comment 3, “Assignment of Costs Based on Award of Shares” and Comment 5, “Definition of an ESOP”), the Board continues to believe that it is appropriate to impose separate allocation and award criteria in order for an ESOP contribution to be measured and assigned to a particular cost accounting period. The Board also believes it has adequately distinguished between the concepts of allocation and award in both the techniques for application at 9904.415-50(f) and the illustrations at 9904.415-60, and that no further clarification is required. 4. Interest Included in ESOP Contributions *Comment:* One commenter opined that contractors should be required to separately identify the interest component of ESOP costs to promote transparency. *Response:* The Board continues to believe that it is not necessary to impose a separate disclosure requirement regarding interest paid by the ESOP trust out of a contractor's ESOP contributions. The Board's reasoning, as provided in the NPRM (70 FR 42293, dated July 22, 2005), also applies here and is summarized, in relevant part, below. The final rule recognizes the resources used by the contractor to fund the current year's award to employees, whether those shares are purchased by the ESOP in the year of award or made available for allocation by repayment of ESOP debt. In finalizing this rule, the Board believes that it is providing for the measurement of ESOP costs for contract costing purposes in a manner that reflects the CAS objective of consistency in cost accounting practices. For financial accounting purposes, contractors are required to follow generally accepted accounting principles (GAAP). Under GAAP (specifically American Institute of Certified Public Accountants (AICPA) Statement of Position 93-6, paragraphs 6.24 thru 6.27, “Employer's Accounting for Employee Stock Ownership Plans”), companies are required to separately identify the interest and principal of the ESOP financing, and thus the transparency noted by the commenter already exists. Therefore, there is no need for the Board to promulgate a duplicate requirement. The Board further notes that whether interest or other cost components associated with financing a leveraged ESOP are allowable costs is determined under FAR Part 31. The final rule does not, in any manner, preclude the FAR Council from drafting rules that explicitly allow or disallow interest or any other cost component associated with an ESOP. Should the FAR Council decide to explicitly disallow interest or any other cost component associated with an ESOP, CAS 405 already requires that such costs be segregated in the contractor's accounting records. In addition, CAS 405 also requires that such costs be identified and excluded from any billing, claim, or proposal applicable to a Government contract. Therefore, the Board does not believe it is necessary to require separate disclosure of any interest paid by the ESOP trust out of a contractor's ESOP contribution. 5. Clarification of Examples *Comment:* One commenter opined that the following illustrations should be clarified: a. The commenter recommended that 9904.415-60(f) should be revised to read as follows: Contractor F has a non-leveraged ESOP. Under the contractor's plan, employees are awarded 5,000 shares of stock for the year ended December 31, 2007. The market value of the stock as of 12/31/07, as determined on 2/5/08 is $10.00 per share. On February 5, 2008, the 5,000 shares are contributed to the ESOP and allocated to the individual employee accounts. *Response:* The Board does not believe a change to the illustration in the NPRM is warranted. The recommended revision would alter the content of the example and render it inconsistent with the language in the revised standard. The illustration in the NPRM is intended to demonstrate that the valuation date of the stock is the date the contribution is made in accordance with CAS 415-50(f)(1), not the date that employees are awarded the stock under the contractor's plan. As stated in the ANPRM, the Board believes that the “contribution” approach to ESOP cost accounting is the best measure of a contractor's cost to provide the ESOP benefit awarded to an employee. Therefore, the value of the shares transferred to an ESOP is established as of the contribution date (the date when the title to the shares is transferred to the trust), not the date when the shares are awarded to the employee. As such, the language in the NPRM remains unchanged. b. The commenter recommended that 9904.415-60(g) should be revised to read as follows: On February 15, 2008, the contractor contributes $780,000 in cash to the ESOP trust

(ESOT)to satisfy the principal and interest payment on the ESOT loan for FY 2007. The contractor's contribution of $780,000 causes 9,000 shares of stock to be allocated in the true ESOP. One thousand (1,000) shares of stock are contributed to a true ESOP on 2/2/05, valued at $60,000 as of 12/31/07. *Response:* The Board does not believe a change to the illustration in the NPRM is warranted. The introduction of the term “true ESOP” would be inappropriate since it is not defined or used in the standard, and the language of the standard clearly distinguishes between the ESOP and the ESOP trust (ESOT). Furthermore, the illustration makes an important distinction between shares released to the ESOT as a result of the cash payment by the contractor, the additional shares contributed to the ESOT, and the total shares actually allocated to individual employee accounts. Thus, the language in the NPRM remains unchanged. c. The commenter recommended that 9904.415-60(h)(1) should be revised to read as follows: Contractor H has a leveraged ESOP. Under the contractor's plan, employees are awarded 8,000 shares of stock for the year ended December 31, 2007. Only 8,000 shares of stock are allocated as of 12/31/07. $100,000 of the total payment of $500,000 made on 1/31/08 was for the FY '08, and 2,000 shares will be allocated as of 12/31/08. *Response:* The Board does not believe a change to the illustration in the NPRM is warranted. The commenter's recommendation would revise the example to state that the 2,000 shares remaining in the ESOT and not awarded for 2007 will be awarded in 2008. The Board does not believe this should be added to the example because it may result in the reader incorrectly assuming that the remaining shares will always be awarded in the following year (in this case, 2008). This assumption cannot be made since there will not necessarily be an obligation to award these shares in 2008. Thus, the language in the NPRM remains unchanged. d. The commenter recommended that 9904.415-60(h)(2) should be revised to read as follows: At December 31, 2008, the employees are awarded 12,000 shares of stock. On January 31, 2009, Contractor H contributes $500,000 in cash to the ESOT to satisfy the principal and interest payment on the ESOT loan for 2008, resulting in the bank releasing 10,000 shares of stock. On February 10, 2009, 12,000 shares are allocated to individual employee accounts satisfying the deferred compensation obligation for 2008. If the contractor claims the contribution or an allowable cost, or claims a tax deduction, for 2007, then the shares released as a result of the contribution must be allocated for the year in which the contribution is allowed or claimed as a corporate tax deduction. In addition to the $500,000 contribution, which resulted in 10,000 shares being allocated as of 12/31/08, an additional 2,000 shares of stock were contributed to a true ESOP on 2/10/09, and allocated as of 12/31/08. *Response:* The Board does not believe a change to the illustration in the NPRM is warranted. As stated in the NPRM (70 FR 42293, dated July 22, 2005), the cost accounting practices specified in CAS 415 are not dependent on tax deductibility of any contribution since two plans with identical contribution requirements should not have different cost accounting treatment solely because of differences in tax deductibility. Therefore, changing the illustration would result in inconsistency with the language in the revised standard, since such a change would base the assignment of ESOP costs for contract costing purposes on ERISA and/or IRS rules that have not been incorporated into the Standard. As such, the language in the NPRM remains unchanged. e. The commenter recommended that 9904.415-60(i) should be revised to read as follows: Contractor I has a leveraged ESOP. Under the contractor's plan, employees are awarded 10,000 shares for FY 2007, which ended December 31, 2007. On February 10, 2008, Contractor I contributes $700,000 in cash to satisfy the principal and interest payment for the ESOP loan for FY 2007. This contribution results in the bank releasing 10,000 shares of stock. On March 1, 2008, the ESOP allocates the 10,000 shares to individual employee accounts satisfying the 2007 obligation. The 10,000 shares of stock are allocated as of 12/31/07. *Response:* The Board does not believe a change to the illustration in the NPRM is warranted. The recommended revision would eliminate the purpose of this illustration, which is intended to address instances where the shares are awarded on one date (in this example, December 31, 2007) but are not allocated to individual employee accounts until a later date (in this case, March 1, 2008). This example is intended to illustrate the assignment of ESOP contributions in accordance with 9904.415-50(f)(2) and the distinction between award and allocation. As such, the language in the NPRM remains unchanged. D. Paperwork Reduction Act The Paperwork Reduction Act, Public Law 96-511, does not apply to this rulemaking, because this rule imposes no paperwork burden on offerors, affected contractors and subcontractors, or members of the public which requires the approval of OMB under 44 U.S.C. 3501, *et seq.* E. Regulatory Flexibility Act, Unfunded Mandates Reform Act, Congressional Review Act, and Executive Orders 12866 and 13132 The Board certifies that this rule will not have a significant effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.,* because small businesses are exempt from the application of the Cost Accounting Standards. For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as well as Executive Orders 12866 and 13132, the final rule will not significantly or uniquely affect small governments, and will not result in increased expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more. The final rule is not a “major rule” under 5 U.S.C. Chapter 8; the rule will not have any of the effects set forth in 5 U.S.C. 804(2). Finally, the rule does not have federalism implications as described in Executive Order 13132. List of Subjects in 48 CFR Part 9904 Accounting, Government procurement. Paul A. Denett, Administrator, Office of Federal Procurement Policy. For the reasons set forth in this preamble, chapter 99 of title 48 of the Code of Federal Regulations is amended as set forth below: PART 9904—COST ACCOUNTING STANDARDS 1. The authority citation for part 9904 continues to read as follows: Authority: Pub. L. 100-679, 102 Stat 4056, 41 U.S.C. 422. 2. Section 9904.412-20 is revised to read as follows: 9904.412-20 Purpose.

(a)The purpose of this Standard 9904.412 is to provide guidance for determining and measuring the components of pension cost. The Standard establishes the basis on which pension costs shall be assigned to cost accounting periods. The provisions of this Cost Accounting Standard should enhance uniformity and consistency in accounting for pension costs and thereby increase the probability that those costs are properly allocated to cost objectives.

(b)This Standard does not cover the cost of Employee Stock Ownership Plans (ESOPs) that meet the definition of a pension plan. Such plans are considered a form of deferred compensation and are covered under 9904.415. 3. Section 9904.415-20 is revised to read as follows: 9904.415-20 Purpose.

(a)The purpose of this Standard 9904.415 is to provide criteria for the measurement of the cost of deferred compensation and the assignment of such cost to cost accounting periods. The application of these criteria should increase the probability that the cost of deferred compensation is allocated to cost objectives in a uniform and consistent manner.

(b)This Standard is applicable to the cost of all deferred compensation except the following which are covered in other Cost Accounting Standards:

(1)The cost for compensated personal absence, and

(2)The cost for pension plans that do not meet the definition of an Employee Stock Ownership Plan (ESOP). 4. Section 9904.415-30 is amended by revising paragraph (a), introductory text, adding paragraphs (a)(2) and (3), and revising paragraph

(b)to read as follows: 9904.415-30 Definitions.

(a)The following are definitions of terms which are prominent in this Standard 9904.415. Other terms defined elsewhere in this Chapter 99 shall have the meanings ascribed to them in those definitions unless paragraph

(b)of this section requires otherwise.

(2)Employee Stock Ownership Plan

(ESOP)means:

(i)An employee benefit plan that is described by the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code

(IRC)of 1986 as a stock bonus plan, or combination stock bonus and money purchase pension plan, designed to invest primarily in employer stock, and

(ii)Any other deferred compensation plan designed to invest primarily in the stock of the contractor's corporation including, but not limited to, plans covered by ERISA.

(3)Fair value means the amount that a seller would reasonably expect to receive in a current arm's length transaction between a willing buyer and a willing seller, other than a forced or liquidation sale.

(b)The following modifications of terms defined elsewhere in this Chapter 99 are applicable to this Standard:

(1)Market value means the current or prevailing price of a stock or other property as indicated by market quotations.

(2)[Reserved] 5. Section 9904.415-40 is revised to read as follows: 9904.415-40 Fundamental requirement.

(a)The cost of deferred compensation shall be assigned to the cost accounting period in which the contractor incurs an obligation to compensate the employee. In the event no obligation is incurred prior to payment, the cost of deferred compensation shall be the amount paid and shall be assigned to the cost accounting period in which the payment is made.

(b)Measurement of deferred compensation costs.

(1)For deferred compensation other than ESOPs, the deferred compensation cost shall be the present value of the future benefits to be paid by the contractor.

(2)For an ESOP, the deferred compensation cost shall be the amount contributed to the ESOP by the contractor.

(c)The cost of each award of deferred compensation shall be considered separately for purposes of measurement and assignment of such costs to cost accounting periods. However, if the cost of deferred compensation for the employees covered by a deferred compensation plan can be measured and assigned with reasonable accuracy on a group basis, separate computations for each employee are not required. 6. Section 9904.415-50 is amended by revising paragraph

(d)introductory text and

(e)introductory text and adding paragraph

(f)to read as follows: 9904.415-50 Techniques for application.

(d)The following provisions are applicable for plans, other than ESOPs, that meet the conditions of 9904.415-50(a) and the compensation is to be paid in money.

(e)The following provisions are applicable for plans, other than ESOPs, that meet the conditions of 9904.415-50(a) and the compensation is received by the employee in other than money. The measurements set forth in this paragraph constitute the present value of future benefits for awards made in other than money and, therefore, shall be deemed to be a reasonable measure of the amount of the future payment: (f)(1) For an ESOP, the contractor's cost shall be measured by the contractor's contribution, including interest and dividends if applicable, to the ESOP. The measurement of contributions made in the form of stock of the corporation or property, shall be based on the market value of the stock or property at the time the contributions are made. If the market value is not available, then fair value of the stock or property shall be used.

(2)A contractor's contribution to an ESOP shall be assignable to a cost accounting period only to the extent that the stock, cash, or any combination thereof resulting from the contribution is awarded to employees and allocated to individual employee accounts by the tax filing date for that period, including any permissible extensions thereof. All stock or cash that is allocated to the individual employee accounts between the end of the cost accounting period and the tax filing date for that period must be assigned to the cost accounting period in which the employee is awarded the stock or cash. Any portion of the stock or cash resulting from a contractor's contribution that is not awarded to employees or allocated to individual employee accounts by the tax filing date for that period, including any permissible extensions thereof, shall be assigned to a future cost accounting period or periods when the remaining portion of stock or cash has been awarded to employees and allocated to individual employee accounts. This stock shall retain the value established when it was originally purchased by or otherwise made available to the ESOP. 7. Section 9904.415-60 is amended by adding paragraphs (f), (g),

(h)and

(i)to read as follows: 9904.415-60 Illustrations.

(f)Contractor F has a non-leveraged ESOP. Under the contractor's plan, employees are awarded 5,000 shares of stock for the year ended December 31, 2007. On February 5, 2008, when the shares have a market value of $10.00 each, the 5,000 shares are contributed to the ESOP and allocated to the individual employee accounts. The total measured and assigned deferred compensation cost for FY 2007 is $50,000 (5,000 × $10 = $50,000). The market value of the contractor's stock when awarded to the employees, whether higher or lower than the $10.00 per share market value when the contractor's contribution was made to the ESOP, is irrelevant to the measurement of the contractor's ESOP costs.

(g)Contractor G has a leveraged ESOP. Under the contractor's plan, employees are awarded 10,000 shares of stock for the year ended December 31, 2007. On February 15, 2008, the contractor contributes $780,000 in cash to the ESOP trust

(ESOT)to satisfy the principal and interest payment on the ESOT loan for FY 2007, resulting in the bank releasing 9,000 shares of stock, and 1,000 shares of stock valued at $60,000 to the ESOT, representing the balance of the 10,000 shares. On February 22, 2008, the ESOP allocates 10,000 shares to the individual employee accounts. The total measured and assigned deferred compensation cost for FY 2007 is $840,000—the contractor's total contribution required to satisfy the deferred compensation obligation totaling 10,000 shares. (h)(1) Contractor H has a leveraged ESOP. Under the contractor's plan, employees are awarded 8,000 shares of stock for the year ended December 31, 2007. On January 31, 2008, the contractor contributes $500,000 in cash to the ESOT to satisfy the principal and interest payment on the ESOT loan for 2007, resulting in the bank releasing 10,000 shares of stock. On February 10, 2008, 8,000 shares are allocated to individual employee accounts, satisfying the deferred compensation obligation for 2007. The total measured deferred compensation cost for 2007 is $500,000—the contractor's contribution for the cost accounting period. However, the total assignable deferred compensation cost for 2007 is $400,000—the portion of the contribution that satisfies the 2007 deferred compensation obligation of 8,000 shares [(8,000 shares / 10,000 shares) × $500,000 = $400,000]. The remaining $100,000 of the contribution made in 2007 is assignable to future periods in which the remaining 2,000 shares of stock are awarded to employees and allocated to individual employee accounts.

(2)At December 31, 2008, the employees are awarded 12,000 shares of stock. On January 31, 2009, Contractor H contributes $500,000 in cash to the ESOT to satisfy the principal and interest payment on the ESOT loan for 2008, resulting in the bank releasing 10,000 shares of stock. On February 10, 2009, 12,000 shares are allocated to individual employee accounts satisfying the deferred compensation obligation for 2008. The total deferred compensation assignable to 2008 is $600,000, the cost of the 12,000 shares awarded to employees and allocated to individual employee accounts for 2008. The cost of the award is comprised of the contractor's contribution for the current cost accounting period (10,000 shares at $500,000) and the 2007 contribution carryover (2,000 shares at $100,000).

(i)Contractor I has a leveraged ESOP. Under the contractor's plan, employees are awarded 10,000 shares for FY 2007, which ended December 31, 2007. On February 10, 2008, Contractor I contributes $700,000 in cash to satisfy the principal and interest payment for the ESOP loan for FY 2007. This contribution results in the bank releasing 10,000 shares of stock. On March 1, 2008, the ESOP allocates the 10,000 shares to individual employee accounts satisfying the 2007 obligation. The 10,000 shares of stock must be assigned to FY 2007 (these shares cannot be assigned to 2008). 8. Section 9904.415-63 is revised to read as follows: 9904.415-63 Effective date.

(a)This Standard 9904.415 is effective as of June 2, 2008.

(b)This Standard shall be followed by each contractor on or after the start of its next cost accounting period beginning after the receipt of a contract or subcontract to which this Standard is applicable.

(c)Contractors with prior CAS-covered contracts with full coverage shall continue to follow Standard 9904.415 in effect prior to June 2, 2008 until this Standard, effective June 2, 2008, becomes applicable following receipt of a contract or subcontract to which this revised Standard applies.

(d)For contractors and subcontractors that have established advance agreements prior to June 2, 2008 regarding the recognition of the costs of existing ESOPs, the awarding agency and contractor shall comply with the provisions of such advance agreement(s) for these existing ESOPs, regardless of whether the ESOP was previously subject to CAS 412 or 415. These advance agreements may be modified, by mutual agreement, to incorporate the requirements effective on June 2, 2008. [FR Doc. E8-9376 Filed 4-30-08; 8:45 am] BILLING CODE 3110-01-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS—R2—ES—2008—0044; 40120—1113—0000-B3] RIN 1018—AW12 Endangered and Threatened Wildlife and Plants; Listing the Potential Sonoran Desert Bald Eagle Distinct Population Segment as Threatened Under the Endangered Species Act AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are issuing a final rule to amend the regulations for the Federal List of Endangered and Threatened Wildlife at 50 CFR 17.11 by designating bald eagles ( *Haliaeetus leucocephalus* ) in the Sonoran Desert area of central Arizona as threatened under the authority of the Endangered Species Act of 1973, as amended (Act). We are also reinstating and clarifying the former special rule at 50 CFR 17.41 that applied to threatened members of this species. This action revises the CFR to reflect a March 6, 2008, court order. DATES: This action is effective May 1, 2008. However, the court order had legal effect immediately upon being filed on March 6, 2008. FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, Arizona 85021; telephone 602-242-0210; facsimile 602-242-2513; *http://www.fws.gov/southwest/es/arizona/.* SUPPLEMENTARY INFORMATION: Background Information about the bald eagle's life history can be found in our July 9, 2007 (72 FR 37346), final delisting rule for bald eagles in the lower 48 States. Previous Federal Action Information about previous Federal actions was provided in our July 9, 2007 (72 FR 37346), final delisting rule for bald eagles in the lower 48 States. On October 6, 2004, we received a petition, dated October 6, 2004, from the Center for Biological Diversity (CBD), the Maricopa Audubon Society, and the Arizona Audubon Council requesting that the “Southwestern desert nesting bald eagle population” be classified as a distinct population segment (DPS), that this DPS be reclassified from a threatened species to an endangered species, and that we concurrently designate critical habitat for the DPS under the Act. On March 27, 2006, the CBD and the Maricopa Audubon Society filed a lawsuit against the U.S. Department of the Interior and the Service for failing to make a timely finding on the petition. The parties reached a settlement and the Service agreed to complete its petition finding by August 2006. We announced our 90-day finding, required under 16 U.S.C. 1533(b)(3)(A), on August 30, 2006 (71 FR 51549), that the petition did not present substantial scientific or commercial information indicating that the petitioned action may be warranted. On January 5, 2007, the CBD and the Maricopa Audubon Society filed a lawsuit challenging the Service's 90-day finding that the “Sonoran Desert population” of the bald eagle did not qualify as a DPS, and further challenging the Service's 90-day finding that the population should not be up-listed to endangered status. On July 9, 2007 (72 FR 37346), we published the final delisting rule for bald eagles in the lower 48 States. In that final delisting rule, we stated that our findings on the status of the Sonoran Desert population of bald eagles superseded our 90-day petition finding because the final delisting rule constituted a final decision on whether the Sonoran Desert population of bald eagles qualified for listing as a DPS under the Act. On August 17, 2007, the CBD and the Maricopa Audubon Society filed a motion for summary judgment, requesting the court to make a decision on their January 5, 2007, lawsuit. On March 5, 2008, the U.S. District Court for the District of Arizona ruled in favor of the CBD and the Maricopa Audubon Society. The court order (Center for *Biological Diversity* v. *Kempthorne,* CV 07-0038-PHX-MHM (D. Ariz)), was filed on March 6, 2008. The court ruled for the plaintiffs and found that the Service:

(1)Finding on the status of the Sonoran Desert population of bald eagles in our July 9, 2007 (72 FR 37346), final delisting rule did not moot the plaintiff's challenge to the August 30, 2006, negative 90-day petition finding;

(2)Applied an inappropriately strict evidentiary burden on the petition at the 90-day review stage and thus arbitrarily and capriciously concluded that the petition did not present substantial information that listing the “Desert bald eagle population” may be warranted; and

(3)Arbitrarily and capriciously conducted the 90-day review of the petition by soliciting information and opinions from a limited outside source. The court provided the following remedies and ordered the Service to:

(1)Conduct a status review of the Desert bald eagle population pursuant to the Act to determine whether listing that population as a DPS is warranted, and if so, whether listing that DPS as threatened or endangered pursuant to the Act is warranted;

(2)Issue a 12-month finding, pursuant to 16 U.S.C. 1533(b)(3)(B), on whether listing the Desert bald eagle population as a DPS is warranted, and if so, whether listing that DPS as threatened or endangered is warranted; and

(3)Issue the 12-month finding within nine months of the court order, pursuant to 16 U.S.C. 1533(b)(3)(B), which translates to on or before December 5, 2008. Further, the court enjoined the Service's application of the July 9, 2007 (72 FR 37346), final delisting rule to the Sonoran Desert population of bald eagles pending the outcome of our status review and 12-month petition finding. The “Desert bald eagle population” referenced in the court order consists of those bald eagles in the Sonoran Desert of the southwest that reside in central Arizona and northwestern Mexico. Because these Sonoran Desert bald eagles were only listed under the Act in Arizona (and not in Mexico) at the time of the petition, the court's order enjoining our final delisting decision applies only to those bald eagles found in the Sonoran Desert region of the American Southwest. In other words, the court's order temporarily reinstated the listing of the bald eagle as a threatened species, but only with respect to the eagles that reside in the Sonoran Desert of central Arizona. The court order was effective as of March 6, 2008, the date it was filed. In order to determine the geographic area where the bald eagle would remain listed as threatened in Arizona, we examined the CBD's letter sent to us on March 5, 2005, clarifying their petitioned October 2004 Distinct Population Segment boundary. We used the information provided by the CBD because the court found that their October 2004 90-day petition “may be warranted” and, therefore, the petition represents the basis for determining the geographic extent of the area affected by this final rule. The CBD cited two documents describing vegetation communities (Brown 1973, 1994) and an Arizona Game and Fish Department

(AGFD)bald eagle nest search report (Canaca *et al.* 2004). The CBD notes in the petition that information is provided to support listing a “distinct population segment of Southwestern Desert Nesting Bald Eagle consistent with the geographical boundaries including the Sonoran Desert riparian areas of Central Arizona and northwestern Mexico.” With regards to the Arizona portion, the petition notes that this area in central Arizona exists between 329 and 1719 meters (1080 and 5640 feet) in elevation, falling within the Upper and Lower Sonoran Life Zones and transition areas as described by Brown 1994. We used the above three references and the specific elevation text to define the geographic boundary of the petitioned DPS. Therefore, while we had specific clarification with respect to elevational boundaries, bald eagle breeding areas, the Upper and Lower Sonoran Life Zones, and the State of Arizona, we also received ambiguous direction with respect to the boundaries of “central Arizona” and which transition areas outside of the Upper and Lower Sonoran Life Zones to include. Because of these ambiguities and lack of a specific map in the petition, we were left to interpret their clarification, primarily at the perimeters of the boundary. We used all the factors provided by the CBD (i.e., bald eagle territories, elevation, life zones, and transition areas) and established a boundary that included all known bald eagle breeding areas within central Arizona. The boundary was difficult to interpret on the ground due to irregular lines or gaps in elevation from layers of electronic geographical data. Therefore, we used more identifiable and easily understood boundaries of county lines and highways that were found at the outer edges of the erratic boundaries. It is important to note that known bald eagle breeding habitat of the Sonoran Desert, as described in the petition, is not contiguous between Arizona and northwestern Mexico. The somewhat disjointed nature of bald eagle breeding habitat and its well known distribution in Arizona is likely why the petitioners specified “central Arizona.” Thus, the counties in the southern half of Arizona were not included in this final rule because they do not possess known bald eagle breeding areas, known suitable habitat for breeding eagles, and fall outside of the petitioner's geographic description. We determined that the affected area covers the following eight Arizona counties:

(1)Yavapai, Gila, Graham, Pinal, and Maricopa Counties in their entirety; and

(2)southern Mohave County (that portion south and east of the centerline of Interstate Highway 40 and east of Arizona Highway 95), eastern LaPaz County (that portion east of the centerline of U.S. and Arizona Highways 95), and northern Yuma County (that portion east of the centerline of U.S. Highway 95 and north of the centerline of Interstate Highway 8). All bald eagles found within this area are protected as a threatened species under the Act, with a special rule under our regulations at 50 CFR 17.41. Please refer to the following map for details of the geographic area affected by this action. BILLING CODE 4310-55-P ER01MY08.005 BILLING CODE 4310-55-C Administrative Procedure This rulemaking is necessary to comply with a March 6, 2008, court order. Therefore, under these circumstances, the Director has determined, pursuant to 5 U.S.C. 553(b), that prior notice and opportunity for public comment are impractical and unnecessary. The Director has further determined, pursuant to 5 U.S.C. 553(d), the agency has good cause to make this rule effective upon publication and require compliance retroactively to the date of the court order. Effects of the Rule Any and all bald eagles, including migrants, found within the boundaries of the Sonoran Desert area of central Arizona, as delineated by the map included as part of this rule, are hereby listed as a threatened species under the Act, with a special rule found at 50 CFR 17.41. The provisions of the special rule at 50 CFR 17.41 that we are adding here under the Act are the same as those in the prior special rule that was removed per our July 9, 2007 (72 FR 37346), final delisting rule removing the threatened status for bald eagles in the lower 48 States. This special rule now applies only to bald eagles in the Sonoran Desert area of central Arizona, the only such population of bald eagles so listed under the Act. Under this special rule, bald eagle banding and marking permits issued under the Migratory Bird Treaty Act

(MBTA)(16 U.S.C. 703-712) and its implementing regulations at 50 CFR 21.22, and also under the Bald and Golden Eagle Protection Act (BGEPA) (16 U.S.C. 668-668d) and its implementing regulations at 50 CFR part 22, will be deemed to also satisfy the requirements for a permit under the Act and its implementing regulations at 50 CFR 17.31 and 17.32. The BGEPA regulations at 50 CFR part 22 authorize permits for taking, possession, and transportation within the United States for scientific, educational, and depredation control purposes and for the religious purposes of American Indian tribes. This part also governs the transportation into or out of the United States of bald and golden eagle parts for scientific, educational, and Indian religious purposes. Under this special rule, it will not be necessary to obtain a separate permit under the Act for the same activities already authorized under the MBTA and BGEPA permits described above. Although the petition also included Sonoran Desert bald eagles in northwestern Mexico, these bald eagles remain unlisted because bald eagles in this area were not previously listed pursuant to the Act and thus their status was unaffected by the court order limiting the effects of our July 9, 2007 (72 FR 37346), final delisting rule. Consistent with the court's March 6, 2008 order, this rule will be in effect “pending the outcome of the status review and 12-month finding.” However, we will immediately remove the bald eagle in the Sonoran Desert area of central Arizona from the List of Endangered and Threatened Wildlife if the court's March 6, 2008, order is stayed or reversed in any subsequent judicial proceeding, or if, after completion of the status review, we publish a 12-month finding that listing the Sonoran Desert bald eagle is not warranted. No decision has been made as to whether the government will appeal that order. We will publish a notice requesting public input for the status review required under the March 6, 2008, court order in the **Federal Register** in the near future. This status review will consider the population of bald eagles as described in the October 6, 2004, petition and any other relevant information received during the public comment period and will be based upon the best scientific and commercial data available, pursuant to the Act. Under this final rule, the prohibitions and conservation measures provided by the Act, particularly sections 7, 9, and 10, apply to bald eagles in the Sonoran Desert area of central Arizona. Federal agencies are required under the court order and this final rule to consult with us under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect listed bald eagles. In addition to the conservation measures provided by the Act, the *Conservation Assessment and Strategy for Bald Eagles in Arizona*

(CAS)(Driscoll *et al.* 2006) contains guidance on measures to eliminate, reduce, or minimize effects to eagles in Arizona. On January 22, 2007, the Service signed a Memorandum of Understanding with the AGFD supporting the implementation of the AGFD's CAS. The Memorandum of Understanding was also signed by the following Federal agencies: Bureau of Reclamation, Bureau of Land Management, National Park Service, Forest Service, and the Department of Defense, including the U.S. Army Corps of Engineers. The CAS provides additional valuable guidance for protecting bald eagles in Arizona, and we support using it in conjunction with our Bald Eagle National Management Guidelines to protect bald eagles in Arizona. All bald eagles, of course, will continue to be protected under the BGEPA and MBTA. We recommend that persons use our *Bald Eagle National Management Guidelines* (Guidelines), announced in the **Federal Register** on June 5, 2007 (72 FR 31156), as guidance for minimizing the risk of violating the protections afforded to all bald eagles under these various Acts and their respective implementing regulations. The Guidelines include suggestions for protecting bald eagles and their habitat while they are nesting, feeding, and roosting. While eagles originating in the Sonoran Desert area of central Arizona would not be protected by the Act if they traveled to other parts of the United States, they would still be afforded the protections under the BGEPA and MBTA. This rule will not affect the bald eagle's status under State laws or suspend any other legal protections provided by State law. This rule will not affect the bald eagle's Appendix II status under the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES). Additionally, pursuant to section 6 of the Act, we are able to grant available funds to the State of Arizona for management actions promoting the protection of bald eagles in the Sonoran Desert area of central Arizona. Required Determinations National Environmental Policy Act We have determined that we do not need to prepare an Environmental Assessment, as defined in the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ), in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act. We published a notice outlining our reasons for this determination in the **Federal Register** on October 25, 1983 (48 FR 49244). Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of Interior's manual at 512 DM 2, we readily acknowledge our responsibility to consult with Federally recognized Tribes on a government-to-government basis. Accordingly, we will promptly consult with the affected Tribes regarding the effects of the court's March 6, 2008, order and this final rule. We will also consult with the affected tribes as we conduct our new status review concerning the Sonoran Desert nesting bald eagle population. References Cited Brown, D. 1973. The Natural Vegetative Communities of Arizona. Arizona Game and Fish Department, Phoenix, AZ. Brown, D. (editor). 1994. Biotic Communities of the Southwestern United States and Northwestern New Mexico. The University of Utah Press, Salt Lake City, UT. Canaca, J.S., K.V. Jacobson, and J.T. Driscoll. 2004. Arizona Bald Eagle 2003 Nest Survey, Nongame and Endangered Wildlife Program Technical Report 226. Arizona Game and Fish Department, Phoenix, AZ. Driscoll, J.T., K.V. Jacobson, G.L. Beatty, J.S. Canaca, and J.G. Koloszar. 2006. Conservation Assessment and strategy for the bald eagle in Arizona. Nongame and Endangered Wildlife Program Technical Report 173. Arizona Game and Fish Department, Phoenix, Arizona. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, and Transportation. Regulation Promulgation Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. § 17.11 [Amended] 2. In § 17.11(h), an entry for “Eagle, Bald” is added under BIRDS to read as follows: Species Common name Scientific name Historic range Vertebrate population where endangered or threatened Status When listed Critical habitat Special rules * * * * * * * **Birds** * * * * * * * Eagle, bald *Haliaeetus leucocephalus* North Arizona: South to northern Mexico Arizona:

(1)Yavapai, Gila, Graham, Pinal, and Maricopa, Counties; and

(2)Southern Mohave County (that portion south and east of the center of Interstate Highway 40 and east of Arizona Highway 95), eastern LaPaz County (that portion east of the centerline of U.S. and Arizona Highways 95), and north of the centerline of Interstate Highway 8) T NA 17.41(a). * * * * * * * 3. Section 17.41 is amended by adding paragraph

(a)to read as follows: § 17.41 Special rules—birds.

(a)Bald eagles ( *Haliaeetus leucocephalus* ) wherever listed as threatened under § 17.11(h). All provisions of §§ 17.31 and 17.32 apply to any threatened bald eagle, with the following exceptions:

(1)The Service will consider any permit that we issue for bald eagles under § 21.22 (banding and marking permits) or part 22 of this chapter (permits for certain activities with bald or golden eagles) to satisfy all requirements of § 17.31 and the permits we issue under § 17.32.

(2)The Service will not require a second permit under § 17.32 for any activity that is covered by a permit issued under § 21.22 or part 22 of this chapter.

(3)The Service will require a permit under § 17.32 for any activity that is not covered by a permit issued under § 21.22 or part 22 of this chapter. Dated: April 18, 2008. H. Dale Hall, Director, Fish and Wildlife Service. [FR Doc. 08-1203 Filed 4-28-08; 4:00 pm]

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