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Code · REGISTER · 2008-05-06 · PROPOSED RULES · Agricultural Agricultural Marketing Service RULES Sorghum Promotion, Research, and Information Order, 25398-25417 E8-9327 Agriculture Agriculture Department See Agricultural Marketing Service See Anim · Unknown

Unknown. Final rule; correction

32,816 words·~149 min read·/register/2008/05/06/08-1217

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-2008-05-06.xml --- 73 88 Tuesday, May 6, 2008 Contents Agricultural Agricultural Marketing Service RULES Sorghum Promotion, Research, and Information Order, 25398-25417 E8-9327 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service Air Force Air Force Department NOTICES Meetings: Air Force Academy Board of Visitors, 24956 E8-9928 Animal Animal and Plant Health Inspection Service RULES Interstate Movement of Fruit from Hawaii, 24851-24856 E8-9978 PROPOSED RULES Importation of Nursery Stock;
Postentry Quarantine Requirements for Potential Hosts of Chrysanthemum White Rust, etc., 24886-24887 E8-9968 Bonneville Bonneville Power Administration NOTICES 2012 Tiered Rate Methodology Proceeding; republication, 24961-24964 E8-9953 Centers Centers for Medicare & Medicaid Services RULES Medicare Program; Changes for Long-Term Care Hospitals Required by Certain Provisions of the Medicare, Medicaid, SCHIP Extension Act of 2007: 3-Year Delay in the Application of Payment Adjustments for Short Stay Outliers and Changes to the Standard Federal Rate, 24871-24881 08-1217 Children Children and Families Administration NOTICES Statement of Organization, Functions and Delegation of Authority, 25016 E8-9898 Civil Civil Rights Commission NOTICES Meetings:
Tennessee Advisory Committee, 24938 E8-9924 Coast Guard Coast Guard RULES Drawbridge Operation Regulations: Arkansas Waterway, Little Rock, AR, 24866-24868 E8-9818 PROPOSED RULES Safety and Security Zones: New York Marine Inspection Zone and Captain of the Port Zone, 24889-24899 E8-10000 Safety Zone; Rochester Harborfest, Lake Ontario at the Genesee River, Rochester, NY, 24899-24901 E8-10001 Safety Zone; Thunder on Niagara, Niagara River, North Tonawanda, NY, 24901-24904 E8-10005 Safety Zone;
Ybor Summer Weekly Fireworks - Ybor Turning Basin, Tampa Bay, FL, 24904-24906 E8-10002 Commerce Commerce Department See Foreign-Trade Zones Board See International Trade Administration See National Institute of Standards and Technology See National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24938-24939 E8-9933 E8-9934 Defense Defense Department See Air Force Department Defense Defense Nuclear Facilities Safety Board NOTICES FOIA Fee Schedule Update, 24956-24957 E8-9955 Education Education Department NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 24957-24959 E8-9920 E8-9921 E8-9923 Meetings: National Assessment Governing Board, 24959-24960 E8-9946 Election Election Assistance Commission NOTICES Meetings; Sunshine Act, 24960-24961 E8-9753 Employment Employment Standards Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25032-25033 E8-9915 Energy Energy Department See Bonneville Power Administration See Federal Energy Regulatory Commission See Western Area Power Administration EPA Environmental Protection Agency RULES Approval and Promulgation of Implementation Plans:
Revised Motor Vehicle Emissions Budgets; State of New Jersey, 24868-24870 E8-9819 Change of Address for Submission of Certain Reports; Technical Correction, 24870-24871 E8-9963 Control of Emissions of Air Pollution from Locomotive Engines and Marine Compression-Ignition Engines Less than 30 Liters per Cylinder, 25098-25352 E8-7999 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24973-24982 E8-9948 E8-9949 E8-9951 E8-9952 E8-9954 E8-9961 Draft Toxicological Review of Cerium Oxide and Cerium Compounds:
In Support of the Summary Information in the Integrated Risk Information System (IRIS), 24982-24983 E8-9947 Executive Executive Office of the President See Presidential Documents FAA Federal Aviation Administration RULES Airworthiness Directives: BAE Systems (Operations) Limited Model BAe 146 and Model Avro 146 RJ Airplanes, 24864-24866 E8-9876 Bell Helicopter Textron Model 204B, 205A, 205A-1, 205B, 210, 212, 412, 412CF, and 412EP Helicopters, 24858-24864 E8-9790 Eurocopter France Model EC120B Helicopters, 24856-24858 E8-9799 PROPOSED RULES Airworthiness Directives:
McDonnell Douglas Model DC-8-61, DC-8-61F, DC 8 63, DC-8-63F, DC-8-71F, and DC-8-73F Airplanes, 24887-24889 E8-9883 NOTICES Receipt of Noise Compatibility Program and Request for Review: Burlington International Airport, South Burlington, VT, 25076-25077 E8-9618 FCC Federal Communications Commission RULES Non-Substantive Revisions to the Table of Frequency Allocations, 25420-25498 E8-9341 Federal Election Federal Election Commission NOTICES Filing Dates for the Maryland Special Election in the 4th Congressional District, 24983-24984 E8-9859 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Notice of Filings, 24964-24966 E8-9901 E8-9965 Complaint:
ConocoPhillips Company v. Entergy Services, Inc., 24966 E8-9902 Declaration of Intention and Soliciting Comments Protests/Motions to Intervene: Green Valleys Association, 24966-24967 E8-9903 Electric Quarterly Report; Order on Intent to Revoke Market-Based Rate Authority: Dunhill Power, L.P. et al., 24967-24968 E8-9906 Extension of Time: North American Electric Reliability Corp., 24968 E8-9905 Intent to Prepare Environmental Assessment: Thomas Corners Storage Project; Arlington Storage Company, LLC, Steuben County, NY, 24968-24970 E8-9904 Federal Highway Federal Highway Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 25078-25079 E8-9860 Final Federal Agency Actions on Proposed Highway in Ohio, 25077-25078 E8-9880 Federal Reserve Federal Reserve System NOTICES Formations, Acquisitions, and Mergers of Bank Holding Companies, 24984 E8-9938 Privacy Act; Systems of Records, 24984-25014 E8-9926 FTC Federal Trade Commission NOTICES Granting of Request for Early Termination Waiting Period Under the Premerger Notification Rules, 25014-25015 E8-9754 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: 12 Month Finding on a Petition to List the White-tailed Prairie Dog (Cynomys leucurus) as Threatened or Endangered, 24910-24911 E8-9830 90-Day Finding on a Petition to List Kokanee (Oncorhynchus nerka) in Lake Sammamish, Washington, as Threatened or Endangered, 24915-24922 E8-9832 Designation of Critical Habitat for the Louisiana Black Bear (Ursus americanus luteolus), 25354-25395 E8-9635 Petition To List the San Francisco Bay-Delta Population of the Longfin Smelt (Spirinchus thaleichthys) as Endangered, 24911-24915 E8-9835 Food Food and Drug Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 25016-25018 E8-9882 MISSING FOR: Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES Establishment of a Foreign-Trade Zone; Grant of Authority: West Memphis, AK, 24939 E8-9976 Expansion of Foreign-Trade Zone (134): Chattanooga, TN, 24939-24940 E8-9972 Expansion of FTZ 44 and Expansion of Scope of Manufacturing: Mt. Olive, NJ, 24940 E8-9985 Grant of Authority for Subzone Status: Holyoke, MA, 24940 E8-9979 York, PA, 24940-24941 E8-9983 Health Health and Human Services Department See Centers for Medicare & Medicaid Services See Children and Families Administration See Food and Drug Administration See National Institutes of Health NOTICES Findings of Scientific Misconduct, 25015-25016 E8-9858 Homeland Homeland Security Department See Coast Guard See Transportation Security Administration See U.S.
Customs and Border Protection RULES Acquisition Regulation: One-Step Turnkey Design-Build Contracts for United States Coast Guard (HSAR Case 2007-002), 24881-24883 E8-9900 Housing Housing and Urban Development Department NOTICES Section 8 Housing Choice Vouchers: Implementation of the HUD-VA Supportive Housing Program, 25026-25028 08-1220 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau International International Trade Administration NOTICES Meeting of the U.S.
Travel and Tourism Advisory Board, 24941 08-1212 Partial Rescission of the Administrative Review and Intent to Rescind the Administrative Review: Polyethylene Retail Carrier Bags from Malaysia, 24941-24943 E8-9992 Preliminary Results of Antidumping Duty Administrative Review: Chlorinated Isocyanurates from the People's Republic of China, 24943-24949 E8-9990 Rescission of Antidumping Duty Administrative Review: Ferrovanadium from South Africa, 24949 E8-9988 International International Trade Commission NOTICES Determinations;
Five-Year Reviews: Polyethylene Terephthalate Film, Sheet, and Strip From India and Taiwan, 25030 E8-9935 Justice Justice Department NOTICES Availability of the Record of Decision: Proposal to Develop a Federal Correctional Complex; Aliceville, Alabama Area, 25031 E8-9881 Consent Decree: United States v. Teledyne Technologies Inc., 25031-25032 E8-9893 Labor Labor Department See Employment Standards Administration Land Land Management Bureau NOTICES Classification/Lease/Conveyance, etc.;
Clark County, NV, 25028-25030 E8-9932 Filing of Plats of Survey: Wyoming, 25030 E8-9931 Meetings: Eastern Washington Resource Advisory Council, 25030 E8-9918 National Archives National Archives and Records Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25033 E8-9944 National Highway National Highway Traffic Safety Administration PROPOSED RULES Insurer Reporting Requirements; List of Insurers Required to File Reports, 24906-24910 E8-9999 National Institute National Institute of Standards and Technology NOTICES Meetings:
Advisory Committee on Earthquake Hazards Reduction, 24949-24950 E8-9958 Visiting Committee on Advanced Technology, 24950 E8-9957 NIH National Institutes of Health NOTICES Government-Owned Inventions; Availability for Licensing, 25018-25019 E8-9871 Meetings: National Cancer Institute Board of Scientific Advisors, 25020 E8-9875 National Cancer Institute Initial Review Group, 25020-25021 E8-9877 E8-9879 National Cancer Institute Special Emphasis Panel, 25019-25020 E8-9874 Prospective Grant of Exclusive License:
Antibody Therapeutics for the Treatment of Cancer in Humans, 25021 E8-9873 NOAA National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Closure of the 2008 Commercial Fishery for Tilefishes, 24884-24885 E8-9878 Closure of the 2008 Deepwater Grouper Commercial Fishery, 24883-24884 E8-9886 Fisheries of the Northeastern United States: Tilefish Fishery; Quota Harvested for Full-time Tier 2 Category, 24885 08-1218 PROPOSED RULES Atlantic Highly Migratory Species;
Atlantic Tuna Fisheries; Gear Authorization and Turtle Control Devices, 24922-24936 E8-9888 Magnuson-Stevens Fishery Conservation and Management Act Provisions: Fisheries of the Northeastern United States; Northeast Multispecies Fishery, etc., 24936-24937 E8-9970 NOTICES Application for Exempted Fishing Permits: General Provisions for Domestic Fisheries, 24951-24952 E8-9967 Draft Management Plan and Environmental Assessment; Meetings: Gerry E. Studds Stellwagen Bank National Marine Sanctuary, 24952-24953 E8-9977 Meetings:
Gulf of Mexico Fishery Management Council, 24953-24954 E8-9913 New England Fishery Management Council, 24954 E8-9911 E8-9912 Pacific Fishery Management Council, 24954-24955 E8-9914 Pacific Halibut Fishery; Guideline Harvest Levels for the Guided Recreational Halibut Fishery; Correction, 24955 E8-9869 Vessel Monitoring Systems: Revision of the Enhanced Mobile Transmitter Unit Reimbursement Program, 24955-24956 E8-9994 National Science National Science Foundation NOTICES Permit Applications, 25033-25034 E8-9943 Nuclear Nuclear Regulatory Commission NOTICES Application Renewal;
Reciept and Availability: Prairie Island Nuclear Generating Plant, Units 1 And 2; Nuclear Management Co., LLC, 25034 E8-9939 Biweekly Notice: Applications and Amendments to Facility Operating Licenses Involving No Significant Hazards Considerations, 25034-25050 E8-9679 Environmental Assessment: Humboldt Bay Power Plant Unit 3; Humboldt, CA, 25050-25051 E8-9937 Environmental Assessment; Availability, Etc.: Virginia Commonwealth University's Incineration Facility, Ashland, VA, 25051-25053 E8-9916 Facility Operating License Consideration, etc.:
Southern California Edison, 25053-25054 E8-9940 Meetings; Sunshine Act, 25055 08-1224 Renewed Facility Operating License Application; Withdrawal: Millstone Power Station, Unit No. 2; Dominion Nuclear Conneticut, Inc., 25055 E8-9936 Personnel Personnel Management Office RULES Human Resources Management In Agencies; Correction, 24851 E8-9973 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Meetings: Technical Pipeline Safety Standards Committee, 25079 E8-9930 Public Invitation To Comment:
Maine Department of Environmental Protection Requirements on Transportation of Cathode Ray Tubes, 25079-25094 E8-9524 Presidential Presidential Documents PROCLAMATIONS *Special observances:* Law Day, U.S.A. (Proc. 8250), 25499-25502 08-1223 SEC Securities and Exchange Commission NOTICES Application: Bessemer Group, Incorporated, et al., 25056-25061 E8-9910 Meetings; Sunshine Act, 25061 E8-10020 Self-Regulatory Organizations; Proposed Rule Changes: American Stock Exchange LLC, 25061-25066 E8-9892 Chicago Board Options Exchange, Inc., 25067-25068 E8-9908 Chicago Stock Exchange, Inc., 25068-25070 E8-9866 International Securities Exchange LLC, 25070-25072 E8-9907 Options Clearing Corp., 25072-25073 E8-9909 Philadelphia Stock Exchange, Inc., 25073-25074 E8-9867 SBA Small Business Administration NOTICES Disaster Declarations:
Colorado, 25074-25075 E8-9856 Kentucky, 25075 E8-9857 State State Department NOTICES Culturally Significant Objects Imported for Exhibition Determinations: Tutankhamun: The Golden King and the Great Pharaohs, 25075-25076 E8-9975 Surface Surface Transportation Board NOTICES Abandonment Exemption: Great Western Railway of Colorado, LLC, Weld County, CO, 25095 E8-9847 TVA Tennessee Valley Authority NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25076 E8-9941 E8-9942 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration See Surface Transportation Board Transportation Transportation Security Administration NOTICES Transportation Worker Identification Credential:
Enrollment Dates for the Ports of Houma, LA, et al., 25021-25022 E8-10003 Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25022-25026 E8-9969 E8-9971 E8-9987 E8-9989 E8-9991 E8-9993 Veterans Veterans Affairs Department RULES Typographical Error; Notice and Assistance Requirements; Correction, 24868 E8-9966 Western Western Area Power Administration NOTICES Findings for the Sacramento Area Voltage Support Project, 24970-24973 E8-9956 Separate Parts In This Issue Part II Environmental Protection Agency, 25098-25352 E8-7999 Part III Interior Department, Fish and Wildlife Service, 25354-25395 E8-9635 Part IV Agriculture Department, Agricultural Marketing Service, 25398-25417 E8-9327 Part V Federal Communications Commission, 25420-25498 E8-9341 Part VI Executive Office of the President, Presidential Documents, 25499-25502 08-1223 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 88 Tuesday, May 6, 2008 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 250 RIN 3206-AJ92 Human Resources Management in Agencies AGENCY: Office of Personnel Management. ACTION: Final rule; correction. SUMMARY:
The Office of Personnel Management
(OPM)is correcting a final rule to implement certain provisions of the Chief Human Capital Officers Act of 2002, which set forth new OPM and agency responsibilities and requirements to enhance and improve the strategic management of the Federal Government's civilian workforce, as well as the planning and evaluation of agency efforts in that regard. This correction makes sure that subpart C of 5 CFR part 250 dealing with employee surveys is not affected by the changes to subpart A and subpart B. DATES: *Effective Date:* The regulations are effective on May 28, 2008. FOR FURTHER INFORMATION CONTACT: Charles D. Grimes by phone at 202-418-3163, by FAX at 202-606-2838, or by e-mail at *pay-performance-policy@opm.gov.* You may contact Mr. Grimes by TTY on 202-418-3134. SUPPLEMENTARY INFORMATION: On April, 28, 2008, the Office of Personnel Management
(OPM)issued final regulations to change 5 CFR part 250, to read “Human Resources Management in Agencies” to reflect current usage, to make a plain language revision in subpart A, and to add regulations on strategic human resources management as new subpart B. In 73 FR 23012, appearing on page 23013 in the **Federal Register** of Monday, April 28, 2008, the following correction is made: PART 250—[CORRECTED] 1. On page 23013, in the third column, in Part 250 Human Resources Management in Agencies, in amendment 1, the instruction “Revise part 250 to read as follows:” is corrected to read “Revise subpart A and add subpart B to part 250 to read as follows:” Office of Personnel Management. Charles D. Grimes III, Deputy Associate Director, Center for Performance and Pay Systems. [FR Doc. E8-9973 Filed 5-5-08; 8:45 am] BILLING CODE 6325-39-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Parts 305 and 318 [Docket No. APHIS-2007-0050] RIN 0579-AC62 Interstate Movement of Fruit From Hawaii AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Final rule. SUMMARY: We are amending the Hawaiian fruits and vegetables regulations to allow mangosteen, dragon fruit, melon, pods of cowpea and its relatives, breadfruit, jackfruit, and fresh moringa pods to be moved interstate from Hawaii under certain conditions. This action will allow the movement of these tropical fruits from Hawaii to the continental United States while continuing to provide protection against the spread of plant pests from Hawaii to the continental United States. DATES: *Effective Date:* May 6, 2008. FOR FURTHER INFORMATION CONTACT: Mr. David B. Lamb, Import Specialist, Commodity Import Analysis and Operations, PPQ, VS, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1236;
(301)734-8758. SUPPLEMENTARY INFORMATION: Background The Hawaiian fruits and vegetables regulations, contained in 7 CFR 318.13 through 318.13-17 (referred to below as the regulations), govern, among other things, the interstate movement of fruits and vegetables from Hawaii to the continental United States. The regulations are necessary to prevent the spread of plant diseases and pests that occur in Hawaii but not in the continental United States. The regulations in § 318.13-4f identify specific fruits and vegetables that are allowed to be moved interstate from Hawaii if, among other things, they are treated with irradiation in accordance with our phytosanitary treatments regulations in 7 CFR part 305. On November 15, 2007, we published in the **Federal Register** (72 FR 64163-64170, Docket No. APHIS-2007-0050) a proposal 1 to amend the regulations to allow mangosteen, dragon fruit, melon, pods of cowpea and its relatives, breadfruit, jackfruit, and fresh moringa pods to be moved interstate from Hawaii under certain conditions. We also proposed to amend § 305.31(a) to add irradiation doses for three plant pests: Coconut scale ( *Aspidiotus destructor* ), white peach scale ( *Pseudaulacaspis pentagona* ), and *Copitarsia decolora* (Lepidoptera: Noctuidae). 1 To view the proposed rule and the comments we received, go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0050* . We solicited comments concerning our proposal for 60 days ending January 14, 2008. We received nine comments by that date, from private citizens, members of Congress, Hawaiian fruit growers, a farm bureau organization, scientists, a consumer group, and a foreign agricultural agency. The commenters were generally supportive of the proposed rule, but some did raise issues about the proposal. Those issues are discussed below. One commenter stated that the irradiation standards for Hawaiian produce are less flexible than those for international shipments. Specifically, the commenter drew attention to the provisions regarding the design of a facility's dosimetry system and procedures. The regulations in 7 CFR 305.31, which apply to imported produce, provide that the facility operator must address guidance and principles from the American Society for Testing and Materials
(ASTM)Standards, or equivalent standards recognized by the Administrator. However, the regulations in 7 CFR 305.34, which apply to Hawaiian produce, specify the use of ASTM standards only, and do not allow for the use of equivalent standards. The commenter stated that this discrepancy gives greater flexibility to foreign imports and allows foreign produce to gain access to markets in the continental United States ahead of Hawaiian produce. We note that the standards for irradiation treatment for Hawaiian produce were established before those for imports. When the standards for imports were proposed, they were identical to those already established for Hawaiian produce. However, a comment we received on that proposal rightly pointed out that the ASTM standards for dosimetry describe basic principles, effective techniques, and best practices, but do not provide absolute or mandatory standards for dosimetry systems. The same comment pointed out that other organizations, such as the National Institute of Standards and Technology, also have prepared standards regarding dosimetry that could also be used. In response to that comment, we amended the text of § 305.31 to change the manner in which we characterized the ASTM standards and to allow for the use of equivalent standards recognized by the Administrator. While it would have been appropriate to have made the same changes regarding standards to § 305.34 in the final rule that established § 305.31, it did not occur to us to do so at that time. As a result of this more recent comment bringing the discrepancy between the two sections to our attention, we are amending § 305.34(b)(6)(iii) in this final rule so that it is consistent with the corresponding provisions in § 305.31. We are also amending the regulations in § 305.32, which provide for irradiation treatment of produce from areas quarantined for Mexican fruit fly, so that its provisions regarding dosimetry standards are consistent as well. One commenter noted that the handling, marking, and shipping requirements for irradiated produce are more stringent than for any other treatment schedules. This may be the case; however, irradiation technology has some unique challenges that are not common with other treatments. Since irradiation treatment may render pests sterile rather than killing them outright, and therefore live pests may accompany shipments, there is no easy way to validate the irradiation treatment as may be done with other treatments. As a result, greater emphasis is placed on treatment monitoring, documentation, and system integrity when irradiation is used than when other treatments are used. This is to remove any chance for commodity commingling or reinfestation by pests. Several commenters requested that we implement a streamlined process for approving Hawaiian produce for movement to the continental United States similar to the one now used for approving imported fruits and vegetables. We agree that a streamlined approach would be appropriate for approving Hawaiian fruits and vegetables and intend to address the issue in a separate rulemaking currently under development. One commenter requested clarification of why the Mediterranean fruit fly (Medfly) was included on the list of pests associated with melon from Hawaii. The commenter noted that Medfly has not been reported in interceptions from Hawaii, and that scientific literature does not include references to field infestations of melon by Medfly. The Medfly was included in the pest risk assessment
(PRA)for melon from Hawaii for several reasons. The Medfly is a serious agricultural pest and is established in Hawaii. Melon has been found to be a host of the Medfly under experimental conditions. Furthermore, the host fruit conditions determining the suitability or unsuitability of melon for Medfly are unknown. For these reasons melon as a host of Medfly in Hawaii remains in the PRA. We also note that some *Bactrocera* species fruit flies occurring in Hawaii attack melon. Because the mitigation of choice for Hawaii is irradiation treatment, which has a generic dose for all fruit flies occurring in Hawaii, Medfly as a pest on the pathway in the PRA is not an issue. One commenter raised issues that involve matters that are not within the regulatory authority of APHIS. Specifically, the commenter expressed concern that irradiation will lead to nutrient destruction and make foods unsafe to eat. The commenter also stated that APHIS should not approve or promote irradiation treatments because irradiation facilities will pose serious risks to the communities where they are built. We are not making any changes in response to this comment. The Food and Drug Administration
(FDA)has primary regulatory responsibility for ensuring that approved irradiation doses do not render foods unsafe to eat. FDA regulations (21 CFR 179.26) establish a limit of 1 kilogray for disinfestation of arthropod pests in fresh fruits and vegetables. All of the irradiation doses contained in this rule are significantly less than this approved safe dose limit. The safety of operations of irradiation facilities is regulated by the Nuclear Regulatory Commission (NRC). NRC ensures that such facilities are built and operated according to Federal regulations. To be licensed, the facility must have been designed with multiple fail-safe measures, and must establish extensive and well-documented safety procedures and worker training. With proper design and operating procedures, commercial irradiation facilities can be operated safely and without posing any significant radiation risk to workers or the public. Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document. Effective Date This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the **Federal Register** . Immediate implementation of this rule is necessary to provide relief to those persons who are adversely affected by restrictions we no longer find warranted. Making this rule effective immediately will allow Hawaii growers and others in the marketing chain to benefit from access to new markets in the continental United States as soon as possible. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the **Federal Register** . Executive Order 12866 and Regulatory Flexibility Act This final rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. This final rule will allow the interstate movement of mangosteen, dragon fruit, melon, pods of cowpea and its relatives, breadfruit, jackfruit, and fresh moringa pods from Hawaii after irradiation treatment. As a condition of entry, these fruits will have to meet certain other inspection and treatment requirements. This action will allow for the interstate movement of these fruits into the continental United States while continuing to provide protection against the introduction of quarantine pests. Tropical specialty fruit production in Hawaii has been increasing rapidly in recent years. 2 Hawaii's growers produced and sold an estimated 1.45 million pounds of tropical specialty fruit in 2006, which was approximately the same as the 2005 output of 1.46 million pounds. Sales in 2005 were the highest on record and 40 percent more than was produced and sold in 2004. 3 Sales in 2006 were valued at $2.6 million, 4 percent lower than in 2005 levels, but 34 percent higher than sales in 2004. 2 Tropical specialty fruits include: Abiu, atemoya, breadfruit, caimito, canistel, cherimoya, durian, jaboticaba, jackfruit, langsat, longan, loquat, litchi, mango, mangosteen, persimmon, poha, rambutan, rollina, sapodilla, soursop, starfuit, and white sapote. 3 The statistics in this paragraph are taken from USDA National Agricultural Statistics Service (NASS), “Hawaii Tropical Specialty Fruits,” released September 4, 2007. *http://www.nass.usda.gov/hi/fruit/tropfrt.pdf* . The final rule is not expected to result in significant economic impacts to mainland U.S. producers. The tropical specialty fruits included in this rule are not commercially grown in the continental United States. The final rule will benefit Hawaiian producers by providing a broader market for these fruits. Their movement from Hawaii will compete against imports from other countries, and the only impacts to U.S. producers will be the benefits that accrue to Hawaiian producers. Melons and cowpeas are produced in the continental United States, but effects of allowing the interstate movement of melons from Hawaii on U.S. mainland producers of these products are expected to be minimal. Melons The predominant U.S. melon varieties are cantaloupes, honeydews, and watermelons, for which the value of U.S. production was approximately $866 million in 2006 (table 1). Over 80 percent of melon production takes place in five states. California is the leading domestic producer of all melons, accounting for 32 percent of total acreage; followed by Georgia and Arizona, with 14 percent; Texas, with 11 percent; and Florida, with 10 percent. The United States is a net importer of melons. In 2006, the total value of melons imported into the United States was $352 million, compared to $119 million worth of melons exported. 4 Nearly all (99 percent) melon farmers have receipts of not more than $750,000 annually, and are therefore classified by the Small Business Administration
(SBA)as small entities. 4 World Trade Atlas 2006. Table 1.—Value of U.S. Melon Production, 2004-2006 Commodity 2004 2005 2006 Cantaloupe $322,188,000 $335,818,000 $340,677,000 Honeydews 92,133,000 91,569,000 90,600,000 Watermelons 313,217,000 445,917,000 434,861,000 Total 727,538,000 873,304,000 866,138,000 Source: National Agricultural Statistics Service. We do not know the quantity or type of melons that will be moved from Hawaii to the continental United States under this rule, but we do not expect the quantity to be significant in relation to our total domestic supply. For example, the most recent NASS data on the farm value of watermelon produced in Hawaii show a value of $2.9 million in 2006, which is less than 1 percent of the value of U.S. watermelon production overall and less than 1 percent of the value of U.S. melon imports of all types. Entry of Hawaii melons into markets in the continental United States is not expected to have a significant economic impact on mainland prices or production, especially given the irradiation treatment costs and transport costs that merchants of Hawaiian melons will have to bear. Moreover, depending on the type of melon, relative prices, and quality, shipments from Hawaii to the continental United States may at least partially substitute for imports, thereby further reducing any effects for mainland producers. Fresh Cowpea Pods The 2002 Census of Agriculture, the most recent year for which data are available, states that 151 farms harvested 13,651 acres of cowpeas in 2002. Cowpeas, also known as southern peas, blackeye peas, or crowder, are not routinely harvested as fresh cowpea pods but are allowed to dry before harvesting. Nearly all (99 percent) cowpea farmers have receipts of not more than $750,000 annually, and therefore are small entities according to SBA standards. Fresh cowpea pods are not sold commercially by producers in the continental United States; only dried cowpea pods are marketed. Since fresh cowpea pods are not generally used as a substitute for dried cowpeas, interstate movement of fresh cowpea pods from Hawaii will not significantly impact the mainland's commercial production of cowpeas. Rather, the fresh cowpea pods from Hawaii are expected to be sold as a fresh or frozen vegetable. Immature snapped cowpea pods are used in the same way as snap beans, often mixed with other foods. 5 Green cowpea seeds can be boiled as a fresh vegetable. 5 Alternative Field Crops Manual, “Cowpea,” *http://www.hort.purdue.edu/newcrop/afcm/cowpea.html* . The final rule is not expected to have a significant economic impact on a substantial number of small entities. The pest risk mitigation measures, including irradiation treatment, will allow the products to be safely moved interstate from Hawaii. Hawaii's producers will benefit by acquiring a broader market for these products, and any adverse effects for mainland producers will be minimal. Of the seven products addressed by this rule, only melon and cowpeas are also grown in the continental United States. Hawaii's share of the U.S. melon market is very small, and shipments to the mainland will be as likely to displace imports as they will be to compete directly with U.S. mainland production. Fresh cowpeas pods are not a product of the U.S. mainland. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities. Executive Order 12372 This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.) Executive Order 12988 This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule:
(1)Preempts all State and local laws and regulations that are inconsistent with this rule;
(2)has no retroactive effect; and
(3)does not require administrative proceedings before parties may file suit in court challenging this rule. National Environmental Policy Act An environmental assessment and finding of no significant impact have been prepared for this final rule. The environmental assessment provides a basis for the conclusion that the movement of tropical fruits from Hawaii to the continental United States under the conditions specified in this rule will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared. The environmental assessment and finding of no significant impact were prepared in accordance with:
(1)The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 *et seq.* ),
(2)regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508),
(3)USDA regulations implementing NEPA (7 CFR part 1b), and
(4)APHIS' NEPA Implementing Procedures (7 CFR part 372). The environmental assessment and finding of no significant impact may be viewed on the Regulations.gov Web site. 6 Copies of the environmental assessment and finding of no significant impact are also available for public inspection at USDA, room 1141, South Building, 14th Street and Independence Avenue, SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead at
(202)690-2817 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT . 6 Go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0050* . The environmental assessment and finding of no significant impact will appear in the resulting list of documents. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget
(OMB)under OMB control number 0579-0331. E-Government Act Compliance The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at
(301)734-7477. Lists of Subjects 7 CFR Part 305 Irradiation, Phytosanitary treatment, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements. 7 CFR Part 318 Cotton, Cottonseeds, Fruits, Guam, Hawaii, Plant diseases and pests, Puerto Rico, Quarantine, Transportation, Vegetables, Virgin Islands. Accordingly, we are amending 7 CFR parts 305 and 318 to read as follows: PART 305—PHYTOSANITARY TREATMENTS 1. The authority citation for part 305 continues to read as follows: Authority: 7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 136a; 7 U.S.C. 2.22, 2.80, and 371.3. 2. In § 305.31, paragraph (a), the table is amended by adding new entries, in alphabetical order, for “ *Aspidiotus destructor* ”, “ *Copitarsia decolora* ”, and “ *Pseudaulacaspis pentagona* ” to read as follows: § 305.31 Irradiation treatment of imported regulated articles for certain plant pests.
(a)* * * Irradiation for Certain Plant Pests in Imported Regulated Articles 1 Scientific name Common name Dose
(gray)* * * * * * * *Aspidiotus destructor* Coconut scale 150 * * * * * * * *Copitarsia decolora* (No common name) 100 * * * * * * * *Pseudaulacaspis pentagona* White peach scale 150 1 There is a possibility that some cut flowers could be damaged by such irradiation. See paragraph
(n)of this section. § 305.32 [Amended] 3. In § 305.32, paragraph (e)(3) is amended by adding the words “or an equivalent standard recognized by the Administrator” after the word “standards”. 4. Section 305.34 is amended as follows: a. By adding, in alphabetical order, new entries to the table in paragraph
(a)for breadfruit, cowpea pods (and its relatives), dragon fruit, jackfruit, mangosteen, melon, and moringa pods to read as set forth below. b. In the table in paragraph (a), by revising footnote 1 and adding a new footnote 2 to read as set forth below. c. By revising paragraphs (b)(6)(iii) and (b)(7) and the OMB citation at the end of the section to read as set forth below. § 305.34 Irradiation treatment of certain regulated articles from Hawaii, Puerto Rico, and the U.S. Virgin Islands.
(a)* * * Irradiation for Plant Pests in Hawaiian Fruits and Vegetables Commodity Dose
(gray)* * * * * Breadfruit 1 2 400 or 150. * * * * * Cowpea pods (and its relatives) 1 400. * * * * * Dragon fruit 1 2 400 or 150. * * * * * Jackfruit 1 2 400 or 150. * * * * * Mangosteen 1 2 400 or 150. * * * * * Melon 1 2 400 or 150. * * * * * Moringa pods 1 2 400 or 150. 1 Breadfruit, cowpea pods, dragon fruit, jackfruit, litchi, mangosteen, melon, moringa pods, and sweetpotato are also subject to the additional inspection and treatment requirements in paragraph (b)(7) of this section. 2 Breadfruit, dragon fruit, jackfruit, mangosteen, melon, and moringa pods moving to the continental United States for treatment under limited permit in accordance with the requirements of paragraph (b)(7)(ii) of this section must be treated with the 400 gray dose.
(b)* * *
(6)* * *
(iii)When designing the facility's dosimetry system and procedures for its operation, the facility operator must address guidance and principles from American Society for Testing and Materials
(ASTM)standards 19 or an equivalent standard recognized by the Administrator. 19 See footnote 4 of this subpart. (7)(i) *Certification on basis of treatment* . A certificate shall be issued by an inspector for the movement of articles from Hawaii that have been treated and handled in accordance with this section.
(A)To be certified for interstate movement under this section, litchi from Hawaii must be inspected in Hawaii and found free of the litchi fruit moth ( *Cryptophlebia spp.* ) and other plant pests by an inspector before undergoing irradiation treatment in Hawaii for fruit flies.
(B)To be certified for interstate movement under this section, sweetpotato from Hawaii must be inspected in Hawaii and found free of the gray pineapple mealybug ( *Dysmicoccus neobrevipes* ) and the Kona coffee-root knot nematode ( *Meloidogyne konaensis* ) by an inspector before undergoing irradiation treatment in Hawaii. In addition, sweetpotato from Hawaii to be treated with irradiation at a dose of 150 Gy must be sampled, cut, and inspected in Hawaii and found to be free of the ginger weevil ( *Elytrotreinus subtruncatus* ) by an inspector before undergoing irradiation treatment in Hawaii. Sampling, cutting, and inspection must be performed under conditions that will prevent any pests that may emerge from the sampled sweetpotatoes from infesting any other sweetpotatoes intended for interstate movement in accordance with this section.
(C)To be certified for interstate movement under this section, breadfruit and jackfruit from Hawaii must be inspected in Hawaii and found free of spiraling whitefly ( *Aleurodicus dispersus* ), inornate scale ( *Aonidiella inornata* ), red wax scale ( *Ceroplastes rubens* ), green scale ( *Coccus viridis* ), gray pineapple mealybug ( *Dysmicoccus neobrevipes* ), pink hibiscus mealybug ( *Maconellicoccus hirsutus* ), spherical mealybug ( *Nipaecoccus viridis* ), citrus mealybug ( *Pseudococcus cryptus* ), melon thrips ( *Thrips palmi* ) and signs of thrip damage before undergoing irradiation treatment in Hawaii at the 150 gray dose. Fruit receiving the 150 gray dose also must either receive a post-harvest dip in accordance with treatment schedule T102-c as provided in § 305.42(b) or originate from an orchard or growing area that was previously treated with a broad-spectrum insecticide during the growing season and a pre-harvest inspection of the orchard or growing area found the fruit free of any surface pests as prescribed in a compliance agreement. Post-treatment inspection in Hawaii is not required if the fruit undergoes irradiation treatment at the 400 gray dose. Regardless of irradiation dose, the fruit must be free of stems and leaves and must originate from an orchard that was previously treated with a fungicide appropriate for the fungus *Phytophthora tropicalis* during the growing season and the fruit must be inspected prior to harvest and found free of the fungus or, after irradiation treatment, must receive a post-harvest fungicidal dip appropriate for *Phytophthora tropicalis* .
(D)To be certified for interstate movement under this section, fresh pods of cowpea and its relatives from Hawaii must be inspected in Hawaii and found free of the cassava red mite ( *Oligonychus biharensis* ) and adults and pupae of the order Lepidoptera before undergoing irradiation treatment. The pods must be free of stems and leaves.
(E)To be certified for interstate movement under this section, dragon fruit from Hawaii presented for inspection must have the sepals removed and must be inspected in Hawaii and found free of gray pineapple mealybug ( *Dysmicoccus neobrevipes* ), pink hibiscus mealybug ( *Maconellicoccus hirsutus* ), and citrus mealybug ( *Pseudococcus cryptus* ) before undergoing irradiation treatment in Hawaii at the 150 gray dose. Fruit receiving the 150 gray dose also must either receive a post-harvest dip in accordance with treatment schedule T102-c as provided in § 305.42(b) or originate from an orchard or growing area that was previously treated with a broad-spectrum insecticide during the growing season and a pre-harvest inspection of the orchard or growing area found the fruit free of any surface pests as prescribed in a compliance agreement. Post-treatment inspection in Hawaii is not required if the fruit undergoes irradiation treatment at the 400 gray dose. Regardless of irradiation dose, the fruit must be free of stems and leaves.
(F)To be certified for interstate movement under this section, mangosteen from Hawaii must have the sepals removed and must be inspected in Hawaii and found free of gray pineapple mealybug ( *Dysmicoccus neobrevipes* ), pink hibiscus mealybug ( *Maconellicoccus hirsutus* ), citrus mealybug ( *Pseudococcus cryptus* ), and *Thrips florum* before undergoing irradiation treatment in Hawaii at the 150 gray dose. Fruit receiving the 150 gray dose also must either receive a post-harvest dip in accordance with treatment schedule T102-c as provided in § 305.42(b) or originate from an orchard or growing area that was previously treated with a broad-spectrum insecticide during the growing season and a pre-harvest inspection of the orchard or growing area found the fruit free of any surface pests as prescribed in a compliance agreement. Post-treatment inspection in Hawaii is not required if the fruit undergoes irradiation treatment at the 400 gray dose. Regardless of irradiation dose, the fruit must be free of stems and leaves.
(G)To be certified for interstate movement under this section, melon from Hawaii must be inspected in Hawaii and found free of spiraling whitefly ( *Aleurodicus dispersus* ) before undergoing irradiation treatment in Hawaii at the 150 gray dose. Fruit receiving the 150 gray dose also must either receive a post-harvest dip in accordance with treatment schedule T102-c as provided in § 305.42(b) or originate from an orchard or growing area that was previously treated with a broad-spectrum insecticide during the growing season and a pre-harvest inspection of the orchard or growing area found the fruit free of any surface pests as prescribed in a compliance agreement. Post-treatment inspection in Hawaii is not required if the fruit undergoes irradiation treatment at the 400 gray dose. Regardless of irradiation dose, melons must be washed to remove dirt and must be free of stems and leaves.
(H)To be certified for interstate movement under this section, moringa pods from Hawaii must be inspected in Hawaii and found free of spiraling whitefly ( *Aleurodicus dispersus* ), inornate scale ( *Aonidiella inornata* ), green scale ( *Coccus viridis* ), and citrus mealybug ( *Pseudococcus cryptus* ) before undergoing irradiation treatment in Hawaii at the 150 gray dose. Fruit receiving the 150 gray dose also must either receive a post-harvest dip in accordance with treatment schedule T102-c as provided in § 305.42(b) or originate from an orchard or growing area that was previously treated with a broad-spectrum insecticide during the growing season and a pre-harvest inspection of the orchard or growing area found the fruit free of any surface pests as prescribed in a compliance agreement. Post-treatment inspection in Hawaii is not required if the fruit undergoes irradiation treatment at the 400 gray dose.
(ii)*Limited permit* . A limited permit shall be issued by an inspector for the interstate movement of untreated articles from Hawaii into the continental United States for treatment in accordance with this section.
(A)To be eligible for a limited permit under this section, untreated litchi from Hawaii must be inspected in Hawaii and found free of the litchi fruit moth ( *Cryptophlebia* spp.) and other plant pests by an inspector.
(B)To be eligible for a limited permit under this section, untreated sweetpotato from Hawaii must be inspected in Hawaii and found free of the gray pineapple mealybug ( *Dysmicoccus neobrevipes* ) and the Kona coffee-root knot nematode ( *Meloidogyne konaensis* ) by an inspector. In addition, sweetpotato from Hawaii to be treated with irradiation at a dose of 150 Gy must be sampled, cut, and inspected in Hawaii and found free of the ginger weevil ( *Elytrotreinus subtruncatus* ) by an inspector. Sampling, cutting, and inspection must be performed under conditions that will prevent any pests that may emerge from the sampled sweetpotatoes from infesting any other sweetpotatoes intended for interstate movement in accordance with this section.
(C)To be eligible for a limited permit under this section, breadfruit and jackfruit from Hawaii must be free of stems and leaves and must originate from an orchard that was previously treated with a fungicide appropriate for the fungus *Phytophthora tropicalis* during the growing season and the fruit must be inspected prior to harvest and found free of the fungus or, after irradiation treatment, must receive a post-harvest fungicidal dip appropriate for *Phytophthora tropicalis* .
(D)To be eligible for a limited permit under this section, fresh pods of cowpea and its relatives from Hawaii must be free of stems and leaves and must be inspected in Hawaii and found free of the cassava red mite ( *Oligonychus biharensis* ) and adults and pupae of the order Lepidoptera. (Approved by the Officer of Management and Budget under control numbers 0579-0198, 0579-0281, and 0579-0331) PART 318—HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES 5. The authority citation for part 318 continues to read as follows: Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3. § 318.13-4f [Amended] 6. Section 318.13-4f is amended as follows: a. By adding the word “breadfruit,” before the words “Capsicum spp. (peppers)”. b. By adding the words “cowpea pods,” before the words “Cucurbita spp. (squash)”. c. By adding the word “dragon fruit,” before the word “eggplant”. d. By adding the word “jackfruit,” before the word “litchi”. e. By adding the words “mangosteen, melon, moringa pods,” before the word “papaya”. Done in Washington, DC, this 30th day of April 2008. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E8-9978 Filed 5-5-08; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0489; Directorate Identifier 2007-SW-59-AD; Amendment 39-15507; AD 2008-10-01] RIN 2120-AA64 Airworthiness Directives; Eurocopter France Model EC120B Helicopters AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule; request for comments. SUMMARY: We are adopting a new airworthiness directive
(AD)for Eurocopter France Model EC120B helicopters. 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 a helicopter. The aviation authority of France, with which we have a bilateral agreement, states in the MCAI: This Airworthiness Directive
(AD)follows upon the discovery of a batch of spherical thrust bearings which prove to be unfit for flight. This AD requires actions that are intended to address the unsafe condition caused by the manufacture of a batch of spherical thrust bearings that are not airworthy because they were not manufactured in accordance with an approved type design. Failure of a spherical thrust bearing during flight could cause the main rotor (M/R) system to separate from the helicopter, which would be catastrophic. DATES: This AD becomes effective on May 21, 2008. We must receive comments on this AD by July 7, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may get the service information identified in this proposed AD from American Eurocopter Corporation, 2701 Forum Drive, Grand Prairie, Texas 75053-4005, telephone
(972)641-3460, fax
(972)641-3527. *Examining the AD Docket:* You may examine the AD docket on the Internet at *http://www.regulations.gov* , or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the economic evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Gary Roach, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Regulations and Guidance Group, Fort Worth, Texas 76193-0111, telephone
(817)222-5130, fax
(817)222-5961. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Discussion The Direction generale de l'aviation civile France (DGAC), the Airworthiness Authority of the State of Design, has issued an MCAI for the affected helicopters in the form of DGAC Airworthiness Directive No. F-2006-040, dated February 15, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for this French-certificated helicopter. The MCAI states: This Airworthiness Directive
(AD)follows upon the discovery of a batch of spherical thrust bearings which prove to be unfit for flight. These are critical parts that retain the main rotor to the M/R hub and flexes to allow the M/R blades to pitch. We were previously informed by the manufacturer that all affected spherical thrust bearings had been recovered by Eurocopter France. However, we recently learned that some affected spherical thrust bearings have not been recovered and may still be installed on some helicopters. You may obtain further information by examining the MCAI and service information in the AD docket. Relevant Service Information Eurocopter has issued Eurocopter Alert Telex No. 04A006, dated January 27, 2006. The actions described in the MCAI are intended to correct the same unsafe condition as that identified in the alert telex. FAA's Determination and Requirements of This AD These helicopters have been approved by the aviation authority of France, and are approved for operation in the United States. Pursuant to our bilateral agreement with France, the State of Design, we have been notified of the unsafe condition described in the MCAI. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other helicopters of the same type design. Differences Between the AD and the MCAI We have reviewed the MCAI and agree with it. Therefore, there are no differences. FAA's Determination of the Effective Date An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because we were previously informed by the manufacturer that all affected spherical thrust bearings had been recovered by Eurocopter France. However, we recently learned that some affected spherical thrust bearings have not been recovered and may still be installed on some helicopters. Failure of a spherical thrust bearing during flight could cause the M/R system to separate from the helicopter, which would be catastrophic. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days. Comments Invited This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0489; Directorate Identifier 2007-SW-59-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD. Cost of Compliance We estimate that this AD will affect about 96 helicopters of U.S. Registry. However, the cost of the inspection to determine if one of the affected spherical thrust bearings is installed is negligible. For affected helicopters, we estimate that it will take about 4 work-hours per helicopter to remove and replace a spherical thrust bearing. The average labor rate is $80 per work-hour. Required parts will cost about $4,500 per helicopter. Based on these figures, we estimate the cost of this AD on U.S. operators to be $19,280 for the entire fleet, assuming that the 4 spherical thrust bearings are replaced, or $4,820 per helicopter. 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 an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket. 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: **2008-10-01 Eurocopter France:** Amendment 39-15507. Docket No. FAA-2008-0489; Directorate Identifier 2007-SW-59-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective on May 21, 2008. Other Affected ADs
(b)None. Applicability
(c)This AD applies to Model EC120B helicopters, with spherical thrust bearings, part number 7050A3622036, serial number LK0130, LK0142, LK0155, and LK0158, installed, certificated in any category. Reason
(d)The mandatory continued airworthiness information
(MCAI)states: This Airworthiness Directive
(AD)follows upon the discovery of a batch of spherical thrust bearings which prove to be unfit for flight. This AD requires actions that are intended to address the unsafe condition caused by the manufacture of a batch of spherical thrust bearings that are not airworthy because they were not manufactured in accordance with approved type design. Failure of a spherical thrust bearing during flight could cause the main rotor (M/R) system to separate from the helicopter, which would be catastrophic. Actions and Compliance
(e)Before further flight, remove any spherical thrust bearing, part number 7050A3622036, serial numbers LK0130, LK0142, LK0155, or LK0158, and replace it with an airworthy spherical thrust bearing. Differences Between the FAA AD and the MCAI
(f)None. Subject
(g)Air Transport Association of America
(ATA)Code 6220, Main Rotor Hub. Other FAA AD Provisions
(h)The following information also applies to this AD:
(1)Alternative Methods of Compliance (AMOCs): The Manager, Safety Management Group, Rotorcraft 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: Gary Roach, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Regulations and Guidance Group, Fort Worth, Texas 76193-0111, telephone
(817)222-5130, fax
(817)222-5961.
(2)Airworthy Product: Use only FAA-approved corrective actions. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent) if the State of Design has an appropriate bilateral agreement with the United States. You are required to ensure the helicopter 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
(i)Mandatory Continuing Airworthiness Information Direction generale de l'aviation civile Airworthiness Directive No. F-2006-040, dated February 15, 2006, contains related information. Issued in Fort Worth, Texas, on April 23, 2008. David A. Downey, Manager, Rotorcraft Directorate, Aircraft Certification Service. [FR Doc. E8-9799 Filed 5-5-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0490; Directorate Identifier 2008-SW-26-AD; Amendment 39-15509; AD 2008-10-03] RIN 2120-AA64 Airworthiness Directives; Bell Helicopter Textron Model 204B, 205A, 205A-1, 205B, 210, 212, 412, 412CF, and 412EP Helicopters AGENCY: Federal Aviation Administration, DOT. ACTION: Final rule; request for comments. SUMMARY: This amendment adopts a new airworthiness directive
(AD)for the specified Bell Helicopter Textron
(Bell)model helicopters. This action requires certain checks and inspections of each tail rotor blade assembly (T/R blade) at specified intervals and repairing or replacing, as applicable, any unairworthy T/R blade. This amendment is prompted by three failures of a T/R blade occurring during flight and a recent incident of a cracked T/R blade discovered during a scheduled visual inspection. The actions specified in this AD are intended to detect damage to a T/R blade that could lead to cracking of a T/R blade and subsequent loss of control of the helicopter. DATES: Effective May 21, 2008. Comments for inclusion in the Rules Docket must be received on or before July 7, 2008. ADDRESSES: Use one of the following addresses to submit comments on this AD: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may get the service information identified in this AD from Bell Helicopter Textron, Inc., P.O. Box 482, Fort Worth, Texas 76101, telephone
(817)280-3391, fax
(817)280-6466. *Examining the Docket:* You may examine the docket that contains the AD, any comments, and other information 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 Docket Operations office (telephone
(800)647-5527) is located in Room W12-140 on the ground floor of the West Building at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Michael Kohner, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Rotorcraft Certification Office, Fort Worth, Texas 76193-0170, telephone
(817)222-5447, fax
(817)222-5783. SUPPLEMENTARY INFORMATION: A proposal to amend 14 CFR part 39 to include an AD for the specified model helicopters was published in the **Federal Register** as Docket No. FAA-2006-26219, Directorate Identifier 2004-SW-49-AD on November 2, 2006 (71 FR 64484). That Notice of Proposed Rulemaking
(NPRM)was prompted by eight reports of fatigue cracking of T/R blades installed on Bell Model 212 and 412 helicopters (three failures on the Bell Model 212 and five failures on the Bell Model 412) with a blade assembly, part number (P/N) 212-010-750-009, -105, and -107. Six of the cracks initiated between blade stations 30 to 33.5; one crack initiated at blade station 21.9; and one crack initiated at blade station 27.6. Three of these T/R blades failed during flight and all were installed on Bell Model 412 series helicopters. In one of the in-flight failures, the T/R blade failed due to a fatigue crack that initiated in the blade skin from a nick .060 inches long by .008 inches deep. The initial damage was above the maximum allowable damage limit for the blade skin provided in the maintenance manual. That failed blade had accumulated 1,478 hours time-in-service (TIS). In another in-flight failure, a section of the T/R blade separated from the helicopter during cruise flight at 5,500 feet. The helicopter was reported to have violently turned down and to the left. The helicopter “leveled out” at approximately 1,000 feet before setting down in the water. The blade failed due to a cracked stainless steel leading edge spar that originated from a corrosion pit .001 inches deep. The corrosion area extended .003 inches along the surface of the origin location. That blade had accumulated 4,643 hours TIS. In the third in-flight failure, sanding on the spar and chem-milling was found during a post-accident investigation. The crack had initiated at blade station 21.9 and the blade had accumulated 1,232 hours TIS. Also, the following blades were found cracked: Model Year P/N 212-010-750- Hours TIS Blade station (in.) Crack length (in.) Initial damage part and type Initial damage size 212 1973 −009 3,224 32.2 6.5 Skin—Corrosion .030 in. wide. 212 1985 −009 279 31.5 13.0 Spar—Manufacturing Notch .090 in. wide. 212 1991 −105 423 30.8 8.0 Skin—Non Sharp Dent .75 in. long. 412 1990 −009 3,876 27.6 8.0 Skin—Corrosion Unknown. 412 1996 −105 1,235 30.0 8.3 Skin—Scratch .45 in. long by .005 in. deep. The NPRM proposed to require the following interim actions until either a more rigorous inspection is developed or a new blade that is more damage tolerant is designed: • Before each start of the engines, visually checking each T/R blade for a crack; • Within 25 hours TIS or 15 days, whichever occurs first, and thereafter at intervals not to exceed 25 hours TIS or 15 days, whichever occurs first, cleaning and visually inspecting each T/R blade for a crack, corrosion, nick, scratch, or dent using a 3-power or higher magnifying glass and a bright light; • If certain damage is found, inspecting for a crack or corrosion using a 10-power or higher magnifying glass and measuring the depth of any damage; and • Before further flight, replacing any cracked T/R blade and repairing or replacing any otherwise unairworthy T/R blade. Since the issuance of that NPRM, we were notified that a crack was found on another T/R blade, P/N 212-010-750-105 FM, installed on a Bell Model 412EP helicopter. The crack was discovered while the helicopter was on the ground during a scheduled visual inspection. The T/R blade is now being examined at the manufacturer's field investigation lab. The crack is located approximately in the center of the TR blade span and extends across the majority of the chord. The T/R blade had accumulated 2,076 hours TIS. Because P/N 212-010-750-105 FM was not included in the applicability of the NPRM, and because a crack growth analysis using the striation count data from one of the failed T/R blades predicted a crack propagation rate of approximately 77 hours TIS from damage initiation to blade failure, we will withdraw that NPRM and issue this AD as a Final rule; request for comments. This AD contains the proposed requirements from the NPRM; however, we've included additional P/Ned blades and made other changes based on the comments to the NPRM. In response to the NPRM we received several comments from 4 commenters; the manufacturer, the Canadian National Defence Headquarters, and 2 individuals. Two commenters suggest changing the compliance time for the proposed actions. One of the commenters suggests changing the proposed initial inspection from 25 hours TIS or 15 days to 25 hours TIS or 30 days and changing the recurring inspection from 25 hours TIS or 15 days to 25 hours TIS or 30 days. The other commenter believes that a visual inspection before the first flight of each day would be adequate and that a limit of 10 hours between visual inspections in any one day could be added. The same commenter states that it is not always practical ( *e.g.* carrying a suitable safe ladder for conducting an adequate inspection and carry passengers) and might also be hazardous ( *e.g.* doing an inspection from an offshore oil field platform where there is no ladder or stand available or where there is restricted space and the possibility of high wind speeds) to do a visual inspection before each engine start. Finally, one commenter, the manufacturer, states that it is impractical to require inspection of the T/R blades before each flight or engine start unless we are referring to a ground-level visual inspection because a ladder, which is not available in the field, would be required for a hands-on inspection. It recommends an inspection in accordance with the maintenance manual. The manufacturer further recommends an inspection for more than just “cracks”, that is, any damage beyond limits in accordance with the published schedule and requirements in the maintenance manual. We concur with the recommendation to change the initial and recurring inspections from 25 hours TIS or 15 days to 25 hours TIS or 30 days. The 15-day interval was originally proposed because a corrosion pit was the initiation point for one of the failures and that interval is consistent with FAA advisory material relating to the detection of corrosion. Since the proposal was published, we have reevaluated the need for the interval and determined that a 30-day interval is adequate for this inspection and the AD is revised accordingly. We do not concur that a visual inspection before the first flight of each day would be adequate and that a limit of 10 hours between visual inspections in any one day should be added. Additionally, we do not agree with the manufacturer that a 60-day interval would be appropriate because of the quick degradation in the T/R blade strength. However, we do agree that it is not always practical to require a detailed visual inspection of the T/R blades using a ladder before each flight or engine start. The proposed owner/operator (pilot) check was only intended to be a “walk around” check to detect any large cracks. Although the Canadian commenter states that their inspection from the ground is not considered effective, we have received reports that two cracked blades were discovered during checks performed from the ground. The initial and recurring inspections performed by a mechanic are detailed, up-close inspections. One commenter also suggests that instead of requiring a mandatory daily log book entry stating compliance with the AD that “the blade inspection be made a required preflight checklist item with no daily log book entry required.” If a logbook entry is required, the commenter suggests that it be a separate entry made at the time the 25 hour is signed off. We have determined that this critical check needs to be mandated. This determination is based on the critical nature of this failure and that the length of a crack is predicted to grow quickly once it is detectable based on the service history of these T/R blades. All required inspections, including the pilot checks specifically approved by this AD, must be recorded at the time they are performed. That recording evidences that the required AD actions have been performed. If it is not recorded, the aircraft is not in compliance with the AD and is unairworthy. In addition to comments regarding the inspection times and types, the manufacturer provided other comments to the NPRM. Those comments and our responses follow: Comment Response The AD lists a 1991 Model 212 with a .75″ crack * * * that Bell questions since they have no conclusive technical data on it. They also question our references to a 77 hour crack propagation from striation count and state that the 77 hour value is actually from a crack growth analysis that simply includes striation count data. Bell also states that they are aware of only 4, not 8, existing M205Bs that are of FAA certified configuration The cracked T/R blade in question is found in the FAA service difficulty database. An approximate 8-inch crack was found in the T/R blade installed on a Bell Model 212 helicopter during a daily inspection. The crack was located 20.25 inches inboard from the tip of the T/R blade running through a .75 inch long smooth dent. The part number of the T/R blade was 212-010-750-105 with a total time of 423 hours. We agree with the comment about the reference to the 77 hour crack propagation and the number of existing M205B helicopters and have revised this AD accordingly. The listed tail rotor dash numbers appear to be incorrect. The Model 204B does not use the 212-010-750 tail rotor blade and there also appears to be several of the later dash numbers missing from various models While the standard Model 204B helicopter may not use this particular T/R blade, the 212-010-750 T/R blade may be on a modified Model 204B helicopter that does use this blade. To assure that we have covered all affected blades, the applicability now encompasses all affected dash-numbered T/R blades. Recommend changing areas called out for special attention to Stations 25.0 to 35.0 (both sides) for damage/corrosion and include inboard blade butt area surrounding balance weights/screws for cracks Agree with this change and have revised this AD accordingly. There have not been eight reported failures, there have been three. All others are reported cracks in the blade skin, not “failures.” The term “failure” can be misleading A crack in a blade makes that blade unable to safely perform its intended function. Thus, there are now 9 T/R blades that meet that criteria. Bell objects to our statement in the NPRM that “The requirements of the proposed AD would be interim actions until either a more rigorous inspection is developed or a new blade that is more damage tolerant is designed.” Bell states “Although we are in concept discussions with DND, completion and certification of this blade is many months away and could be misleading to the commercial community.” As we understand this objection by the manufacturer, it believes that a redesigned blade is unnecessary and that the current inspections are adequate. We do not agree. Based on the fracture analysis, once the crack reaches a size that is detectable by inspection, it is predicted to grow quickly. Therefore, for the affected T/R blades, it is critical to find a crack or damage that could lead to a crack at the earliest opportunity. The service history of these affected T/R blades has shown that the current inspections are inadequate to reveal these cracks before blade failure. One T/R blade failed and another one cracked because of manufacturing damage on the inside of the T/R blade. That damage was not initially detectable by external inspection. Another T/R blade failed during flight due to cracking that initiated from a corrosion pit in the leading edge spar that was too small to be readily detected. Therefore, replacing the affected T/R blades with a redesigned, more damage-tolerant T/R blade is anticipated as terminating action for the requirements of this AD. Another commenter, the Canadian National Defence Headquarters, views the proposed actions as a “good first step” but offers several recommendations. Those recommendations and our responses follow: Recommendation Response “Promulgate to other aviation regulation agencies worldwide because there are many more airframes affected than the ‘388 helicopters of U.S. registry’.” Our standard practice is to send our ADs to aviation authorities with which we have a bilateral agreement. In turn, it is then at their discretion whether or not to follow up with similar action. Adjust the inspection frequency as a function of the operations environment, e.g., a 12.5 hours inspection frequency using the 10x magnification (noting that deployments of small numbers of aircraft take the minimum support equipment required) visual inspection for operations using “harsh & rough” landing fields and an interval of 25 hours inspection for paved landing fields We agree that the risk of incurring damage in the T/R blade would be less for those helicopters operated on paved landing fields versus “harsh & rough” landing fields. Defining and enforcing such an inspection interval, however, would be difficult because helicopters operate in so many varied environments. We believe the commet to use a 10-power magnifying glass may be a typographical error because the Canadian National Defense uses a 2-power magnifying glass and a good source of light every 12.5 hours TIS for the visual inspection of the T/R blades on their Model 412CF helicopters. Regardless, we have determined that a 25-hour TIS inspection using a 3x or higher magnifying glass is best for the overall safe operation of these helicopters in the U.S. Specify that the visual check be carried out by an appropriately qualified person We do not believe that further information regarding who can carry out this visual check is necessary. The visual check is only intended to detect a large-scale crack and we believe an owner/operator (pilot) is qualified to perform this “walk-around” function. Define what constitutes a “bright light” The illumination levels are historically not given for visual inspections that are mandated by an AD. We believe what constitutes a bright light can be adequately determined by the individuals who are qualified to do the inspection. We also did not want to create additional calibration and recordkeeping requirements. Implement damage mapping as a means to increase detectability of new damage and decrease the maintenance burden Inspection of the T/R blade records and recording any damage found within the repair limits are in the maintenance instructions for the T/R blade inspection on the applicable helicopters. These steps are currently in the applicable maintenance procedures. Operators are free to implement such mapping if they believe it will reduce their maintenance burden. Carry out a Type 1, Method C, Level III dye-penetrant inspection in cases where difficulties are encountered in determining the presence of a crack by visual inspection We believe the requirement to use of a 10-power magnifying glass is adequate. We have reviewed the following Bell documents: • Operations Safety Notice OSN 205-02-37, OSN 205B-02-10, OSN 212-02-39, OSN 412-02-25, OSN 412CF-02-05, and OSN UH-1H-II-02-3, dated August 27, 2002. These Operations Safety Notices apply to all owners and operators of Bell 205, 205B, 212, 412, 412CF, and UH-1H-II helicopters and were written to remind operators of the following: • The importance of accomplishing a complete inspection of the T/R blades at specified inspection intervals; • That the blades must be cleaned in order to perform an adequate visual inspection to determine their condition; and • That maintenance manuals and component repair and overhaul manuals are to be consulted for damage limits and repair criteria as required. • Alert Service Bulletin No. 412CF-03-20, dated February 6, 2003, which applies to Model 412CF helicopters and provides instructions for doing a visual inspection of certain T/R blades immediately and every 25 hours TIS in accordance with the Model 412CF maintenance manual and instructions for sending the affected tail rotor blade to DND “Calgary Supply Center” for refinishing and reidentification. • Bell Maintenance Document C-12-146-000/MF-001, Mod 4, dated February 12, 2004, which applies to Model 412CF helicopters and specifies a tail rotor blade damage records check and a visual inspection for dents, nicks, cracks, paint chips, or blisters using a 2-power magnifying glass and a good source of light in specified areas of the tail rotor blades (reference 64-00-00, section 64-38, page 42). This unsafe condition is likely to exist or develop on other helicopters of these same type designs. Therefore, this AD is being issued to detect damage to a T/R blade that could lead to cracking of a T/R blade and subsequent loss of control of the helicopter. This AD requires: • Before each start of the engines, visually checking each T/R blade for a crack. An owner/operator (pilot) holding at least a private pilot certificate may perform this visual check and must enter compliance with paragraph
(a)of this AD into the aircraft maintenance records in accordance with 14 CFR 43.11 and 91.417(a)(2)(v). A pilot may do this check because it requires no special tools and can be performed equally well by a pilot or a mechanic. • Within 25 hours TIS or 30 days, whichever occurs first, unless accomplished previously, and thereafter at intervals not to exceed 25 hours TIS or 30 days, whichever occurs first, cleaning and visually inspecting the T/R blade skins, leading edge spar, doublers, grip plates, and trailing edge for a crack, corrosion (may be indicated by blistering, peeling, flaking, bubbling, or cracked paint) and any other damage (including a nick, scratch, or dent) using a 3x or higher magnifying glass. • If certain damage is found, inspecting the affected area using a 10-power or higher magnifying glass and measuring the depth of the damage. • Before further flight, repairing or replacing, as applicable, any unairworthy T/R blade. The short compliance time involved is required because a cracked or damaged T/R blade creates an unsafe condition that can adversely affect the structural integrity and controllability of the helicopter. Therefore the required actions within the specified short time intervals require that this AD be issued immediately. Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days. We estimate that this AD will affect 384 helicopters of U.S. registry. There are approximately 184 Model 205A and 205A-1 helicopters, 4 Model 205B helicopters, 101 Model 212 helicopters, 80 Model 412, 412CF, and 412EP helicopters, and 15 modified Model 204B helicopters. Each visual check will take .125 hours, each visual inspection will take .5 hours, and 6 hours to remove and replace each T/R blade assembly, if necessary. The average labor rate is $80. Replacement parts will cost $11,243 for each T/R blade assembly. Based on these figures, the estimated cost impact of the AD for all of the affected models will be $1,828,855 assuming an average of 600 hours TIS per year for each helicopter resulting in 365 visual checks, 24 inspections, and 5 T/R blade assembly replacements for the total fleet. Comments Invited This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2008-0490; Directorate Identifier 2008-SW-26-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD. Using the search function of our docket Web site, you can find and read the comments to any of our dockets, including the name of the individual who sent the comment. You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78). Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared an economic evaluation of the estimated costs to comply with this AD. See the AD docket to examine the economic evaluation. 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. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (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. Section 39.13 is amended by adding a new airworthiness directive to read as follows: **2008-10-03 Bell Helicopter Textron:** Amendment 39-15509. Docket No. FAA-2008-0490; Directorate Identifier 2008-SW-26-AD. Applicability The following model helicopters, with the specified tail rotor blade assembly (T/R blade) installed, certificated in any category: Helicopter model With T/R blade, part number (P/N) 204B, 205A, 205A-1, 212, 412, 412CF, and 412EP 212-010-750-(all dash numbers). 205B 212-010-750-(all dash numbers). 212-015-501-(all dash numbers). 210 210-010-001-(all dash numbers). 212-010-750-(all dash numbers). Compliance Required as indicated. To detect any damage in a T/R blade, prevent cracking of a T/R blade leading to failure from static overload, and subsequent loss of control of the helicopter, accomplish the following:
(a)Before each start of the engines, visually check both sides of each T/R blade for a crack. An owner/operator (pilot) holding at least a private pilot certificate may perform this visual check and must enter compliance with this paragraph into the aircraft maintenance records in accordance with 14 CFR 43.11 and 91.417(a)(2)(v).
(b)Within 25 hours time-in-service
(TIS)or 30 days, whichever occurs first, unless accomplished previously, and thereafter at intervals not to exceed 25 hours TIS or 30 days, whichever occurs first:
(1)Clean each T/R blade by hand using a mild degreaser and water to remove soot and grime on both sides of the blade using a coarse, loosely woven cotton cloth in a spanwise direction. Use a cloth with a color that contrasts with the color of the T/R blade so that a snag will be visible.
(2)Using a 3-power or higher magnifying glass and a bright light, visually inspect the T/R blade skins, leading edge spar, doublers, grip plates, and trailing edge for a crack, corrosion (may be indicated by blistering, peeling, flaking, bubbling, or cracked paint) and any other damage (including a nick, scratch, or dent). See Figure 1 of this AD. Pay particular attention to both sides of the T/R blade in the area located 16 to 26 inches from the T/R blade tip (blade station 25 to 35—the T/R blade tip is located at blade station 51) and to the inboard blade butt area near the attachment of the external balance weights and screws. Also pay particular attention to any blade surface that was snagged by the cloth, as that may be an indication of a crack or paint chip that could lead to corrosion. BILLING CODE 4910-13-P ER06MY08.182 BILLING CODE 4910-13-C
(3)If any blistering, peeling, flaking, bubbling, or cracked paint is detected, remove the paint from the affected area and visually inspect the affected area for corrosion or a crack using a 10-power or higher magnifying glass. If any corrosion is found, measure the depth of the corrosion (a digital optical micrometer is one tool that can be used for this measurement).
(4)If a nick, scratch, or dent is found, visually inspect for a crack using a 10-power or higher magnifying glass and measure the depth of the damage (a digital optical micrometer is one tool that can be used for this measurement).
(c)Before further flight:
(1)Replace any T/R blade that has a crack with an airworthy blade.
(2)Replace any T/R blade that has any corrosion, nick, scratch, dent, or other damage that exceeds any maximum repair limit with an airworthy blade. Note 1: The maximum repair limits are specified in the applicable maintenance manual.
(3)Repair or replace with an airworthy blade any T/R blade that has any corrosion, nick, scratch, dent or other damage that is within the maximum repair limits. Note 2: The repair procedures are specified in the applicable maintenance manual and component repair and overhaul manuals.
(d)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Contact the Manager, Rotorcraft Certification Office, Rotorcraft Directorate, FAA, ATTN: Michael Kohner, Aviation Safety Engineer, Fort Worth, Texas 76193-0170, telephone
(817)222-5447, fax
(817)222-5783, for information about previously approved alternative methods of compliance.
(e)This amendment becomes effective on May 21, 2008. Issued in Fort Worth, Texas, on April 22, 2008. Mark R. Schilling, Acting Manager, Rotorcraft Directorate, Aircraft Certification Service. [FR Doc. E8-9790 Filed 5-5-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0371; Directorate Identifier 2007-NM-269-AD; Amendment 39-15511; AD 2008-10-05] RIN 2120-AA64 Airworthiness Directives; BAE Systems (Operations) Limited Model BAe 146 and Model Avro 146-RJ 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 service history of incidents and accidents involving transport category turbojet airplanes without leading edge high lift devices. This service history shows that even small amounts of frost, ice, snow, or slush on the wing leading edges or forward upper wing surfaces can cause an adverse change in the stall speeds and stall characteristics, and can negate the protection provided by a stall protection system. While there have been no accidents or incidents related to wing contamination associated with the BAE Systems (Operations) Limited Model BAe 146 and Model Avro 146-RJ airplanes, these airplanes are also transport category turbojet airplanes without leading edge high lift devices, and therefore may be similarly sensitive to small amounts of wing contamination. This AD requires revising the airplane flight manual to include a new cold weather operations limitation. We are issuing this AD to prevent possible loss of control on takeoff resulting from even small amounts of frost, ice, snow, or slush on the wing leading edges or forward upper wing surfaces. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective June 10, 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: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1175; 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 December 26, 2007 (72 FR 72968). That NPRM proposed to require revising the airplane flight manual to include a new cold weather operations limitation. Comments We gave the public the opportunity to participate in developing this AD. We have considered the comment received. Request to Withdraw NPRM or Revise Paragraph
(e)BAE Systems (Operations) Limited, type certificate holder for Model BAe 146 and Model Avro 146-RJ airplanes, states that it has reviewed the NPRM and is preparing advice in an expanded flight crew operations manual
(FCOM)to explain the importance of a “clean wing” prior to takeoff. The information in that manual, including the use of tactile checks, permits operators and de-/anti-icing service providers to develop procedures to suit local arrangements. BAE Systems states that this approach is consistent with other regional aircraft types for which airplane flight manual
(AFM)revisions have not been mandated. While BAE Systems fully supports safety initiatives aimed at minimizing wing contamination, BAE Systems asserts that a safety concern does not exist on the Model BAe 146 and Model Avro 146-RJ airplanes for the following reasons: • No accidents or incidents due to upper surface contamination have occurred on Model BAe 146 and Model Avro 146-RJ airplanes (this information was not included in the Summary of the NPRM). • The different wing shape on Model BAe 146 and Model Avro 146-RJ airplanes make them less susceptible to the effects of leading edge and upper surface contamination. • There is no evidence that small/visually imperceptible amounts of ice on the wing of these airplanes would lead to loss of control during takeoff. BAE Systems asks that if we amend 14 CFR part 39 to require the additional limitations in the AFM, we revise paragraph
(e)“Reason” of the NPRM to include the words: “Whilst there is no service history that indicates the BAe146 and Avro 146-RJ will be similarly affected. * * *” We acknowledge BAE Systems' concerns, and partially agree with its requests. We agree that no accidents or incidents due to upper surface contamination have occurred on Model BAe 146 and Model Avro 146-RJ airplanes. We have revised the AD to include that acknowledgement in the Summary and in paragraph (e). However, we disagree that a safety concern does not exist on the Model BAe 146 and Model Avro 146-RJ airplanes and therefore, by implication, that we should withdraw the NPRM. Section 39.1 of the Federal Aviation Regulations (14 CFR 39.1) states: “This part prescribes airworthiness directives that apply to aircraft * * * when—
(a)An unsafe condition exists in a product; and
(b)That condition is likely to exist or develop in other products of the same type design.” The Model BAe 146 and Model Avro 146-RJ airplanes share common type design characteristics with airplanes that have been involved in takeoff accidents and incidents resulting from small amounts of wing leading edge or upper surface contamination. The accident and incident history shows that transport category turbojet airplanes without leading edge high lift devices have been involved in a number of takeoff accidents and incidents where undetected upper wing ice contamination has been cited as the probable cause or sole contributing factor. Although BAE Systems contends that differences between the wings of the Model BAe 146/Avro 146-RJ airplanes and the wings of the airplane types involved in the accidents and incidents make the Model BAe 146/Avro 146-RJ airplanes less susceptible to the effects of wing leading edge and upper surface contamination, BAE Systems has not supplied data that directly address the FAA's safety concern. We evaluated all relevant information, including information submitted by BAE Systems before and after issuance of the NPRM, and determined the unsafe condition is likely to exist or develop in Model BAe 146 and Model Avro 146-RJ airplanes. BAE Systems' proposal to include advice in an expanded FCOM to explain the importance of a clean wing prior to takeoff, while commendable, is insufficient to address the potential unsafe condition. Mandatory tactile checks of the wing leading edges and upper surfaces in potential ground icing conditions are needed to address the potential unsafe condition, and advice provided in an FCOM is not mandatory. An airplane operating limitation provided in the AFM is necessary to ensure the tactile check is performed. Contrary to BAE Systems' assertion that their proposed FCOM approach is consistent with the action taken on some other regional airplane types, the only instances where similar operating limitations have not been instituted on transport category turbojet airplanes without leading edge high lift devices have been where the airplane manufacturer provided data showing that adequate safety margins would be retained for takeoffs with small amounts of undetected wing upper surface contamination. For these reasons we do not find it necessary to withdraw the NPRM and we have not changed the AD in this regard. However, under the provisions of paragraph (g)(1) of the AD, we will consider requests for approval of an alternative method of compliance if sufficient data are submitted to substantiate that the alternative method would provide an acceptable level of safety. Request to Revise Number of Airplanes of U.S. Registry BAE Systems states that, although the “Costs of Compliance” section gives realistic costs for revising the AFM, it gives an incorrect number of airplanes of U.S. Registry. The NPRM states that there is only one affected airplane on the U.S. Register; BAE Systems understands that the FAA registry currently shows up to 25 examples of the affected airplane types. We agree with BAE systems that there are additional U.S.-registered airplanes affected by this AD. A detailed review shows that several airplanes that appear in certain databases to be U.S.-registered are instead registered in other countries. Certain other airplanes have been scrapped. Therefore, although there are not 25 U.S.-registered airplanes, we do agree that there is more than 1 airplane of U.S. registry. Therefore, we have revised the Costs of Compliance to include the costs for the 10 airplanes that we estimate are on the U.S. Register. Request to Include Costs for Ongoing Actions BAE Systems also states that the “Costs of Compliance” section excludes any assessment of the ongoing cost to operators for the time taken to conduct the visual and tactile pre-flight inspections. BAE Systems notes that access to the high wings on these airplanes requires a tall ladder and that the inspection will take approximately 30 minutes. BAE Systems estimates that the conditions where tactile checks would be required could exist up to 60 days per year, depending on the operator's geographical location and route structure, which could cause U.S. operators to incur up to 240 additional work hours per airplane per year. We disagree with adding costs for the pre-flight check to the AD. We recognize that when accomplishing the requirements of any AD, operators might incur costs in addition to the direct costs that are reflected in the cost analysis presented in the AD preamble. However, the cost analysis in AD rulemaking actions typically does not include these incidental costs. In the case of this AD, for example, the requirements are to revise the AFM to include certain information. Further, because ADs require specific actions to address specific unsafe conditions, they appear to impose costs that would not otherwise be borne by operators. However, because of the general obligation of operators to maintain and operate their airplanes in an airworthy condition, this appearance is deceptive. Attributing those costs solely to the issuance of this AD is unrealistic because, in the interest of maintaining and operating safe airplanes, prudent operators would accomplish the required actions even if they were not required to do so by the AD. We have not changed the AD in this regard. Explanation of Change to Summary We have revised the Summary to clarify that not all airplanes are equipped with a stall protection system (by using the word “a” instead of “the”). We have also clarified that the affected airplanes are transport category turbojet airplanes without leading edge high lift devices, and therefore may be similarly sensitive to small amounts of wing contamination. Conclusion We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the change described previously. We determined that this change will not increase the economic burden on any operator or increase the scope of the AD. Costs of Compliance This AD affects about 10 products of U.S. registry. We estimate that it takes about 1 work-hour per product to comply with this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the AD on U.S. operators to be $800, 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 that this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket. 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: **2008-10-05 BAE Systems (Operations) Limited (Formerly British Aerospace Regional Aircraft):** Amendment 39-15511. Docket No. FAA-2007-0371; Directorate Identifier 2007-NM-269-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective June 10, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to all BAE Systems (Operations) Limited Model BAe 146-100A, -200A, and -300A series airplanes, certificated in any category; and all Model Avro 146-RJ70A, 146-RJ85A, and 146-RJ100A airplanes, certificated in any category. Subject
(d)Air Transport Association
(ATA)of America Code 30: Ice and Rain Protection. Reason
(e)This AD results from service history of incidents and accidents involving transport category turbojet airplanes without leading edge high lift devices, that shows that even small amounts of frost, ice, snow, or slush on the wing leading edges or forward upper wing surfaces can cause an adverse change in the stall speeds and stall characteristics, and can negate the protection provided by a stall protection system. While there have been no accidents or incidents related to wing contamination associated with the BAE Systems (Operations) Limited Model BAe 146 and Model Avro 146-RJ airplanes, these airplanes are also transport category turbojet airplanes without leading edge high lift devices, and therefore may be similarly sensitive to small amounts of wing contamination. We are issuing this AD to prevent possible loss of control on takeoff resulting from even small amounts of frost, ice, snow, or slush on the wing leading edges or forward upper wing surfaces. Actions and Compliance
(f)Within 14 days after the effective date of this AD, revise the Limitations Section of the Airplane Flight Manual
(AFM)to include the following statement. This may be done by inserting a copy of this AD in the AFM. “1. Takeoff is prohibited with frost, ice, snow, or slush adhering to the wings, control surfaces, engine inlets, or other critical surfaces. 2. A visual and tactile (hand on surface) check of the wing leading edge and the wing upper surface must be performed to ensure the wing is free from frost, ice, snow, or slush when the outside air temperature is less than 42 degrees F (6 degrees C), or if it cannot be ascertained that the wing fuel temperature is above 32 degrees F (0 degrees C); and a. There is visible moisture (rain, drizzle, sleet, snow, fog, etc.) present; or b. Water is present on the wing; or c. The difference between the dew point and the outside air temperature is 5 degrees F (3 degrees C) or less; or d. The atmospheric conditions have been conducive to frost formation.” Note 1: When a statement identical to that in paragraph
(f)of this AD has been included in the general revisions of the AFM, the general revisions may be inserted into the AFM, and the copy of this AD may be removed from the AFM. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)Alternative Methods of Compliance (AMOCs): The Manager, International Branch, Transport Airplane Directorate, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1175; 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)None. Material Incorporated by Reference
(i)None. Issued in Renton, Washington, on April 8, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-9876 Filed 5-5-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2007-0043] RIN 1625-AA09 Drawbridge Operation Regulations; Arkansas Waterway, Little Rock, AR, Operation Change AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard is revising the drawbridge operations for the Baring Cross Railroad Drawbridge across the Arkansas Waterway at Mile 119.6 at Little Rock, Arkansas, to reflect the actual procedures currently being followed. The revised regulation accurately depicts where the drawbridge operator is located and that the bridge, which is remotely operated, is equipped with a Photoelectric Boat Detection System. DATES: This rule is effective on June 5, 2008. ADDRESSES: Comments and related materials received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket USCG-2007-0043 and are available online at *http://www.regulations.gov.* This material is also available for inspection or copying at two locations: the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays and the COMMANDER (dwb), Eighth Coast Guard District Bridge Branch, 1222 Spruce Street, Room 2.107f, St. Louis, MO 63103-2832, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call Mr. Roger K. Wiebusch, Bridge Administrator,
(314)269-2378. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Regulatory Information On January 9, 2008, we published a notice of proposed rulemaking
(NPRM)entitled Drawbridge Operation Regulations; Arkansas Waterway, Little Rock, AR in the **Federal Register** (73 FR 1565). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held. Background and Purpose The Arkansas Waterway is a part of the McClellan-Kerr Arkansas River Navigation System. The System rises in the vicinity of Catoosa, Oklahoma, and embraces improved natural waterways and a canal to empty into the Mississippi River in southeast Arkansas. The Arkansas Waterway drawbridge operation regulations contained in 33 CFR 117.123(b)(1), states that any vessel requiring an opening of the draw of the Baring Cross Railroad Drawbridge, Mile 119.6, shall contact the remote drawbridge operator in North Little Rock, Arkansas. The Coast Guard has determined that the remote operation is, in fact, conducted from Union Pacific's Harriman Dispatch Center in Omaha, Nebraska and a regulation change is needed to accurately reflect the location. In addition, as indicated in the Coast Guard bridge permit, the bridge is required to have audio and visual aids to permit remote operation. A sentence stating that the bridge is equipped with a Photoelectric Boat Detection System will be added to 33 CFR 117.123(b)(1) to clarify this issue. Discussion of Comments and Changes There were no comments to the proposed regulatory test. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule on commercial traffic operating on the Arkansas Waterway to be so minimal that a full Regulatory Evaluation is unnecessary. The operating procedures are already in place at the Baring Cross Railroad Drawbridge, Mile 119.6, and the changes to the CFR documents the procedures. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule is neutral to all business entities since it only clarifies how the bridge is operated and the bridge is still required to open on demand for vessels. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 117 Bridges. Words of Issuance and Regulatory Text For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1. 2. Amend § 117.123 by revising paragraph(b)(1) as follows: § 117.123 Arkansas Waterway.
(b)* * *
(1)Normal Flow Procedures. Any vessel which requires an opening of the draw of this bridge shall establish contact by radiotelephone with the remote drawbridge operator on VHF-FM Channel 13 in Omaha, Nebraska. The remote drawbridge operator will advise the vessel whether the requested span can be immediately opened and maintain constant contact with the vessel until the requested span has opened and the vessel passage has been completed. The bridge is equipped with a Photoelectric Boat Detection System to prevent the span from lowering if there is an obstruction under the span. If the drawbridge cannot be opened immediately, the remote drawbridge operator will notify the calling vessel and provide an estimated time for a drawbridge opening. Dated: April 17, 2008. J.H. Korn, Captain U.S. Coast Guard, Commander 8th Coast Guard District, Acting. [FR Doc. E8-9818 Filed 5-5-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 3 RIN 2900-AM17 Typographical Error: Notice and Assistance Requirements; Correction AGENCY: Department of Veterans Affairs. ACTION: Final rule; correction. SUMMARY: The Department of Veterans Affairs
(VA)published a document in the **Federal Register** of April 30, 2008, revising its regulation governing VA's duty to provide a claimant with notice of the information and evidence necessary to substantiate a claim and VA's duty to assist a claimant in obtaining the evidence necessary to substantiate the claim. The document inadvertently contained a typographical error, and this document corrects that error. DATES: *Effective Date:* This correction is effective May 6, 2008. FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant, Regulations Staff (211D), Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420,
(727)319-5847. SUPPLEMENTARY INFORMATION: On April 30, 2008, VA published in the **Federal Register** (73 FR 23353) a document revising its regulation regarding VA's duty to provide a claimant with notice of the information and evidence necessary to substantiate a claim and VA's duty to assist a claimant in obtaining the evidence necessary to substantiate the claim. In the rule, one typographical error was inadvertently published. The reason for the typographical error is that, between the publication of the proposed rule and the publication of the final rule, VA had redesignated the relevant provision of its procedures manual from “c” to “d.” This document corrects that error. In FR Doc. E8-9454 published on April 30, 2008 (73 FR 23353), make the following correction. On page 23355, in the second column, in the first sentence of the third full paragraph, the VA Manual M21-1MR paragraph reference is corrected by removing “I.1.B.3.c” and adding in its place “I.1.B.3.d”. Approved: April 30, 2008. Robert C. McFetridge, Assistant to the Secretary for Regulation Policy and Management. [FR Doc. E8-9966 Filed 5-5-08; 8:45 am] BILLING CODE 8320-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [Docket No. EPA-R02-OAR-2008-0005; FRL-8562-1] Approval and Promulgation of Implementation Plans; Revised PM 2.5 Motor Vehicle Emissions Budgets; State of New Jersey AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Environmental Protection Agency
(EPA)is approving a state implementation plan revision submitted by the State of New Jersey. This revision updates the 2009 PM <sup>2.5</sup> motor vehicle emissions budgets for Mercer County (for direct PM <sup>2.5</sup> and NO <sup>X</sup> , a precursor), located within the New Jersey portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT, PM <sup>2.5</sup> nonattainment area. The intended effect of this rulemaking is to approve budgets that will be used to determine transportation conformity. DATES: This rule will be effective June 5, 2008. ADDRESSES: Copies of the State submittals are available at the following addresses for inspection during normal business hours: Environmental Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866. New Jersey Department of Environmental Protection, Public Access Center, 401 East State Street, 1st Floor, Trenton, New Jersey 08625. FOR FURTHER INFORMATION CONTACT: Matthew Laurita, *laurita.matthew@epa.gov* at the Environmental Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, NY 10007-1866, telephone number
(212)637-3895, fax number
(212)637-3901. SUPPLEMENTARY INFORMATION: Table of Contents I. Analysis of the State's Submittal II. Comments on the Proposed Rulemaking III. Final EPA Action IV. Statutory and Executive Order Reviews I. Analysis of the State's Submittal On December 17, 2007, New Jersey submitted a proposed state implementation plan
(SIP)revision to EPA updating the existing motor vehicle emissions budgets (“budgets”) for the Mercer County, New Jersey portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT, PM <sup>2.5</sup> nonattainment area (PM <sup>2.5</sup> is composed of airborne particles generally less than or equal to 2.5 micrometers in diameter). At the time of the submittal, New Jersey requested that EPA parallel process the SIP revision. New Jersey subsequently held a public hearing on January 28, 2008, and accepted public comments until January 31, 2008. On February 25, 2008, New Jersey submitted a final SIP revision to EPA with no substantive changes from the December 17, 2007 submittal. For more information on New Jersey's December 17, 2007 submittal, please see EPA's March 5, 2008, Notice of Proposed Rulemaking (73 FR 11846). When EPA approved New Jersey's initial PM <sup>2.5</sup> budgets (71 FR 38770, July 10, 2006), we inadvertently did not revise 40 Code of Federal Regulations
(CFR)part 52 to include the approved budgets. In this action we are updating 40 CFR part 52 to reflect both the July 10, 2006, final rulemaking and today's final rulemaking. II. Comments on the Proposed Rulemaking EPA proposed approval of New Jersey's SIP revision on March 5, 2008 (73 FR 11846). The comment period closed on April 4, 2008. EPA did not receive any comments. III. Final EPA Action EPA is approving revisions to the 2009 PM <sup>2.5</sup> motor vehicle emissions budgets for Mercer County, New Jersey. The revised budgets are 108 tons per year for direct PM <sup>2.5</sup> and 5,056 tons per year for NO <sup>X</sup> . These revised motor vehicle emissions budgets supersede the previous 2009 budgets and are to be used by the Delaware Valley Regional Planning Commission in making transportation conformity determinations on or after the effective date of this Final Rulemaking. 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 rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the 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 is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the 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.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements. Dated: April 24, 2008. Alan J. Steinberg, Regional Administrator, Region 2. Part 52, chapter I, title 40 of the Code of Federal Regulations 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 FF—New Jersey 2. Section 52.1602 is added to read as follows: § 52.1602 Control strategy and regulations: PM 2.5 .
(a)Approval—On May 18, 2006, New Jersey submitted an early PM <sup>2.5</sup> implementation plan to set motor vehicle emissions budgets for the New Jersey portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT, PM <sup>2.5</sup> nonattainment area. The budgets were allocated by metropolitan planning organization as follows: North Jersey Transportation Planning Authority: 1,207 tons per year of direct PM <sup>2.5</sup> and 61,676 tons per year of NO <sup>X</sup> ; Delaware Valley Regional Planning Commission: 89 tons per year of direct PM <sup>2.5</sup> and 4,328 tons per year of NO <sup>X</sup> .
(b)Approval—On February 25, 2008, New Jersey submitted a revision to its early PM <sup>2.5</sup> implementation plan to revise the motor vehicle emissions budgets for the Mercer County, New Jersey portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT, PM <sup>2.5</sup> nonattainment area. The revised budgets, applicable to the Delaware Valley Regional Planning Commission, are as follows: 108 tons per year of direct PM <sup>2.5</sup> and 5,056 tons per year of NO <sup>X</sup> . [FR Doc. E8-9819 Filed 5-5-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60, 61, 62, and 63 [FRL-8563-1] Change of Address for Submission of Certain Reports; Technical Correction AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule; technical amendment. SUMMARY: EPA is correcting the address for EPA Region VIII in General Provisions of EPA regulations. Certain EPA air pollution control regulations require submittal of notifications, reports, and other documents to the EPA regional office. This technical amendment updates and corrects the address for submitting such information to the EPA Region VIII office. DATES: *Effective Date:* This document is effective June 5, 2008. FOR FURTHER INFORMATION CONTACT: Laurie Ostrand, Air and Toxics Technical Enforcement Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129,
(303)312-6437, *ostrand.laurie@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document, wherever “we” or “our” is used it means the EPA. Section 553 of the Administrative Procedures Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedures are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because we are merely correcting EPA Region VIII's address. Thus notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B). Specifically, EPA is correcting the address for EPA Region VIII in the General Provisions of 40 CFR parts 60, 61, 62, and 63. Certain provisions of 40 CFR parts 60, 61, 62, and 63 regulations require the submittal of notifications, reports, and other documents to the EPA regional office. This technical amendment updates and corrects the address for submitting such information to the EPA Region VIII office. Statutory and Executive Order Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations 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. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995
(UMRA)(Pub. L. 104-4, 109 Stat. 48 (1995)). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This technical correction action does not involve technical standards; 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. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). 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 June 5, 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** . These corrections to the General Provisions of 40 CFR part 63 is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Parts 60, 61, 62 and 63 Environmental protection, Air pollution control, Reporting and recordkeeping requirements. Dated: April 28, 2008. Carol Rushin, Acting Regional Administrator, Region 8. 40 CFR parts 60, 61, 62, and 63 are amended as follows: PART 60—[AMENDED] 1. The authority citation for part 60 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—General Provisions 2. Section 60.4 is amended by revising the address for Region VIII in paragraph
(a)to read as follows: § 60.4 Address.
(a)* * * Region VIII (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming) Director, Air and Toxics Technical Enforcement Program, Office of Enforcement, Compliance and Environmental Justice, Mail Code 8ENF-AT, 1595 Wynkoop Street, Denver, CO 80202-1129. PART 61—[AMENDED] 3. The authority citation for part 61 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—General Provisions 4. Section 61.04 is amended by revising the address for Region VIII in paragraph
(a)to read as follows: § 61.04 Address.
(a)* * * Region VIII (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming) Director, Air and Toxics Technical Enforcement Program, Office of Enforcement, Compliance and Environmental Justice, Mail Code 8ENF-AT, 1595 Wynkoop Street, Denver, CO 80202-1129. PART 62—[AMENDED] 5. The authority citation for part 62 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—General Provisions 6. In § 62.10 the table is amended by revising the entry for Region VIII to read as follows: § 62.10 Submission to Administrator. Region and jurisdiction covered Address * * * * * * * VIII—Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming Director, Air Program, Office of Partnerships and Regulatory Assistance, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, CO 80202-1129 * * * * * * * PART 63—[AMENDED] 7. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—General Provisions 8. Section 63.13 is amended by revising the address for Region VIII in paragraph
(a)to read as follows: § 63.13 Addresses of State air pollution control agencies and EPA Regional Offices.
(a)* * * EPA Region VIII (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming) Director, Air and Toxics Technical Enforcement Program, Office of Enforcement, Compliance and Environmental Justice, Mail Code 8ENF-AT, 1595 Wynkoop Street, Denver, CO 80202-1129. [FR Doc. E8-9963 Filed 5-5-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 412 [CMS-1493-IFC] RIN 0938-AP33 Medicare Program; Changes for Long-Term Care Hospitals Required by Certain Provisions of the Medicare, Medicaid, SCHIP Extension Act of 2007: 3-Year Delay in the Application of Payment Adjustments for Short Stay Outliers and Changes to the Standard Federal Rate AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Interim final rule with comment period. SUMMARY: This interim final rule with comment period implements certain provisions of section 114 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 relating to long term care hospitals (LTCHs). These provisions include a 3-year delay in the application of certain provisions of the payment adjustment for short-stay outliers and revisions to the RY 2008 standard Federal rate. DATES: *Effective date:* The provisions of § 412.1 and § 412.500 are effective June 5, 2008. The provisions of § 412.529(c)(1) through (c)(3) are effective on December 29, 2007. In accordance with section 1871(e)(1)(A)(i) and
(ii)of the Social Security Act (the Act), the Secretary has determined that retroactive application of the provisions of § 412.529(c)(1) through (c)(3) is necessary to comply with the statute and that failure to apply the changes retroactively would be contrary to public interest. Also, in accordance with section 1871(e)(1)(A)(ii) of the Act, the technical corrections to § 412.529(f) (redesignated from § 412.529(c)(4)) are effective on December 29, 2007. In accordance with section 1871(e)(1)(A)(ii) of the Act, the Secretary has determined that failure to apply the technical corrections in § 412.529(f) retroactively would be contrary to public interest. Additionally, in accordance with section 1871(e)(1)(A)(i) and
(ii)of the Act, the provisions of § 412.523 are effective April 1, 2008. Also, in accordance with section 1871(e)(1)(A)(ii) of the Act, the fixed loss-amount provision in section II.D.2. of this preamble which revises the fixed-loss amount for discharge occurring on or after April 1, 2008, and through June 30, 2008, is effective April 1, 2008. *Comment date:* To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on June 30, 2008. ADDRESSES: In commenting, please refer to file code CMS-1493-IFC. Because of staff and resource limitations, we cannot accept comments by facsimile
(FAX)transmission. You may submit comments in one of four ways (please choose only one of the ways listed): 1. *Electronically.* You may submit electronic comments on this regulation to *http://www.regulations.gov.* Follow the instructions for “Comment or Submission” and enter the filecode to find the document accepting comments. 2. *By regular mail.* You may mail written comments (one original and two copies) to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1493-IFC, P.O. Box 8013, Baltimore, MD 21244-8013. Please allow sufficient time for mailed comments to be received before the close of the comment period. 3. *By express or overnight mail.* You may send written comments (one original and two copies) to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1493-IFC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850. 4. *By hand or courier.* If you prefer, you may deliver (by hand or courier) your written comments (one original and two copies) before the close of the comment period to either of the following addresses: a. Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201. (Because access to the interior of the HHH Building is not readily available to persons without Federal Government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.) b. 7500 Security Boulevard, Baltimore, MD 21244-1850. If you intend to deliver your comments to the Baltimore address, please call telephone number
(410)786-7195 in advance to schedule your arrival with one of our staff members. Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period. *Submission of comments on paperwork requirements.* You may submit comments on this document's paperwork requirements by following instructions at the end of the “Collection of Information Requirements” section in this document. For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section. FOR FURTHER INFORMATION CONTACT: Tzvi Hefter,
(410)786-4487, General information. Michele Hudson,
(410)786-5490, General information. Elizabeth Truong,
(410)786-6005, Federal rate update and short stay outlier. SUPPLEMENTARY INFORMATION: *Inspection of Public Comments:* All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following Web site as soon as possible after they have been received: *http://www.regulations.gov.* Follow the search instructions on the Web site to view public comments. Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951. I. Background A. Legislative and Regulatory Authority Section 123 of the Medicare, Medicaid, and SCHIP [State Children's Health Insurance Program] Balanced Budget Refinement Act of 1999
(BBRA)(Pub. L. 106-113), as amended by section 307(b) of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000
(BIPA)(Pub. L. 106-554), provides for payment for both the operating and capital-related costs of hospital inpatient stays in long-term care hospitals (LTCHs) under Medicare Part A based on prospectively set rates. The Medicare prospective payment system
(PPS)for LTCHs applies to hospitals described in section 1886(d)(1)(B)(iv) of the Social Security Act (the Act), effective for cost reporting periods beginning on or after October 1, 2002. Section 1886(d)(1)(B)(iv)(I) of the Act defines a LTCH as “a hospital which has an average inpatient length of stay (as determined by the Secretary) of greater than 25 days.” Section 1886(d)(1)(B)(iv)(II) of the Act also provides an alternative definition of LTCHs: specifically, a hospital that first received payment under section 1886(d) of the Act in 1986 and has an average inpatient length of stay
(LOS)(as determined by the Secretary of Health and Human Services (the Secretary)) of greater than 20 days and has 80 percent or more of its annual Medicare inpatient discharges with a principal diagnosis that reflects a finding of neoplastic disease in the 12-month cost reporting period ending in fiscal year
(FY)1997. Section 307(b)(1) of the BIPA, among other things, mandates that the Secretary shall examine, and may provide for, adjustments to payments under the LTCH PPS, including adjustments to diagnosis related group
(DRG)weights, area wage adjustments, geographic reclassification, outliers, updates, and a disproportionate share adjustment. In the August 30, 2002 **Federal Register** , we issued a final rule that implemented the LTCH PPS authorized under BBRA and BIPA (67 FR 55954). This system uses information from LTCH patient records to classify patients into distinct long-term care diagnosis-related groups (LTC-DRGs) based on clinical characteristics and expected resource needs. Payments are calculated for each LTC-DRG and provisions are made for appropriate payment adjustments. Payment rates under the LTCH PPS are updated annually and published in the **Federal Register** . In the August 30, 2002 final rule, we also presented an in-depth discussion of the LTCH PPS, including the patient classification system, relative weights, payment rates, additional payments (short-stay outliers), and the budget neutrality requirements mandated by section 123 of the BBRA. The same final rule that established regulations for the LTCH PPS under 42 CFR part 412, subpart O, also contained LTCH provisions related to covered inpatient services, limitation on charges to beneficiaries, medical review requirements, furnishing of inpatient hospital services directly or under arrangement, and reporting and recordkeeping requirements. We refer readers to the August 30, 2002 final rule for a comprehensive discussion of the research and data that supported the establishment of the LTCH PPS (67 FR 55954). In the June 6, 2003 **Federal Register** , we published a final rule that set forth the FY 2004 annual update of the payment rates for the Medicare PPS for inpatient hospital services furnished by LTCHs (68 FR 34122). It also changed the annual period for which the payment rates are effective. The annual updated rates are now effective from July 1 through June 30 instead of from October 1 through September 30. We refer to the July through June time period as a “long-term care hospital rate year” (LTCH PPS rate year (RY)). In addition, we changed the publication schedule for the annual update to allow for an effective date of July 1. The payment amounts and factors used to determine the annual update of the LTCH PPS Federal rate are based on a LTCH PPS rate year. While the LTCH payment rate update is effective July 1, the annual update of the DRG classifications and relative weights for LTCHs are linked to the annual adjustments of the acute care hospital inpatient DRGs and are effective each October 1. The most recent annual update to the LTCH PPS was presented in the RY 2008 LTCH PPS final rule (72 FR 26870 through 27029). In that final rule, among other things, we established a 0.71 percent update to the Federal rate for RY 2008, as well as revising the existing payment formula for certain short-stay outlier
(SSO)cases and the establishment of a payment adjustment policy applicable to LTCH and LTCH satellite facility discharges that were admitted from hospitals that are not co-located with the LTCH or LTCH satellite facility and that exceed a certain percentage threshold. In addition, in the January 29, 2008 **Federal Register** , we presented the annual proposed rule for RY 2009. Among other things, this proposed rule presented a proposed update for RY 2009 and other proposed payment rate and policy changes. On December 29, 2007 the Medicare, Medicaid, and SCHIP Extension Act (MMSEA) (Pub. L. 110-173) was enacted. Specifically, section 114 of MMSEA, entitled “Long-term care hospitals,” made a number of changes affecting payments to LTCHs for inpatient services. Several of the provisions of section 114 of MMSEA are discussed in this interim final rule with comment period. B. Criteria for Classification as a LTCH Under the existing regulations at § 412.23(e)(1) and (e)(2)(i), which implement section 1886(d)(1)(B)(iv)(I) of the Act, to qualify to be paid under the LTCH PPS, a hospital must have a provider agreement with Medicare and must have an average Medicare inpatient LOS of greater than 25 days. Alternatively, § 412.23(e)(2)(ii) states that for cost reporting periods beginning on or after August 5, 1997, a hospital that was first excluded from the PPS in 1986 and can demonstrate that at least 80 percent of its annual Medicare inpatient discharges in the 12-month cost reporting period ending in FY 1997 have a principal diagnosis that reflects a finding of neoplastic disease must have an average inpatient LOS for all patients, including both Medicare and non-Medicare inpatients, of greater than 20 days. Section 412.23(e)(3) currently provides that, subject to the provisions of paragraphs (e)(3)(ii) through (e)(3)(iv) of this section, the average Medicare inpatient LOS, specified under § 412.23(e)(2)(i) is calculated by dividing the total number of covered and noncovered days of stay for Medicare inpatients (less leave or pass days; that is, days where the inpatient is not occupying a bed but has not been discharged) by the number of total Medicare discharges for the hospital's most recent complete cost reporting period. Currently, § 412.23 also provides that subject to the provisions of paragraphs (e)(3)(ii) through (e)(3)(iv) of this section, the average inpatient LOS specified under § 412.23(e)(2)(ii) is calculated by dividing the total number of days for all patients, including both Medicare and non-Medicare inpatients (less leave or pass days) by the number of total discharges for the hospital's most recent complete cost reporting period. The fiscal intermediaries
(FIs)or Medicare Administrative Contractors
(MACs)verify that LTCHs meet the average LOS requirements. We note that the inpatient days of a patient who is admitted to a LTCH without any remaining Medicare days of coverage, regardless of the fact that the patient is a Medicare beneficiary, will not be included in the above calculation. Because Medicare would not be paying for any of the patient's treatment, data on the patient's stay would not be included in the Medicare claims processing systems. As described in § 409.61, in order for both covered and noncovered days of a LTCH hospitalization to be included, a patient admitted to the LTCH must have at least 1 remaining-benefit day. (For a more detailed explanation, see the June 6, 2003 final rule (68 FR 34123).) The FI's or MAC's determination of whether or not a hospital qualifies as an LTCH is based on the hospital's discharge data from the hospital's most recent complete cost reporting period as specified in § 412.23(e)(3) and is effective at the start of the hospital's next cost reporting period as specified in § 412.22(d). However, if the hospital does not meet the average LOS requirement as specified in § 412.23(e)(2)(i) and (ii), the hospital may provide the FI or MAC with data indicating a change in the ALOS by the same method for the period of at least 5 months of the immediately preceding 6-month period (69 FR 25676). Our interpretation of existing § 412.23(e)(3) is to allow hospitals to submit data using a period of at least 5 months of the most recent data from the immediately preceding 6-month period. II. Provisions of This Interim Final Rule W ith Comment Period Section 114 of MMSEA made a number of changes affecting payments to long-term care hospitals (LTCHs) for inpatient services. This interim final rule with comment period will implement the following provisions affecting LTCH PPS payments: • *Modification of payment adjustments to certain SSO cases.* Section 114(c)(3) of MMSEA specifies that the refinement of the SSO policy implemented in RY 2008 shall not apply for a 3-year period beginning with discharges occurring on or after December 29, 2007. Specifically, the fourth SSO payment option in § 412.529(c)(3)(i) shall not apply for a 3-year period, as discussed in section II.B. of this interim final rule with comment period. • *Revision to the RY 2008 rate provision.* Section 114(e)(1) of MMSEA provides that the base rate for RY 2008 “shall be the same as the base rate for discharges for the hospital occurring during the rate year ending in 2007.” Furthermore, in accordance with section 114(e)(2) of MMSEA, the revised rate will not be applicable to discharges occurring on or after July 1, 2007 and before April 1, 2008. (See section II.C. of this interim final rule with comment period.) We also note that section 114(c)(4) of MMSEA specifies that for a 3-year period beginning on December 29, 2007, the Secretary shall not make the one-time prospective adjustment to the LTCH PPS payment rates provided for in existing § 412.523(d)(3). Since under existing regulations the one-time prospective adjustment would have impacted the update to the standard Federal rate for RY 2009, we have addressed this provision in the LTCH PPS RY 2009 January 29, 2008 proposed rule (73 FR 5353 through 5360). While we did not propose the one-time prospective adjustment in the RY 2009 proposed rule, we provided a possible methodology for determining whether the one-time prospective adjustment would be warranted. We solicited comments on the methodology and indicated that we would take these comments into consideration in proposing to implement a one-time prospective adjustment on or after December 29, 2010, consistent with the requirements of section 114(c)(4) of MMSEA. Additionally, section 114(d) of MMSEA established a 3-year moratorium on the establishment and classification of new LTCHs, LTCH satellite facilities, and on any increase in beds in existing LTCHs and LTCH satellite facilities, with certain exceptions. Section 114(c)(1) and
(2)of MMSEA established a 3-year delay in the application of certain payment policies which apply a payment adjustment for LTCH patients admitted from certain referring hospitals that exceed various percentage thresholds. These provisions will be addressed in a separate rulemaking. We would also note that section 114 of MMSEA included additional provisions focusing on LTCHs not directly related to payment policy that are not in this interim final rule with comment period are as follows: • Section 1861 of the Act is amended by adding a new paragraph
(ccc)defining LTCHs. • The Secretary is directed to conduct a study and submit a report to the Congress within 18 months after the date of enactment of MMSEA. The Secretary will conduct a study on the establishment of national LTCH facility and patient criteria. • The Secretary is directed to provide an expanded review of medical necessity for LTCH admission and continued stay. A. Scope of the LTCH Regulations and Section 114 of MMSEA Section 114(e)(1) of MMSEA amended section 1886 of the Act by adding a new subsection m. New section 1886(m)(1) of the Act provides that for provisions related to the establishment and implementation of a prospective payment system for payments under this title for inpatient hospital services furnished by a long-term care hospital described in subsection (d)(1)(B)(iv) (see section 123 of BBRA and section 307(b) of BIPA.) In addition, it added new section 1886(m)(2) of the Act, which pertains to the standard Federal rate for RY 2008. We are revising our regulations at § 412.1(a)(4) and § 412.500, which contain the scope of the long-term care hospital regulations to reference the statutory authority provided by section 114 of MMSEA and to reference the amendment to section 1886 of the Act. B. Short Stay Outlier
(SSO)Cases 1. Background In the RY 2003 LTCH PPS final rule (67 FR 55995), we established at § 412.529 a special payment policy for short-stay outlier
(SSO)cases, SSO cases are cases with a covered LOS that is less than or equal to five-sixths of the geometric average LOS for each LTC-DRG. When we established the SSO policy, we explained that “[a] short stay outlier case may occur when a beneficiary receives less than the full course of treatment at the LTCH before being discharged” (67 FR 55995). Therefore, under the LTCH PPS, we implemented a special payment adjustment for SSO cases. Under the SSO policy established in the RY 2003 LTCH PPS final rule (67 FR 55995 through 56000), for LTCH PPS discharges with a covered LOS of up to and including five-sixths the geometric average LOS for the LTC-DRG, we adjusted the per discharge payment under the LTCH PPS by the least of the following three options:
(1)120 percent of the estimated cost of the case;
(2)120 percent of the LTC-DRG specific per diem amount multiplied by the covered LOS of that discharge; or
(3)the full LTC-DRG payment. Generally LTCHs are defined by statute as having an average LOS of greater than 25 days. We believe that since a SSO case may occur when a beneficiary receives less than the full course of treatment at the LTCH before being discharged, the full LTC-DRG payment would generally not be appropriate. Accordingly, based on an evaluation of data from more than 3 years of the LTCH PPS which revealed that a large percentage of SSOs had a covered LOS of 14 days or less, we further revised our payment policy for SSO cases in the RY 2007 and RY 2008 LTCH PPS final rules (71 FR 27845 through 27870 and 72 FR 26904 through 26918) for LTCHs defined by section 1886(d)(1)(B)(iv)(I) of the Act. However, as we discussed in detail in the RY 2007 and RY 2008 LTCH PPS final rules (71 FR 27863 and 72 FR 26907), we did not believe that it was appropriate to apply our RY 2007 and RY 2008 SSO policy revisions, discussed below, to the unique situation of a LTCHs defined by section 1886(d)(1)(B)(iv)(II) of the Act. For RY 2007, consistent with the Secretary's broad authority “to provide for appropriate adjustments to the long-term hospital payment system * * *” established under section 123 of the BBRA as amended by section 307(b)(1) of BIPA, we reduced the cost-based option of the SSO policy adjustment to 100 percent of the estimated costs of the case for discharges occurring on or after July 1, 2006. Furthermore, in the RY 2007 LTCH PPS final rule, we added a fourth payment option to the SSO policy, following an analysis of the FY 2004 MedPAR data that indicated that even under the existing SSO policy, LTCHs were admitting short stay patients that we believe could have continued treatment at the acute care hospitals (paid for under the IPPS). Furthermore, we believe that these types of admissions (that is, of patients from acute care hospitals that result in short stay cases at the LTCH) could result in unnecessary and inappropriate admissions to LTCHs. This fourth payment alternative is a blend of an LTCH PPS amount that is comparable to the IPPS per diem payment amount, and the 120 percent of the LTC-DRG per diem payment amount. Specifically, the blended payment is based on a percentage of an IPPS comparable amount computed as a per diem and capped at the full IPPS-comparable amount, and a percentage of a payment based on 120 percent of the LTC-DRG per diem amount so that as the length of the stay increases, the percentage of the IPPS comparable per diem amount will decrease and the percentage based on 120 percent of the LTC-DRG per diem specific amount will increase. This reflects our belief that as the length of a SSO stay increases, the case begins to resemble a more “typical” LTCH stay and, therefore, it is appropriate that incrementally, payment should be based more on what would otherwise be payable under the LTCH PPS and less on the “IPPS-comparable” amount. (Specifics of calculating the “IPPS- comparable” amount are set forth in considerable detail in the RY 2007 LTCH PPS final rule (71 FR 27852 through 27853).) In the RY 2008 LTCH PPS final rule (72 FR 26904 through 26918), we further revised the SSO policy based upon additional analysis of the FY 2005 MedPAR data. Specifically, our analysis revealed that 42 percent of LTCH SSO discharges, or approximately 19,750 cases, had covered lengths of stay that were less than or equal to the ALOS plus one standard deviation of an IPPS discharge for the same DRG as the LTC-DRG to which the case was assigned. (For additional discussion of this specific determination, see the RY 2008 LTCH PPS final rule (72 FR 26905).) At that time, we stated that we believed that the 42 percent of LTCH SSO cases in the RY 2005 MedPAR files with LOS that are equal to or less than the IPPS average LOS plus one standard deviation for the same DRGs under the IPPS appeared to be comparable to typical stays at acute care hospitals. For this subgroup of SSO cases, we stated that even with the blend option, we believe that payment in excess of what Medicare would have paid under the IPPS is inappropriate. (We note that in the FY 2008 IPPS final rule (72 FR 47130) the Medicare severity-diagnosis related groups (MS-DRGs) and the Medicare severity-long-term care-diagnosis related groups (MS-LTC-DRGs) were adopted for the IPPS and the LTCH PPS, respectively. Therefore, for SSO policies that are applicable to LTCH discharges occurring on or after October 1, 2007, all references to DRGs and LTC-DRGs should be understood to represent MS-DRGs and MS-LTC-DRGs (see § 412.503). Accordingly, in the RY 2008 LTCH PPS final rule we established an alternative fourth payment option for SSO cases under the LTCH PPS for discharges occurring on or after July 1, 2007. Specifically, the covered LOS of a SSO case which has been assigned to a particular MS-LTC-DRG is compared to the average LOS plus one standard deviation for the same DRG under the IPPS, which we call “IPPS comparable threshold.” For example, if the covered LOS of the LTCH SSO case is equal to or less than the average LOS plus one standard deviation for the same DRG under the IPPS, the LTCH SSO case would be within the “IPPS comparable threshold” (72 FR 26870 and 26906). We note that the “IPPS-comparable threshold” is only applicable if a particular stay is a SSO, that is, with a covered LOS equal to or less than five-sixth of the average LOS of the applicable MS-LTC-DRG. Thus, for a LTCH SSO case that is within the “IPPS comparable threshold,” the fourth payment option would be based on an amount comparable to the hospital IPPS per diem amount determined under § 412.529(d)(4). For a SSO case with a covered LOS that exceeds the “IPPS-comparable” threshold, the fourth payment option continues to be the “blend” established in RY 2007, described above. For all SSO cases, the first three SSO payment options are the same. To summarize, as established in § 412.529, for each SSO case treated at a LTCH defined under section 1886(d)(1)(B)(iv)(I), Medicare will pay the least of the following: • 100 percent of the estimated cost of the case. • 120 percent of the LTC-DRG specific per diem amount multiplied by the covered LOS of the particular case. • The full LTC-DRG. • Comparing the covered LOS for a SSO case and the “IPPS comparable threshold” one of the following: ++ The blend of the 120 percent of the LTC-DRG specific per diem amount and an amount comparable to the IPPS per diem amount specified in § 412.529(c)(2)(iv), for cases where the covered LOS for a SSO case is *greater* than the “IPPS comparable threshold”. ++ An amount comparable to the hospital IPPS per diem amount determined under § 412.529(d)(4) for cases where the covered LOS for a SSO is *less than or equal to* the “IPPS comparable threshold.” We note that the revisions of the SSO policy payment options that were finalized beginning in RY 2007, (that is, the “blend” and reduction of the 120 percent of the estimated cost to 100 percent), and RY 2008 (the “IPPS-comparable” threshold option) were not applied to the unique situation of a hospital designated as a LTCH by the Congress under section 1886(d)(1)(B)(iv)(II) of the Act, that is, (a “subclause (II)” LTCH) (71 FR 27863 and 72 FR 26907). 2. Change to the SSO Policy Due to the Medicare, Medicaid, and SCHIP Extension Act of 2007 Section 114(c)(3) of MMSEA provides that “[t]he Secretary shall not apply, for the 3-year period beginning on the date of the enactment of this Act, the amendments finalized on May 11, 2007 (72 **Federal Register** 26904, 26992) made to the short-stay outlier payment provision for long-term care hospitals contained in section 412.529(c)(3)(i) of title 42, Code of Federal Regulations, or any similar provision.” Accordingly, for discharges beginning on or after December 29, 2007 and before December 29, 2010, the fourth SSO payment option based on the “IPPS comparable threshold” as discussed above shall not apply. Specifically, during the 3-year period specified above, for each SSO case treated at a LTCH defined under section 1886(d)(1)(B)(iv)(I) of the Act, Medicare will pay the least of:
(1)100 percent of the estimated cost of the case;
(2)120 percent of the LTC-DRG specific per diem amount multiplied by the covered LOS of the particular case;
(3)the full LTC-DRG; or
(4)the blend of the 120 percent of the LTC-DRG specific per diem amount and an amount comparable to the IPPS per diem amount specified in § 412.529(c)(2)(iv). Accordingly, we are amending the appropriate regulations pertaining to the payment of SSO to implement section 114(c)(3) of MMSEA. Specifically, we made several heading changes and redesignated paragraph (c)(4), which refers to the policy for reconciliation of SSO payments, as the new paragraph (f). We note that we have not made any substantive changes to the policy for reconciliation of SSO payment (other than those associated with implementing section 114(c)(3) of MMSEA) and that the redesignation of the paragraph (c)(4) as (f), in addition the heading changes are simply reorganizational changes intended to make the regulations in this section more accessible. We also note that in amending the regulations, we discovered that several citations under existing paragraph (c)(4) were incorrect, originating from the RY 2008 final rule when we redesignated this paragraph from (c)(3) to (c)(4) (which was also an organizational change and not a substantive policy change to the policy on reconciliation of SSO payment) but inadvertently did not change the citations to correspond to the redesignation. In this interim final rule with comment period, we have corrected the citations in the redesignated paragraph (f). C. Standard Federal Rate for the 2008 LTCH PPS Rate Year 1. Background As specified at § 412.523(c)(3)(ii), for LTCH PPS rate years beginning RY 2004 through RY 2006, we updated the standard Federal rate by a factor to adjust for the most recent estimate of the increases in prices of an appropriate market basket of goods and services for LTCHs. When we moved the date of the annual update of the LTCH PPS from October 1 to July l in the RY 2004 LTCH PPS final rule (68 FR 34126 through 34128), we revised § 412.523(c)(3) accordingly. In the RY 2007 LTCH PPS final rule (71 FR 27818), we explained that rather than solely using the most recent estimate of the LTCH PPS market basket as the basis of the update factor for the Federal rate at RY 2007, we believed it is appropriate to adjust the Federal rate to account for the changes in case mix that are due to changes in coding practices (rather than an increase in patient severity) as indicated by our ongoing monitoring activities. We established at § 412.523(c)(3)(iii) that the update to the standard Federal rate for the 2007 LTCH PPS rate year was zero percent, based on the most recent estimate of the LTCH PPS market basket at the time and an adjustment to account for changes in case-mix in prior periods that are due to changes in coding practices, rather than increased patient severity, in FY 2004. Therefore, effective from July 1, 2006 through June 30, 2007, the standard rate was $38,086 (71 FR 27818). For the following year, we also considered changes in case mix in 2005 as opposed to 2004 that were due to changes in coding practices (rather than increased patient severity) in establishing the update to the Federal rate for the 2008 LTCH PPS rate year. In the RY 2008 LTCH final rule (72 FR 26887 through 26890), we adjusted the Federal rate based on the most recent estimate of market basket (3.2 percent) and an adjustment to account for changes in coding practices (2.49 percent) in FY 2005. Accordingly, we established at § 412.523(c)(3)(iv) that the update to the standard Federal rate for RY 2008 was 0.71 percent and we established the LTCH PPS standard Federal rate, effective from July 1, 2007 through June 30, 2008, at $38,356.45 (see 72 FR 26890). 2. Section 114(e)(1) and
(2)of the Medicare, Medicaid, and SCHIP Extension Act of 2007 Section 114(e)(1) of MMSEA revises the base rate for RY 2008. Specifically, section 114(e)(1) of Public Law 110-173 adds a new subsection 1886(m)(2) of the Act, which provides that the base rate for RY 2008 “shall be the same as the base rate for discharges for the hospital occurring during the rate year ending in 2007.” In addition, section 114(e)(2) of Public Law 110-173 indicates that section 1886(m)(2) of the Act “shall not apply to discharges occurring on or after July 1, 2007, and before April 1, 2008” (that is, the first 9 months of RY 2008). We note that the statute uses the term “base rate,” which is an undefined term in both section 1886(m) of the Act and in 42 CFR Part 412, subpart O. As we explained in the LTCH PPS RY 2009 proposed rule (73 FR 5361), we are interpreting that term to be the standard Federal rate because we believe Congress meant to eliminate the 0.71 percent update from the RY 2008 standard Federal rate. Under this interpretation, the standard Federal rate for RY 2008 would be the same as the standard Federal rate for RY 2007, that is, the 0.71 percent update finalized in the RY 2008 LTCH PPS final rule would be reversed. We do not believe that the term “base rate” could refer to the “unadjusted rate” because the unadjusted rate for RY 2008 would be updated by the current year's update factor in order to determine the standard Federal rate for RY 2008 (that is, to determine the standard Federal rate for any given rate year, the previous year's standard Federal rate, referred herein as the “unadjusted rate,” is updated by the current year's update factor) and doing so would result in the same Federal rate for RY 2008 as was adopted in the RY 2008 final rule. To illustrate mathematically, if “base rate” is interpreted to mean “unadjusted rate,” the “unadjusted rate” for RY 2008 ($38,086.04) would be the same as the RY 2007 “unadjusted rate” ($38,086.04). The RY 2008 “unadjusted rate” of $38,086.04 would subsequently be updated by the 0.71 percent update factor finalized in the RY 2008 final rule, resulting in a standard Federal rate for RY 2008 of $38,356.45, which is the same standard Federal rate that was originally finalized in the RY 2008 final rule. If we adopted this interpretation, we believe that LTCH PPS payments would be unaffected by section 114(e)(1) of MMSEA. Therefore, we believe that the term “base rate” used in section 114(e)(1) of MMSEA refers to the standard Federal rate. In subsequent sections of this preamble, we are using the term standard Federal rate instead of “base rate” when referencing the provision in section 114(e)(1) of MMSEA in order to avoid further confusion. In the RY 2008 LTCH PPS final rule (72 FR 26890), we established a standard Federal rate of $38,356.45 for the 2008 LTCH PPS rate year that was based on the best available data and policies established in that final rule. As discussed above, section 114(e) of MMSEA revises the standard Federal rate for RY 2008 while specifying that this rate “shall not apply to discharges occurring on or after July 1, 2007, and before April 1, 2008” (that is, the first 9 months of RY 2008). Specifically, section 114(e)(1) of MMSEA provides that under the new section 1886(m)(2) of the Act, the standard Federal rate for RY 2008 shall be the same as the standard Federal rate for RY 2007. The standard Federal rate for RY 2007 was $38,086.04 (71 FR 27818). Thus, to implement 114(e)(1) of the MMSEA, we are establishing through this interim final rule with comment period that the RY 2008 standard Federal rate is $38,086.04 (the same as the standard Federal rate for 2007). However, section 114(e)(2) of MMSEA specifically delays the application of the revised RY 2008 standard Federal rate. Specifically, section 114(e)(2) of MMSEA states that the revised RY 2008 standard Federal rate “shall not apply to discharges occurring on or after July 1, 2007, and before April 1, 2008.” Therefore, LTCH payments for discharges occurring on or after July 1, 2007 through March 31, 2008, will continue to include an adjustment of 0.71 percent, that is, payments are based on the standard Federal rate in § 412.523(c)(3)(iii) as updated by 0.71 percent. Accordingly, for discharges occurring on or after April 1, 2008 through June 30, 2008, the revised RY 2008 standard Federal rate of $38,086.04 is applied, while payments for discharges occurring from July 1, 2007 through March 31, 2008 are determined based on the standard Federal rate in § 412.523(c)(3)(iii) increased by 0.71 percent that is, $38,356.45. We are revising § 412.523(c)(iv) to conform to the revision of the standard Federal rate for RY 2008 under section 114(e) of MMSEA and to specify how payments are determined during RY 2008. Furthermore, section 114(e) of MMSEA affects the high cost outlier fixed-loss amount currently in effect since it revises the standard Federal rate for RY 2008 and the standard Federal rate is used to determine the fixed-loss amount. Specifically, the current fixed-loss amount was determined based on a standard Federal rate of $38,356.45. (See the RY 2008 LTCH PPS final rule (72 FR 26896 through 26899), as amended by the RY 2008 correction notice (72 FR 36613), for a discussion of the methodology and data used to determine the current fixed-loss amount for RY 2008.) Since for discharges occurring on or after April 1, 2008 through June 30, 2008, payments will be based on the revised RY 2008 standard Federal rate of $38,086.04, consistent with the existing regulations at § 412.525(a), in order to maintain estimated total payments for high cost outlier cases at 8 percent of the estimated total payments, we are revising the high cost outlier fixed-loss amount. Accordingly, under the broad authority conferred on the Secretary by section 123 of the BBRA, as amended by section 307(b) of BIPA, to make appropriate adjustments to the LTCH PPS, the revised high cost outlier fixed-loss amount effective for discharges occurring on or after April 1, 2008 through June 30, 2008 is $20,707. This revised fixed-loss amount was determined using the same data and methodology presented in the RY 2008 LTCH PPS final rule and takes into account the revised RY 2008 standard Federal rate as provided for in the MMSEA (discussed above). We note that in the RY 2009 LTCH PPS proposed rule (73 FR 5362), consistent with our historical practice, we proposed to update the standard Federal rate from the previous year (which is $38,086.04 due to section 114(e) of MMSEA, as explained above) to determine the proposed standard Federal rate for RY 2009. III. Response to Comments Because of the large number of public comments we normally receive on **Federal Register** documents, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the “DATES” section of this preamble, and, when we proceed with a subsequent document, we will respond to the comments in the preamble to that document. IV. Waiver of Proposed Rulemaking We ordinarily publish a notice of proposed rulemaking and invite public comment on a proposed rule in accordance with 5 U.S.C. section 553(b) of the Administrative Procedure Act (APA). In addition, section 1871(b)(1) provides that the Secretary shall provide for notice of the proposed regulation in the **Federal Register** and a period of not less than 60 days for public comment thereon. Section 1871(b)(2) provides for an exception to the requirement that the Secretary provide for notice of a proposed rulemaking and a period of not less than 60 days for public comment. Specifically, section 1871(b)(2)(B) of the Act provides an exception to these requirements when a law establishes a specific deadline for the implementation of a provision and the deadline is less than 150 days after the date of the enactment of the statute in which the deadline is contained. Here, various provisions of the MMSEA addressed in this interim final rule with comment period, changed existing LTCH PPS policies (it affected the short-stay outlier policy in § 412.529 and revised the RY 2008 standard Federal rate. Such changes were required to be implemented:
(1)Beginning December 29, 2007 (section 114(c)(3) of MMSEA), and
(2)were effective for RY 2008 on April 1, 2008 (section 114(e)(2) of MMSEA). Thus, the statute's deadline for implementation of the MMSEA-related policies contained in this interim final regulation was less than 150 days after the date of the enactment of the statute in which the deadline was contained. Therefore, under the authority of section 1871(b)(2)(B) of the Act, we are waiving notice and comment procedures for the MMSEA policy changes pertaining to the short-stay outlier policy, and the revised RY 2008 standard Federal rate. Moreover, we also find good cause to waive the requirement for publication of a notice of proposed rulemaking and comment on the grounds that it is unnecessary, impracticable and contrary to the public interest under the authority of 5 U.S.C. 553(b)(B). In general, this interim final rule with comment period sets forth three nondiscretionary provisions of the MMSEA with respect to short-stay outliers and the rate for RY 2008. Therefore, we believe pursuing notice and comment is unnecessary. Moreover, because that process would prevent timely implementation of congressionally mandated policy changes that are to be effective, as described previously in this section, we believe notice and comment procedures are impracticable and contrary to the public interest. In addition, notice and comment would delay significantly the issuance of essential guidance to the public which is necessary to assist them in making complex, time-sensitive business decisions of significant financial consequence with respect to their efforts to comply with section 114 of the MMSEA. Failure to provide this guidance would impede such business decisions. This regulation also makes three changes that are outside of the MMSEA mandated changes discussed above. Specifically, this regulation makes minor technical corrections to two incorrect cites that are embedded in § 412.529 and it revises the fixed-loss amount for the period April 1, 2008, through June 30, 2008. With respect to the technical corrections of the two embedded cites in § 412.529, notice and comment is also unnecessary. The revisions do not represent changes to our policy, and the public interest would, as a result, be best served by the timely correction of these technical errors. A delay in the applicability of the nonsubstantive changes would be contrary to the public interest because the incorrect cites, if left in place, result in confusion with respect to the calculation of cost-to-charge ratios. We also find good cause to waive notice and comment procedures on the revised fixed-loss amount for the period April 1, 2008, through June 30, 2008. The fixed-loss amount under the LTCH PPS is directly affected by the statutorily mandated change to the standard Federal rate for RY 2008 cited above. The existing regulations limit estimated high cost outlier payments under the LTCH PPS to 8 percent of total estimated LTCH PPS payments. Accordingly, in order to assure that estimated high cost outlier payments are maintained at this 8 percent target, in conjunction with the Congressionally mandated change in the LTCH PPS payments (that is, the standard Federal rate) that applies April 1, 2008, it would be contrary to the public interest if we did not make this conforming change to the high cost outlier fixed-loss amount, which lowers the fixed-loss amount for the period April 1, 2008, through June 30, 2008. Section 1871(e)(1)(A) of the Act provides that a substantive change in regulations, manual instructions, interpretative rules, statements of policy, or guidelines of general applicability under this title shall not be applied (by extrapolation or otherwise) retroactively to items and services furnished before the effective date of the change unless the Secretary determines that
(i)such retroactive application is necessary to comply with statutory requirements; or
(ii)failure to apply the change retroactively would be contrary to the public interest. As explained in the paragraph above, the MMSEA requires the Secretary to implement various policy changes contemporaneously with the enactment of the MMSEA on December 29, 2007. Therefore, under the authority of section 1871(e)(1)(A)(i) of the Act, we are making the provisions of this interim final rule with comment period that implement section 114(c)(3) of MMSEA retroactive to December 29, 2007. Additionally, as explained previously, the Secretary also finds that it would be contrary to the public interest if these provisions were not made effective on December 29, 2007, as explained above. Also, as explained in the previous paragraph, section 114(e)(1) of MMSEA requires the Secretary to revise standard Federal rate for RY 2008. However, the Secretary shall not apply such revised rate to discharges occurring on or after July 1, 2007, and before April 1, 2008 (section 114(e)(2) of the Act). Consequently, the regulations implementing section 114(e)(2) of MMSEA must be effective for a period predating this interim final rule with comment period under the authority of section 1871(e)(1)(A)(i) of the Act (specifically, beginning April 1, 2008). As explained previously, it would also be contrary to the public interest if these policies were not effective April 1, 2008. In general, many of the provisions of the MMSEA implemented in this interim final regulation are beneficial to LTCHs. If those MMSEA provisions of this regulation were not effective under the timeframes noted above, most LTCHs would be deprived the full benefit of these provisions. With respect to the minor technical corrections to § 412.529, failure to make these nonsubstantive changes applicable beginning on December 29, 2007, would be contrary to the public interest because of the confusion that could result from the incorrect citations in § 412.529. It is in the public interest to make the correction to prevent confusion among long-term care hospitals attempting to calculate cost-to-charge ratios. It is also contrary to the public interest as described above to not make the change to the fixed-loss amount applicable beginning April 1, 2008. Therefore, under the authority of section 1871(e)(1)(A)(ii) of the Act, we are making these changes effective under the timeframes noted above. For the same reasons noted above, we find good cause under section 553(d)(3) of the APA to waive the 30-day delay in the effective date. V. Collection of Information Requirements Under the Paperwork Reduction Act of 1995, we are required to provide 60-day notice in the **Federal Register** and solicit public comment before a collection of information requirement is submitted to the Office of Management and Budget
(OMB)for review and approval. In order to fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 requires that we solicit comment on the following issues: • The need for the information collection and its usefulness in carrying out the proper functions of our agency. • The accuracy of our estimate of the information collection burden. • The quality, utility, and clarity of the information to be collected. • Recommendations to minimize the information collection burden on the affected public, and including automated collection techniques. We are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements (ICRs): Section 412.529(f)(4) states that for discharges occurring on or after October 1, 2006, short-stay outlier payments are subject to certain provisions. Specifically, § 412.529(f)(4)(i) states that a hospital may also request that its fiscal intermediary use a different (higher or lower) cost-to-charge ratio and this request must be approved by the appropriate CMS Regional Office. The burden associated with this requirement is the time and effort necessary for a hospital to collect supporting evidence for submission, to draft the request for alternative cost-to-charge ratio, and to submit the request along with the supporting evidence to the appropriate CMS Regional Office. While this requirement is subject to the PRA, the burden is currently approved under OMB control number 0938-1020 with an expiration date of June 30, 2010. Table 3.—Estimated Annual Reporting and Recordkeeping Burden Regulation section(s) OMB Control No. Respondents Responses Burden per response (hours) Total annual burden (hours) § 412.529(f) 0938-1020 18 18 8 144 Total 144 If you comment on these information collection and recordkeeping requirements, please do either of the following: 1. Submit your comments electronically as specified in the ADDRESSES section of this proposed rule; or 2. Mail copies to the address specified in the ADDRESSES section of this proposed rule and to the Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503, Attn: Carolyn L. Raffaelli, CMS Desk Officer, CMS-1493-IFC, *Carolyn_L._Raffaelli@omb.eop.gov* . Fax
(202)395-6974. VI. Regulatory Impact Analysis We have examined the impacts of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act
(RFA)(September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), Executive Order 13132 on Federalism, and the Congressional Review Act (5 U.S.C. 804 (2)). Executive Order 12866 (as amended by Executive Order 13258) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis
(RIA)must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). As stated in section II.C. of this preamble, section 114(e)(1) of the Medicare, Medicaid, and SCHIP Extension Act of 2007 at the new 1886(m)(2) of the Act revises the standard Federal rate for RY 2008 by providing that “for discharges occurring during the rate year ending in 2008 for a hospital, the base rate for such discharges for the hospital shall be the same as the base rate for discharges for the hospital occurring during the rate year ending in 2007” (in other words, the standard Federal rate for RY 2008 is the same as the standard Federal rate for 2007). Thus, the standard Federal rate for RY 2008 is established in section II.C. of this interim final rule with comment period at $38,086.04 (the same as the standard Federal rate for 2007). However, as we discussed in section II.D. of this interim final rule with comment period, section 114(e)(2) of the MMSEA specifically indicates that this rate “shall not apply to discharges occurring on or after July 1, 2007, and before April 1, 2008.” Therefore, payments for discharges occurring on or after July 1, 2007 through March 31, 2008, are based on $38,356.45 (as established in the RY 2008 LTCH PPS final rule), while for discharges occurring on or after April 1, 2008 through June 30, 2008, payments are based on the RY 2008 standard Federal rate which is $38,086.04. CMS' Office of the Actuary
(OACT)estimates a projected decrease of approximately $5 million in estimated aggregate LTCH PPS payments for RY 2008 resulting from the change in payments for discharges occurring on or after April 1, 2008 through June 30, 2008. Additionally, as discussed in section II.B. of this interim final rule with comment period, section 114(c)(3) of MMSEA requires a 3-year suspension of our implementation of the revision to the SSO policy at § 412.529(c)(3)(i) that was finalized in the RY 2008 final rule. OACT estimates that the SSO provision included in the MMSEA will result in a projected increase in estimated aggregate LTCH PPS payments for RY 2008 of $20 million. Consequently, we estimate the combined impact on estimated aggregate LTCH PPS payments for RY 2008 from the MMSEA provisions that are presented in this interim final rule with comment period to be approximately $15 million. Because the combined distributional effects and estimated changes to the Medicare program payments would not be greater than $100 million, this interim final rule with comment period would not be considered a major economic rule, as defined in this section. The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6.5 million to $31.5 million in any 1 year. (For further information, see the Small Business Administration's regulation at 70 FR 72577, December 6, 2005.) Individuals and States are not included in the definition of a small entity. Because we lack data on individual hospital receipts, we cannot determine the number of small proprietary LTCHs. Therefore, we assume that all LTCHs are considered small entities for the purpose of this impact discussion. Medicare FIs and MACs are not considered to be small entities. As we discuss in detail throughout the preamble of this interim final rule with comment period, we believe that the provisions specified by the MMSEA presented in this rule would result in an increase in estimated aggregate LTCH PPS payments. Accordingly, the Secretary certifies that this interim final rule with comment period would not have a significant economic impact on a substantial number of small entities. In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. As stated above, implementing the provisions specified by the MMSEA that are discussed in this rule would result in an increase in estimated aggregate LTCH PPS payments; therefore, we believe this rule will not have a significant impact on small rural hospitals. Accordingly, the Secretary certifies that this interim final rule with comment period would not have a significant economic impact on the operations of a substantial number of small rural hospitals. Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2008, that threshold level is currently approximately $130 million. This interim final rule with comment period would not mandate any requirements for State, local, or tribal governments, nor would it result in expenditures by the private sector of $130 million or more in any 1 year. Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this regulation does not impose any costs on State or local governments, the requirements of Executive Order 13132 are not applicable. In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget. List of Subjects in 42 CFR Part 412 Administrative practice and procedure, Health facilities, Medicare, Puerto Rico, Reporting and recordkeeping requirements. For the reasons stated in the preamble of this interim final rule with comment period, the Centers for Medicare & Medicaid Services is amending 42 CFR Chapter IV as follows: PART 412—PROSPECTIVE PAYMENT SYSTEMS FOR INPATIENT HOSPITAL SERVICES 1. The authority citation for part 412 is revised to read as follows: Authority: Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh). 2. In § 412.1 paragraph (a)(4) is revised to read as follows: § 412.1 Scope of part.
(a)* * *
(4)This part implements the following regarding long-term care hospitals—
(i)Section 123 of Public Law 106-113, which provides for the establishment of a prospective payment system for the costs of inpatient hospital services furnished to Medicare beneficiaries by long-term care hospitals described in section 1886(d)(1)(B)(iv) of the Act, for cost reporting periods beginning on or after October 1, 2002.
(ii)The provisions of section 307(b) of Public Law 106-554, which state that the Secretary shall examine and may provide for appropriate adjustments to the long-term care hospital prospective payment system, including adjustments to diagnosis-related group
(DRG)weights, area wage adjustments, geographic reclassification, outlier adjustments, updates, and disproportionate share adjustments consistent with section 1886(d)(5)(F) of the Act.
(iii)Section 114 of Public Law 110-173, which contains several provisions regarding long-term care hospitals, including the—
(A)Amendment of section 1886 of the Act to add a new subsection
(m)that references section 123 of Public Law 106-113 and section 307(b) of Public Law 106-554 for the establishment and implementation of a prospective payment system for payments under title XVIII for inpatient hospital services furnished by a long-term care hospital described in section 1886(d)(1)(B)(iv) of the Act.
(B)Revision of the standard Federal rate for RY 2008. 3. Section 412.500 is amended by revising paragraph
(a)to read as follows: § 412.500 Basis and scope of subpart.
(a)*Basis.* This subpart implements the following:
(1)Section 123 of Public Law 106-113, which provides for the implementation of a prospective payment system for long-term care hospitals described in section 1886(d)(1)(B)(iv) of the Act.
(2)Section 307 of Public Law 106-554, which states that the Secretary shall examine and may provide for appropriate adjustments to that system, including adjustments to DRG weights, area wage adjustments, geographic reclassification, outliers, updates, and disproportionate share adjustments consistent with section 1886(d)(5)(F) of the Act.
(3)Section 114 of Public Law 110-173, which contains several provisions regarding long-term care hospitals, including the—
(i)Amendment of section 1886 of the Act to add a new subsection
(m)that references section 123 of Public Law 106-113 and section 307(b) of Public Law 106-554 for the establishment and implementation of a prospective payment system for payments under title XVIII for inpatient hospital services furnished by a long-term care hospital described in section 1886(d)(1)(B)(iv) of the Act; and
(ii)Revision of the standard Federal rate for RY 2008. 4. Section 412.523 is amended by revising paragraph (c)(3)(iv) to read as follows: § 412.523 Methodology for calculating the Federal prospective payment rates.
(c)* * *
(3)* * *
(iv)*For long-term care hospital prospective payment system rate year beginning July 1, 2007 and ending June 30, 2008.*
(A)The standard Federal rate for long-term care hospital prospective payment system rate year beginning July 1, 2007 and ending June 30, 2008 is the same as the standard Federal rate for the previous long-term care hospital prospective payment system rate year. The standard Federal rate is adjusted, as appropriate, as described in paragraph
(d)of this section.
(B)With respect to discharges occurring on or after July 1, 2007 and before April 1, 2008, payments are based on the standard Federal rate in paragraph (c)(3)(iii) of this section updated by 0.71 percent. 5. Section 412.529 is amended by— A. Revising paragraphs (c)(1) through (c)(3). B. Redesignating paragraph (c)(4) as paragraph (f). C. Revising newly redesignated paragraph (f). § 412.529 Special payment provision for short-stay outliers.
(c)* * *
(1)*Discharges occurring before July 1, 2006.* For discharges from long-term care hospitals described under § 412.23(e)(2)(i), occurring before July 1, 2006, the LTCH prospective payment system adjusted payment amount for a short-stay outlier case is the least of the following amounts:
(i)One hundred and twenty
(120)percent of the LTC-DRG specific per diem amount determined under paragraph (d)(1) of this section.
(ii)One hundred and twenty
(120)percent of the estimated cost of the case determined under paragraph (d)(2) of this section.
(iii)The Federal prospective payment for the LTC-DRG determined under paragraph (d)(3) of this section.
(2)*Discharges occurring on or after July 1, 2006 and before July 1, 2007 and discharges occurring on or after December 29, 2007 and before December 29, 2010.* For discharges from long-term care hospitals described under § 412.23(e)(2)(i) occurring on or after July 1, 2006 and before July 1, 2007 and discharges occurring on or after December 29, 2007 and before December 29, 2010, the LTCH prospective payment system adjusted payment amount for a short-stay outlier case is the least of the following amounts:
(i)One hundred and twenty
(120)percent of the LTC-DRG specific per diem amount determined under paragraph (d)(1) of this section.
(ii)One hundred
(100)percent of the estimated cost of the case determined under paragraph (d)(2) of this section.
(iii)The Federal prospective payment for the LTC-DRG as determined under paragraph (d)(3) of this section.
(iv)An amount payable under subpart O computed as a blend of an amount comparable to the hospital inpatient prospective payment system per diem amount determined under paragraph (d)(4)(i) of this section and the 120 percent of the LTC-DRG specific per diem payment amount determined under paragraph (d)(1) of this section.
(A)The blend percentage applicable to the 120 percent of the LTC-DRG specific per diem payment amount determined under paragraph (d)(1) of this section is determined by dividing the covered length-of-stay of the case by the lesser of five-sixths of the geometric average length of stay of the LTC-DRG or 25 days, not to exceed 100 percent.
(B)The blend percentage of the amount determined under paragraph (d)(4)(i) of this section is determined by subtracting the percentage determined in paragraph
(A)from 100 percent.
(3)*Discharges occurring on or after July 1, 2007 and before December 29, 2007 and discharges occurring on or after December 29, 2010.* For discharges from long-term care hospitals described under § 412.23(e)(2)(i) occurring on or after July 1, 2007 and before December 29, 2007 and discharges occurring on or after December 29, 2010, the LTCH prospective payment system adjusted payment amount for a short-stay outlier case is adjusted by either of the following:
(i)If the covered length of stay of the case assigned to a particular LTC-DRG is less than or equal to one standard deviation from the geometric ALOS of the same DRG under the inpatient prospective payment system (the IPPS-comparable threshold), the LTCH prospective payment system adjusted payment amount for such a case is the least of the following amounts:
(A)One hundred and twenty
(120)percent of the LTC-DRG specific per diem amount determined under paragraph (d)(1) of this section.
(B)One hundred
(100)percent of the estimated cost of the case determined under paragraph (d)(2) of this section.
(C)The Federal prospective payment for the LTC-DRG as determined under paragraph (d)(3) of this section.
(D)An amount payable under subpart O of this part comparable to the hospital inpatient prospective payment system per diem amount determined under paragraph (d)(4) of this section.
(ii)If the covered length of stay of the case assigned to a particular LTC-DRG is greater than one standard deviation from the geometric ALOS of the same DRG under the inpatient prospective payment system (the IPPS-comparable threshold), the LTCH prospective payment system adjusted payment amount for such a case is determined under paragraph (c)(2) of this section.
(f)*Reconciliation of short-stay outlier payments.* Payments are reconciled in accordance with one of the following:
(1)*Discharges occurring on or after October 1, 2002, and before August 8, 2003.* For discharges occurring on or after October 1, 2002, and before August 8, 2003, no reconciliations are made to short-stay outlier payments upon cost report settlement to account for differences between cost-to-charge ratio and the actual cost-to-charge ratio of the case.
(2)*Discharges occurring on or after August 8, 2003, and before October 1, 2006.* For discharges occurring on or after August 8, 2003, and before October 1, 2006, short-stay outlier payments are subject to the provisions of § 412.84(i)(1), (i)(3), and (i)(4) and
(m)for adjustments of cost-to-charge ratios.
(3)*Discharges occurring on or after October 1, 2003, and before October 1, 2006.* For discharges occurring on or after October 1, 2003, and before October 1, 2006, short-stay outlier payments are subject to the provisions of § 412.84(i)(2) for adjustments to cost-to-charge ratios.
(4)*Discharges occurring on or after October 1, 2006.* For discharges occurring on or after October 1, 2006, short-stay outlier payments are subject to the following provisions:
(i)CMS may specify an alternative to the cost-to-charge ratio otherwise applicable under paragraph (f)(4)(ii) of this section. A hospital may also request that its fiscal intermediary use a different (higher or lower) cost-to-charge ratio based on substantial evidence presented by the hospital. This request must be approved by the appropriate CMS Regional Office.
(ii)The cost-to-charge ratio applied at the time a claim is processed is based on either the most recent settled cost report or the most recent tentatively settled cost report, whichever is from the latest cost reporting period.
(iii)The fiscal intermediary may use a statewide average cost-to-charge ratio, which CMS establishes annually, if it is unable to determine an accurate cost-to-charge ratio for a hospital in one of the following circumstances:
(A)A new hospital that has not yet submitted its first Medicare cost report. (For this purpose, a new hospital is defined as an entity that has not accepted assignment of an existing hospital's provider agreement in accordance with § 489.18 of this chapter.)
(B)A hospital whose cost-to-charge ratio is in excess of 3 standard deviations above the corresponding national geometric mean. CMS establishes and publishes this mean annually.
(C)Any other hospital for which data to calculate a cost-to-charge ratio are not available.
(iv)Any reconciliation of outlier payments is based on the cost-to-charge ratio calculated based on a ratio of costs to charges computed from the relevant cost report and charge data determined at the time the cost report coinciding with the discharge is settled.
(v)At the time of any reconciliation under paragraph (f)(4)(iv) of this section, outlier payments may be adjusted to account for the time value of any underpayments or overpayments. Any adjustment is based upon a widely available index to be established in advance by the Secretary, and is applied from the midpoint of the cost reporting period to the date of reconciliation. (Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program) Dated: April 4, 2008. Kerry Weems, Acting Administrator, Centers for Medicare & Medicaid Services. Approved: April 30, 2008. Michael O. Leavitt, Secretary. [FR Doc. 08-1217 Filed 5-1-08; 4:00 pm]
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Traces to 29 documents
28 references not yet in our index
  • 5 CFR 250
  • 7 CFR 318.13
  • 7 CFR 305
  • 7 CFR 305.31
  • 7 CFR 305.34
  • 7 CFR 3015
  • 7 CFR 1
  • 7 CFR 372
  • 7 CFR 318
  • 7 USC 7701-7772
  • 7 CFR 2.22
  • 14 CFR 39
  • 33 CFR 117
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • 38 CFR 3
  • 40 CFR 52
  • Pub. L. 104-4
  • 109 Stat. 48
  • 40 CFR 63
  • 42 CFR 412
  • Pub. L. 106-113
  • Pub. L. 106-554
  • Pub. L. 110-173
  • Pub. L. 96-354
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Fed. Reg.Notices
Fed. Reg.Notices
Fed. Reg.Notices
U.S.C.§ 4321
U.S.C.§ 3501
U.S.C.§ 136
U.S.C.§ 2
Cite5 CFR 250
Cite7 CFR 318.13
Cite7 CFR 305
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