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Code · REGISTER · 2008-05-07 · PROPOSED RULES · Notices

Notices. Final rule

155,027 words·~705 min read·/register/2008/05/07/08-1225

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-2008-05-07.xml --- 73 89 Wednesday, May 7, 2008 Contents Agricultural Agricultural Research Service NOTICES Intent to Grant Exclusive License, 25641 E8-10018 Agriculture Agriculture Department See Agricultural Research Service See Animal and Plant Health Inspection Service See Foreign Agricultural Service See Forest Service Animal Animal and Plant Health Inspection Service RULES Foreign Quarantine Notices CFR Correction, 25505 E8-9962 Army Army Department See Engineers Corps NOTICES Notice of Intent to Prepare an Environmental Impact Statement:
Grow the Army Actions; Fort Carson, CO, 25686 E8-10007 Centers Centers for Medicare & Medicaid Services PROPOSED RULES Medicare Program; Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities for FY 2009, 25918-25960 08-1214 NOTICES Medicare Program: Inpatient Psychiatric Facilities Prospective Payment System Payment Update for Rate Year Beginning July 1, 2008 (RY 2009), 25709-25749 08-1213 Civil Civil Rights Commission NOTICES Meetings: Missouri Advisory Committee, 25644 E8-10155 Rhode Island Advisory Committee, 25644 E8-10075 Coast Guard Coast Guard RULES National Maritime Week Tugboat Races, 25508 E8-10240 Transportation Worker Identification Credential
(TWIC)Implementation in the Maritime Sector: Hazardous Materials Endorsement for a Commercial Driver's License, 25562-25566 E8-10232 PROPOSED RULES Safety Zone: Red Bull Air Race, Detroit River, Detroit, MI, 25624-25627 E8-10238 NOTICES Meetings: Public Workshop on Marine Technology and Standards, 25756-25757 E8-10239 Transportation Worker Identification Credential
(TWIC)Implementation in the Maritime Sector: Hazardous Materials Endorsement for a Commercial Driver's License, 25757-25758 E8-10244 Commerce Commerce Department See Foreign-Trade Zones Board See Industry and Security Bureau 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, 25644-25645 E8-10049 Commodity Commodity Futures Trading Commission NOTICES Request for Public Comment: Concept Release on the Appropriate Regulatory Treatment of Event Contracts, 25669-25674 E8-9981 Defense Defense Department See Army Department See Engineers Corps NOTICES 36(b)(1) Arms Sales Notification, 25674-25684 E8-9827 E8-9828 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25684-25686 E8-10073 E8-10074 Meetings: Threat Reduction Advisory Committee Closed Meeting, 25686 E8-10070 Drug Drug Enforcement Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25769-25770 E8-10082 E8-10084 Education Education Department NOTICES Advanced Placement Incentive Program; Overview Information: Inviting Applications for New Awards for Fiscal Year (FY 2008), 25688-25692 E8-10106 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25693 E8-10087 Employment Employment and Training Administration NOTICES Affirmative Determination Regarding Application for Reconsideration: Norcal Pottery Products; Richmond, CA, 25772 E8-10035 Fraser Timber Limited Ashland, ME, 25772 E8-10031 Amended Certification Eligibility to Apply for Worker Adjustment Assistance, etc.: Lanxess Sybron Chemicals, Inc.; Birmingham, NJ, 25772-25773 E8-10033 Eligibility Certification for Worker Adjustment Assistance, etc.: Giant Merchandising, Inc. et al.; Rochester, MN, 25773 E8-10029 Negative Determination Regarding Application for Reconsideration: Chase Home Finance LLC; Lexington, KY, 25773-25774 E8-10034 Richloom Home Fashions Division of Richloom Fabrics Corp.; Clinton, SC, 25773 E8-10030 Revised Determination on Reconsideration: Parlex U.S.A, etc.; Marathon, MA, 25774 E8-10032 Termination of Investigation: Brockway Mould, Inc., Brockport, PA, 25774-25775 E8-10028 Energy Energy Department See Energy Efficiency and Renewable Energy Office See Federal Energy Regulatory Commission NOTICES Meetings: Environmental Management Site-Specific Advisory Board, Hanford, 25693-25694 E8-10098 Energy Energy Efficiency and Renewable Energy Office NOTICES Meetings: State Energy Advisory Board, 25694 E8-10096 Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Rio del Oro Specific Plan Project, Rancho Cordova, Sacramento County, CA, 25687-25688 E8-10216 EPA Environmental Protection Agency RULES Approval and Promulgation of Air Quality Implementation Plans; Connecticut; Interstate Transport of Pollution, 25516-25518 E8-9964 Chlorantraniliprole; Pesticide Tolerance, 25518-25524 E8-9950 Exemption from the Requirement of a Tolerance: Bacillus Firmus Isolate (1582), 25524-25528 E8-10121 Pesticide Tolerances: Pyridalyl, 25528-25533 E8-9823 Spirodiclofen, 25533-25539 E8-9826 NOTICES Adequacy Status of Motor Vehicle Emissions Budgets: Coachella Valley 8-hour Ozone Early Progress Plan for Transportation Conformity Purposes; California, 25694 E8-9959 Meetings: Chartered Science Advisory Board, 25695 E8-10138 Total Coliform Rule Distribution System Advisory Committee, 25695-25696 E8-10118 Receipt and Status Information: Certain New Chemicals, 25696-25700 E8-10141 Triclosan Risk Assessment; Notice of Availability and Risk Reduction Options, 25700-25702 E8-9945 Executive Executive Office of the President See Presidential Documents FAA Federal Aviation Administration RULES Crewmember and Dispatcher Training Programs, 25506-25507 E8-10205 Establishment of Class E Airspace; Fort Kent, ME, 25506 E8-9831 PROPOSED RULES Airworthiness Directives: Boeing Model 747 100 Series Airplanes; Supplemental Notice of Proposed Rulemaking; Reopening of Comment Period, 25601-25606 E8-10060 Boeing Model 777-200 Series Airplanes, 25599-25601 E8-10059 Bombardier Model CL 600 2B19 (Regional Jet Series 100 & 440) Airplanes, 25612-25614 E8-10097 CFM International, S.A. CFM56 5B1/P Turbofan Engine Airplane Series, 25597-25599 E8-10050 Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB 135BJ Airplanes; Supplemental Notice of Proposed Rulemaking; Reopening of Comment Period, 25606-25609 E8-10063 Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB 135ER, et al.; Supplemental Notice of Proposed Rulemaking; Reopening of Comment Period, 25609-25612 E8-10065 FCC Federal Communications Commission RULES Ancillary Terrestrial Components in the 1.6/2.4 GHz Big LEO Bands, 25591-25592 E8-10095 Hearing Aid-Compatible Mobile Handsets: Petition of American National Standards Institute Accredited Standards Committee C63
(EMC)ANSI ASC C63, 25566-25591 E8-9855 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-10111 25702-25704 E8-10113 Federal Emergency Federal Emergency Management Agency RULES Final Flood Elevation Determinations, 25542-25562 E8-10114 E8-10140 PROPOSED RULES Proposed Flood Elevation Determinations, 25633-25640 E8-10152 NOTICES Major Disaster Declaration; Amendment: Indiana, 25758 E8-10144 Missouri, 25758 E8-10145 Federal Energy Federal Energy Regulatory Commission RULES Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities, 25832-25916 E8-9073 Federal Highway Federal Highway Administration NOTICES Environmental Impact Statement: Mobile County, Alabama Rescind Notice of Intent, 25823 E8-10053 FMC Federal Maritime Commission NOTICES Agreements Filed, 25704 E8-10148 Meetings: Federal Maritime Commission, 25704 E8-9872 Ocean Transportation Intermediary License Correction, 25705 E8-10122 Ocean Transportation Intermediary License: Applicants, 25705 E8-10149 Revocations, 25704-25705 E8-10132 Federal Railroad Federal Railroad Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25823-25825 E8-10091 Federal Reserve Federal Reserve System RULES Extensions of Credit by Federal Reserve Banks, 25505-25506 E8-10021 PROPOSED RULES Privacy Act Regulation, 25594-25597 E8-9927 NOTICES Change in Bank Control Notices: Acquisition of Shares of Bank or Bank Holding Companies, 25705-25706 E8-10057 FTC Federal Trade Commission PROPOSED RULES Prohibitions on Market Manipulation and False Information in Subtitle B of the Energy Independence and Security Act of 2007, 25614-25624 E8-10102 NOTICES TALX, Inc.; Analysis of Proposed Consent Order to Aid Public Comment, 25706-25708 E8-10027 Financial Financial Management Service See Fiscal Service Fiscal Fiscal Service NOTICES Surety Companies Acceptable on Federal Bonds: Financial Casualty & Surety, Inc., 25826 E8-9960 Fish Fish and Wildlife Service NOTICES Proposed Low-Effect Safe Harbor Agreement: Southwestern Willow Flycatcher for Landowners Restoring, Enhancing, or Managing Riparian Habitats in Washington, Iron, Garfield, Kane, Emery, Grand, Wayne, 25764-25765 E8-10055 Receipt of 41 Applications for Incidental Take Permits for Single Family and Duplex Residential Developments on the Fort Morgan Peninsula, Baldwin County, AL, 25765-25766 E8-10052 Food Food and Drug Administration RULES Certain Other Dosage Form New Animal Drugs; Sevoflurane, 25507-25508 E8-10153 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25749-25752 E8-10180 E8-10194 Guidance for Industry and Food and Drug Administration Staff: Administrative Procedures for CLIA Categorization; Availability, 25752-25753 E8-10178 MISSING FOR: Foreign Agricultural Service Foreign Agricultural Service NOTICES Privacy Act; Systems of Records, 25641-25642 E8-10006 Foreign Foreign Assets Control Office NOTICES Additional Designation of Individuals and Entities Pursuant to Executive Order 12978, 25826-25828 E8-10026 MISSING FOR: Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES Foreign-Trade Zone 26 Atlanta, GA; Withdrawal of Application for Subzone Status: Kia Motors Manufacturing Georgia, Inc. (Motor Vehicles), 25645 E8-10077 Foreign-Trade Zone 38 Spartanburg County, SC; Request for Manufacturing Authority: ZF Lemforder Corp., 25645 E8-10089 Trade Zone 14, Little Rock, Arkansas: Application for Subzone Status; Husqvarna Outdoor Products Inc.; (Outdoor Power Products Manufacturing); Nashville, Arkansas, 25645-25646 E8-10086 Zone 14, Little Rock, Arkansas Application for Subzone Status Husqvarna Outdoor Products Inc.; (Outdoor Power Products Manufacturing), De Queen, Arkansas, 25646-25647 E8-10085 Forest Forest Service NOTICES Intent to Prepare an Environmental Impact Statement Tongass National Forest, AK, 25642-25644 E8-9929 GSA General Services Administration RULES Federal Travel Regulation; Relocation Income Tax Allowance Tax Tables-2008 Update, 25539-25542 E8-10022 Health Health and Human Services Department See Centers for Medicare & Medicaid Services See Food and Drug Administration See National Institutes of Health Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency See Transportation Security Administration See U.S. Citizenship and Immigration Services RULES Homeland Security Acquisition Regulation (HSAR); Definitions of Words and Terms CFR correction, 25592 E8-10061 NOTICES Meetings: Project 25 Compliance Assessment Program Governing Board, 25756 E8-10214 Housing Housing and Urban Development Department NOTICES Funding Awards for 2007 Fiscal Year: Healthy Homes and Lead Hazard Control Grant Programs, 25762-25763 E8-10004 Meetings: Manufactured Housing Consensus Committee, 25763-25764 E8-10008 Indian Indian Affairs Bureau NOTICES Final Agency Determination to Take Land into Trust: Land Acquisitions; Federated Indians of Graton Rancheria, California, 25766-25768 E8-10064 Industry Industry and Security Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25647-25648 E8-10083 Kabba & Amir Investments, Inc. d.b.a. International Freight Forwarders; Toronto, ON, Canada, 25648-25649 E8-9980 Recommended Decision and Order: Kabba & Amir Investments, Inc., d.b.a. International Freight Forwarders, 25649-25653 E8-9982 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau IRS Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-10154 25828-25829 E8-10157 International International Trade Administration NOTICES Antidumping: Ball Bearings and Parts Thereof from Germany, 25663-25664 E8-10161 Preliminary Results of Antidumping Duty Administrative Reviews and Intent to Rescind Reviews in Part: Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and the United Kingdom, 25654-25663 E8-10078 Rescission of Countervailing Duty Administrative Review: Certain Cut-to-Length Carbon-Quality Steel Plate from the Republic of Korea, 25664-25665 E8-10090 International International Trade Commission NOTICES Investigations: Certain Ink Cartridges and Components Thereof, 25768-25769 E8-9984 Justice Justice Department See Drug Enforcement Administration See National Institute of Corrections Labor Labor Department See Employment and Training Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25771-25772 E8-10038 Land Land Management Bureau NOTICES Realty Action; Noncompetitive Lease of Public Land; Grand County, Utah; Re-issuance, 25768 E8-10051 Library Library of Congress PROPOSED RULES Definition of Cable System, 25627-25633 E8-10088 Millennium Millennium Challenge Corporation NOTICES January 1, 2008-March 31, 2008 Quarterly Report, 25775-25783 E8-10076 NASA National Aeronautics and Space Administration NOTICES Meetings: Advisory Council; Science Committee; Earth Science Subcommittee, 25783 E8-10017 Aerospace Safety Advisory Panel, 25783 E8-10016 National Institute National Institute of Corrections NOTICES Meetings: National Institute of Corrections Advisory Board, 25771 E8-9986 National Institute National Institute of Standards and Technology NOTICES Meetings: Malcolm Baldrige National Quality Award Board of Overseers, 25665 E8-10092 NIH National Institutes of Health NOTICES Meetings: Blue Ribbon Panel, 25753-25754 E8-10011 National Cancer Institute, 25754 E8-10013 E8-10014 Scientific Advisory Committee on Alternative Toxicological Methods, 25754-25755 E8-10010 NOAA National Oceanic and Atmospheric Administration RULES Fisheries Off West Coast States CFR Correction, 25592-25593 E8-10062 NOTICES Atlantic Highly Migratory Species; Atlantic Shark Management Measures, 25665-25667 08-1225 Federal Consistency Appeals by Weavers Cove Energy, LLC, and Mill River Pipeline, LLC., 25667-25668 E8-10012 File No. 1614-01; Endangered Species, 25668 E8-10108 Receipt of Application for Amendment: File No. 540-1811; Marine Mammals, 25668-25669 E8-10104 National Science National Science Foundation NOTICES Meetings: Advisory Committee for International Science and Engineering (25104); Arlington, VA, 25783-25784 E8-10036 Proposal Review; Arlington, VA, 25784 E8-10037 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Re-Opening of Comment Period: Petition for Rulemaking; Classification of Polyurethane Foam and Certain Finished Products, 25825-25826 E8-10101 Postal Postal Service RULES General Information on Postal Service, 25508-25509 E8-9498 New Address Requirements for Automation, Presorted, and Carrier Route Flat-Size Mail, 25509-25516 E8-8621 Presidential Presidential Documents PROCLAMATIONS *Special observances:* National Charter Schools Week (Proc. 8251), 25503-25504 08-1236 Public Public Debt Bureau See Fiscal Service SEC Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-10040 E8-10041 25784-25789 E8-10042 E8-10047 Application: Fidelity Rutland Square Trust, et al., 25789-25793 E8-9996 RBB Fund, Inc. and Abundance Technologies, Inc., 25794 E8-10015 Order Making Fiscal Year 2009 Annual Fee Rates Adjustments, 25795-25805 E8-10068 Self-Regulatory Organizations; Proposed Rule Changes: American Stock Exchange LLC, 25805-25809 E8-10019 Boston Stock Exchange, Inc., 25809-25811 E8-10072 Chicago Board Options Exchange, Inc., 25811-25815 E8-10023 E8-10039 E8-10071 Municipal Securities Rulemaking Board, 25815-25816 E8-10024 New York Stock Exchange LLC, 25816-25818 E8-9995 NYSE Arca, Inc., 25818-25821 E8-10025 Suspension of Trading Order: Health Professionals, Inc., 25821 08-1235 Social Social Security Administration RULES Privacy and Disclosure of Official Records and Information, 25507 E8-9998 State State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25821-25822 E8-10115 Delegation of Authority: To Submit Certain Non-proliferation Reports to the Congress, 25822 E8-10112 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Railroad Administration See Pipeline and Hazardous Materials Safety Administration NOTICES Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits: Filed Under Subpart B, (Week Ending March 14, 2008), 25822 E8-10056 Aviation Proceedings: March 14, 2008; Agreements filed the week ending, 25822-25823 E8-10058 Transportation Transportation Security Administration RULES Transportation Worker Identification Credential
(TWIC)Implementation in the Maritime Sector: Hazardous Materials Endorsement for a Commercial Driver's License, 25562-25566 E8-10232 Treasury Treasury Department See Fiscal Service See Foreign Assets Control Office See Internal Revenue Service MISSING FOR: U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25758-25762 E8-10067 E8-10069 E8-10174 Separate Parts In This Issue Part II Energy Department, Federal Energy Regulatory Commission, 25832-25916 E8-9073 Part III Health and Human Services Department, Centers for Medicare & Medicaid Services, 25918-25960 08-1214 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 89 Wednesday, May 7, 2008 Rules and Regulations AGRICULTURE DEPARTMENT Animal and Plant Health Inspection Service 7 CFR Part 319 Foreign Quarantine Notices CFR Correction In title 7 of the Code of Federal Regulations, parts 300 to 399, revised as of January 1, 2008, on page 401, in § 319.56-13, in the table in paragraph (a), under Thailand, the entries for Litchi and Longan are removed. [FR Doc. E8-9962 Filed 5-6-08; 8:45 am] BILLING CODE 1505-01-D FEDERAL RESERVE SYSTEM 12 CFR Part 201 [Regulation A] Extensions of Credit by Federal Reserve Banks AGENCY: Board of Governors of the Federal Reserve System. ACTION: Final rule. SUMMARY: The Board of Governors of the Federal Reserve System (Board) has adopted final amendments to its Regulation A to reflect the Board's approval of a decrease in the primary credit rate at each Federal Reserve Bank. The secondary credit rate at each Reserve Bank automatically decreased by formula as a result of the Board's primary credit rate action. DATES: The amendments to part 201 (Regulation A) are effective May 7, 2008. The rate changes for primary and secondary credit were effective on the dates specified in 12 CFR 201.51, as amended. FOR FURTHER INFORMATION CONTACT: Jennifer J. Johnson, Secretary of the Board (202/452-3259); for users of Telecommunication Devices for the Deaf
(TDD)only, contact 202/263-4869. SUPPLEMENTARY INFORMATION: The Federal Reserve Banks make primary and secondary credit available to depository institutions as a backup source of funding on a short-term basis, usually overnight. The primary and secondary credit rates are the interest rates that the twelve Federal Reserve Banks charge for extensions of credit under these programs. In accordance with the Federal Reserve Act, the primary and secondary credit rates are established by the boards of directors of the Federal Reserve Banks, subject to the review and determination of the Board. The Board approved requests by the Reserve Banks to decrease by 25 basis points the primary credit rate in effect at each of the twelve Federal Reserve Banks, thereby decreasing from 2.50 percent to 2.25 percent the rate that each Reserve Bank charges for extensions of primary credit. As a result of the Board's action on the primary credit rate, the rate that each Reserve Bank charges for extensions of secondary credit automatically decreased from 3.00 percent to 2.75 percent under the secondary credit rate formula. The final amendments to Regulation A reflect these rate changes. The 25-basis-point decrease in the primary credit rate was associated with a similar decrease in the target for the federal funds rate (from 2.25 percent to 2.00 percent) approved by the Federal Open Market Committee (Committee) and announced at the same time. A press release announcing these actions indicated that: Recent information indicates that economic activity remains weak. Household and business spending has been subdued and labor markets have softened further. Financial markets remain under considerable stress, and tight credit conditions and the deepening housing contraction are likely to weigh on economic growth over the next few quarters. Although readings on core inflation have improved somewhat, energy and other commodity prices have increased, and some indicators of inflation expectations have risen in recent months. The Committee expects inflation to moderate in coming quarters, reflecting a projected leveling-out of energy and other commodity prices and an easing of pressures on resource utilization. Still, uncertainty about the inflation outlook remains high. It will be necessary to continue to monitor inflation developments carefully. The substantial easing of monetary policy to date, combined with ongoing measures to foster market liquidity, should help to promote moderate growth over time and to mitigate risks to economic activity. The Committee will continue to monitor economic and financial developments and will act as needed to promote sustainable economic growth and price stability. Regulatory Flexibility Act Certification Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Board certifies that the new primary and secondary credit rates will not have a significantly adverse economic impact on a substantial number of small entities because the final rule does not impose any additional requirements on entities affected by the regulation. Administrative Procedure Act The Board did not follow the provisions of 5 U.S.C. 553(b) relating to notice and public participation in connection with the adoption of these amendments because the Board for good cause determined that delaying implementation of the new primary and secondary credit rates in order to allow notice and public comment would be unnecessary and contrary to the public interest in fostering price stability and sustainable economic growth. For these same reasons, the Board also has not provided 30 days prior notice of the effective date of the rule under section 553(d). List of Subjects in 12 CFR Part 201 Banks, Banking, Federal Reserve System, Reporting and recordkeeping. Authority and Issuance For the reasons set forth in the preamble, the Board is amending 12 CFR Chapter II to read as follows: PART 201—EXTENSIONS OF CREDIT BY FEDERAL RESERVE BANKS (REGULATION A) 1. The authority citation for part 201 continues to read as follows: Authority: 12 U.S.C. 248(i)-(j), 343 *et seq.* , 347a, 347b, 347c, 348 *et seq.* , 357, 374, 374a, and 461. 2. In § 201.51, paragraphs
(a)and
(b)are revised to read as follows: § 201.51 Interest rates applicable to credit extended by a Federal Reserve Bank. 1 1 The primary, secondary, and seasonal credit rates described in this section apply to both advances and discounts made under the primary, secondary, and seasonal credit programs, respectively.
(a)*Primary credit.* The interest rates for primary credit provided to depository institutions under § 201.4(a) are: Federal Reserve Bank Rate Effective Boston 2.25 May 1, 2008. New York 2.25 April 30, 2008. Philadelphia 2.25 May 1, 2008. Cleveland 2.25 April 30, 2008. Richmond 2.25 May 1, 2008. Atlanta 2.25 April 30, 2008. Chicago 2.25 April 30, 2008. St. Louis 2.25 May 1, 2008. Minneapolis 2.25 May 1, 2008. Kansas City 2.25 April 30, 2008. Dallas 2.25 May 1, 2008. San Francisco 2.25 April 30, 2008.
(b)*Secondary credit.* The interest rates for secondary credit provided to depository institutions under § 201.4(b) are: Federal Reserve Bank Rate Effective Boston 2.75 May 1, 2008. New York 2.75 April 30, 2008. Philadelphia 2.75 May 1, 2008. Cleveland 2.75 April 30, 2008. Richmond 2.75 May 1, 2008. Atlanta 2.75 April 30, 2008. Chicago 2.75 April 30, 2008. St. Louis 2.75 May 1, 2008. Minneapolis 2.75 May 1, 2008. Kansas City 2.75 April 30, 2008. Dallas 2.75 May 1, 2008. San Francisco 2.75 April 30, 2008. By order of the Board of Governors of the Federal Reserve System, May 1, 2008. Jennifer J. Johnson, Secretary of the Board. [FR Doc. E8-10021 Filed 5-6-08; 8:45 am] BILLING CODE 6210-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2008-0059; Airspace Docket No. 08-ANE-90] Establishment of Class E Airspace; Fort Kent, ME AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule, confirmation of effective date. SUMMARY: This action confirms the effective date of a direct final rule published in the **Federal Register** (73 FR 9451) that establishes Class E Airspace at Fort Kent, ME to support a new Area Navigation
(RNAV)Global Positioning System
(GPS)Special Instrument Approach Procedure
(IAP)that has been developed for medical flight operations into the Northern Maine Medical Center. DATES: Effective 0901 UTC, June 5, 2008. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Melinda Giddens, System Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone
(404)305-5610. SUPPLEMENTARY INFORMATION: Confirmation of Effective Date The FAA published this direct final rule with a request for comments in the **Federal Register** on February 21, 2008 (73 FR 9451), Docket No. FAA-2008-0059; Airspace Docket No. 08-ANE-90. The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on June 5, 2008. No adverse comments were received, and thus this notice confirms that effective date. Issued in College Park, Georgia, on April 18, 2008. John D. Haley, Acting Manager, System Support Group, Eastern Service Center, Air Traffic Organization. [FR Doc. E8-9831 Filed 5-6-08; 8:45 am] BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 121 Crewmember and Dispatcher Training Programs AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule; technical amendment. SUMMARY: The FAA is issuing this technical amendment to reserve subparts BB and CC in 14 CFR part 121. The FAA is engaged in rulemaking and anticipates codifying the new regulations in part 121 subparts BB and CC. DATES: This rule is effective on May 7, 2008. FOR FURTHER INFORMATION CONTACT: Cindy Nordlie, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone:
(202)267-9677. SUPPLEMENTARY INFORMATION: Discussion The FAA is engaged in rulemaking to revise regulations for crewmember and dispatcher training programs in domestic, flag, and supplemental operations. The FAA anticipates codifying the revised training regulations for crewmembers in subpart BB of part 121 and regulations for dispatchers in subpart CC of part 121. The FAA is issuing this technical amendment to reserve subparts BB and CC in 14 CFR part 121 to ensure that these subparts will be available for this future rulemaking. List of Subjects 14 CFR Part 121 Air carriers, Aircraft, Aviation safety, Reporting and recordkeeping requirements, Safety, Transportation. The Amendment In consideration of the foregoing, the Federal Aviation Administration amends part 121 of Title 14, Code of Federal Regulations, as follows: PART 121—OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL OPERATIONS 1. The authority citation for part 121 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 46105. Subpart BB—[Reserved] 2. Add and reserve subpart BB, consisting of §§ 121.1200 through 121.1399. Subpart CC—[Reserved] 3. Add and reserve subpart CC, consisting of §§ 121.1400 through 121.1499. Issued in Washington, DC on May 1, 2008. Pamela Hamilton-Powell, Director, Office of Rulemaking. [FR Doc. E8-10205 Filed 5-6-08; 8:45 am] BILLING CODE 4910-13-P SOCIAL SECURITY ADMINISTRATION 20 CFR Parts 401 and 402 [Docket No. SSA-2007-0067] RIN 0960-AG14 Privacy and Disclosure of Official Records and Information AGENCY: Social Security Administration (SSA). ACTION: Final rule. SUMMARY: We are issuing this final rule to adopt without change the final rules with request for comment published on December 10, 2007, at 72 FR 69616. This final rule amends the regulation at 20 CFR Part 401, Appendix A, which requires us to release an employee's location of duty station upon request. This final rule also revises the regulation at 20 CFR 402.45 that describes the availability of records. DATES: *Effective Date:* This rule is effective May 7, 2008. FOR FURTHER INFORMATION CONTACT: Edie McCracken, Social Insurance Specialist, Office of Public Disclosure, 3-A-6 Operations Building, 6401 Security Boulevard, Baltimore, MD 21235-6401,
(410)965-6117. For information on eligibility or filing for benefits, call our national toll-free numbers, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet Web site, Social Security Online, at *http://www.socialsecurity.gov* . SUPPLEMENTARY INFORMATION: Electronic Version The electronic file of this document is available on the date of publication in the **Federal Register** at *http://www.gpoaccess.gov/fr/index.html* . Background We are implementing a nationwide program to enhance the safety and security of our employees who are victims, or potential victims, of domestic violence. In order to safeguard their anonymity we will not disclose their work location and/or phone number to individuals who pose a threat to their personal safety. This final rule will strengthen our privacy and disclosure rules to better safeguard at-risk employees by amending 20 CFR Part 401, Appendix A (c)(4) to remove the sentence, “Location of duty station, including room number and telephone number.” We are also revising 20 CFR 402.45 to add a new paragraph
(e)describing the rules governing the release of personally identifiable information. The changes in our rule will allow us to implement the Identity Protection Program (IPP). The IPP enhances the safety and security of our employees who reasonably believe that they are at risk of injury or other harm if certain employment information about them is disclosed. As it is a national program, the IPP ensures uniform application of the policy for at-risk employees. Public Comments The final rule with request for public comments that was published on December 10, 2007, and effective January 9, 2008, provided the public with a 60-day comment period. We received no comments. Regulatory Procedures Executive Order 12866, as Amended We have consulted with the Office of Management and Budget
(OMB)and determined that this final rule does not meet the criteria for a significant regulatory action under Executive Order (E.O.) 12866, as amended. Thus, it is not subject to OMB review. Regulatory Flexibility Act We certify that this final rule does not have a significant economic impact on a substantial number of small entities because it affects individuals. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required. Paperwork Reduction Act This final rule imposes no reporting or record keeping requirements subject to OMB clearance. (Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance; 96.006, Supplemental Security Income) List of Subjects 20 CFR Parts 401 and 402 Administrative practice and procedure, Freedom of information, Privacy. Dated: April 30, 2008. Michael J. Astrue, Commissioner of Social Security. Accordingly, the final rule with request for comments, amending parts 401 and 402 of chapter III of title 20 of the Code of Federal Regulations that was published at 72 FR 69616 on December 10, 2007, is adopted as a final rule without change. [FR Doc. E8-9998 Filed 5-6-08; 8:45 am] BILLING CODE 4191-02-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 529 Certain Other Dosage Form New Animal Drugs; Sevoflurane AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect approval of an abbreviated new animal drug application (ANADA) filed by Minrad, Inc. The ANADA provides for the use of sevoflurane inhalant anesthetic in dogs. DATES: This rule is effective May 7, 2008. FOR FURTHER INFORMATION CONTACT: John K. Harshman, Center for Veterinary Medicine (HFV-104), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8197, e-mail: *john.harshman@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: Minrad, Inc., 836 Main St., 2nd floor, Buffalo, NY 14202, filed ANADA 200-438 that provides for use of PETREM (sevoflurane) inhalant anesthetic in dogs. Minrad, Inc.'s PETREM is approved as a generic copy of SEVOFLO, sponsored by Abbott Laboratories, under NADA 141-103. The ANADA is approved as of April 3, 2008, and the regulations are amended in § 529.2150 to reflect the approval. In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 529 Animal drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 529 is amended as follows: PART 529—CERTAIN OTHER DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 529 continues to read as follows: Authority: 21 U.S.C. 360b. 2. In § 529.2150, revise paragraphs
(a)and
(b)to read as follows: § 529.2150 Sevoflurane.
(a)*Specifications* . Sevoflurane liquid.
(b)*Sponsors* . See Nos. 000074 and 060307 in § 510.600(c) of this chapter. Dated: April 28, 2008. Bernadette Dunham, Director, Center for Veterinary Medicine. [FR Doc. E8-10153 Filed 5-6-08; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket No. USCG-2008-0313] National Maritime Week Tugboat Races AGENCY: Coast Guard, DHS. ACTION: Notice of enforcement of regulation. SUMMARY: The Coast Guard will enforce the National Maritime Week Tugboat Races Special Local Regulations in Elliott Bay from 12 p.m. through 4:30 p.m. on May 10, 2008. This action is necessary to ensure the safety of participants and spectators during the National Maritime Week Tugboat Races. During the enforcement period, entry into, transit through, mooring, or anchoring within the regulated area is prohibited unless authorized by the Captain of the Port, Puget Sound or his designated representatives. DATES: The regulations in 33 CFR Part 100.1306 will be enforced from 12 p.m. through 4:30 p.m. on May 10, 2008. FOR FURTHER INFORMATION CONTACT: Lieutenant James M. Dupureur, c/o Captain of the Port Puget Sound, Coast Guard Sector Seattle, 1519 Alaskan Way South, Seattle, WA 98134 at
(206)217-6045. SUPPLEMENTARY INFORMATION: The Coast Guard will enforce the special local regulations for the annual National Maritime Week Tugboat Races in 33 CFR Part 100.1306 on May 10, 2008, from 12 p.m. to 4:30 p.m. Under the provisions of 33 CFR 100.1306, entry into, transit through, mooring, or anchoring within the regulated area is prohibited unless authorized by the Captain of the Port, Puget Sound or his designated representatives. Spectator vessels may safely transit outside the regulated area but may not anchor, block, loiter in, or impede the transit of race participants or official patrol vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation. This notice is issued under authority of 33 CFR 100.1306(c) and 5 U.S.C. 552(a). Dated: April 23, 2008. Stephen P. Metruck, Captain, U.S. Coast Guard, Captain of the Port, Puget Sound. [FR Doc. E8-10240 Filed 5-6-08; 8:45 am] BILLING CODE 4910-15-P POSTAL SERVICE 39 CFR Part 111 General Information on Postal Service AGENCY: Postal Service. ACTION: Final rule. SUMMARY: The Postal Service announces the issuance of Issue 300, dated January 8, 2006; Issue 300, dated March 15, 2007; and Issue 300, dated May 14, 2007, of the Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), and their incorporation by reference in the Code of Federal Regulations. DATES: *Effective Date:* This final rule is effective on May 7, 2008. The incorporation by reference of Issue 300, dated January 8, 2006, of the DMM and Issue 300 dated July 15, 2007, of the DMM is approved by the Director of the Federal Register as of May 7, 2008. FOR FURTHER INFORMATION CONTACT: Sharon Daniel,
(202)268-7304. SUPPLEMENTARY INFORMATION: The most recent Issue 300 of the Domestic Mail Manual was issued on July 15, 2007. It replaced the previous Issue 300 of the DMM and contained all DMM revisions from January 8, 2006 through July 15, 2007. The Issue 300 of the DMM that preceded that issue, was issued on January 8, 2006 and contained all DMM revisions from January 5, 2005 through January 8, 2006. These new Issues of the DMM contain all USPS domestic mailing standards, organized in a way that is more intuitive to the user. These new issues continue to
(1)increase the user's ability to find information,
(2)increase confidence that users have found all the information they need, and
(3)reduce the need to consult multiple chapters of the Manual to locate necessary information. Issue 300, dated July 15, 2007, set forth specific changes, such as new standards throughout the DMM to support the pricing changes recommended by the Postal Regulatory Commission in Docket No. R2006-1 and approved by the Governors of the United States Postal Service. New prices were implemented on May 14, 2007 for all classes of mail except Periodicals. Issue 300, dated January 8, 2006, also set forth specific changes such as new prices throughout the DMM to adopt the postal rates and fees resulting from the R2005-1 rate case. Changes to mailing standards will continue to be published through **Federal Register** notices and the Postal Bulletin, and will appear in the next printed version of Mailing Standards of the United States Postal Service, Domestic Mail Manual, and in the online version available via Postal Explorer *http://pe.usps.com* . List of Subjects in 39 CFR Part 111 Administrative practice and procedure, Incorporation by reference. In view of the considerations discussed above, the Postal Service hereby amends 39 CFR part 111 as follows: PART 111—GENERAL INFORMATION ON POSTAL SERVICE 1. The authority citation for part 111 continues to read as follows: Authority: 39 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633, 5001. 2. Amend § 111.3(f) by adding the following new entries at the end of the table: § 111.3 Amendment to the Mailing Standards of the United States Postal Service, Domestic Mail Manual.
(f)* * * Transmittal letter for issue Dated Federal Register publication * * * * * * * Issue 300 January 8, 2006 [Insert FR citation for this Final Rule]. Issue 300 July 15, 2007 [Insert FR citation for this Final Rule]. 3. Amend § 111.4 by removing “March 23, 2005” and adding “May 7, 2008.” Neva R. Watson, Attorney, Legislative. [FR Doc. E8-9498 Filed 5-6-08; 8:45 am] BILLING CODE 7710-12-P POSTAL SERVICE 39 CFR Part 111 New Address Requirements for Automation, Presorted, and Carrier Route Flat-Size Mail AGENCY: Postal Service TM . ACTION: Final rule. SUMMARY: The Postal Service adopts new address placement and formatting requirements for Periodicals, Standard Mail®, Bound Printed Matter, Media Mail®, and Library Mail flat-size pieces sent at automation, presorted, or carrier route prices. We also adopt related revisions for automation and presorted First-Class Mail® flats. DATES: *Effective Date:* March 29, 2009. FOR FURTHER INFORMATION CONTACT: Carrie Witt, 202-268-7279. SUPPLEMENTARY INFORMATION: The Postal Service is implementing a new technology, the Flats Sequencing System (FSS), to automate delivery sequencing for flat-size mail. Currently, flat-size mail is sorted mechanically only to the 9-digit ZIP Code TM or carrier level, and then manually sorted into delivery order by carriers. FSS can sort flat-size mailpieces into delivery sequence, increasing efficiency by reducing carriers' time sorting mail, and allowing carriers to begin delivering mail earlier in the day. Similar technology boosted postal efficiencies in processing and delivering letter mail in the 1990s. We can significantly increase efficiency and reduce delivery costs for flat-size mail with FSS technology. FSS can sequence flat mail at a rate of approximately 16,500 pieces per hour. Scheduled to operate 17 hours per day, each machine will be capable of sequencing 280,500 mailpieces daily to more than 125,000 delivery addresses. As we move toward national deployment of FSS, we are working closely with the mailing industry to make the most of this investment and achieve the lowest combined costs for handling flat-size mail, including developing new standards for optimal addressing. Unlike letter mail, which is fairly uniform in size and address location, flat mail covers a broad range of sizes and has highly variable address placement. We need new mailing standards for this diverse mailstream to promote consistent addressing for all flat-size pieces and increase efficiency in flats processing and delivery operations. Toward this goal, we are adopting new standards to require the delivery address in the upper portion of all Periodicals, Standard Mail, Bound Printed Matter, Media Mail, and Library Mail flat-size pieces mailed at automation, presorted, or carrier route prices. Mailers may place the address parallel or perpendicular to the top edge, but not upside down as read in relation to the top edge. The new standards define “upper portion” as the top half of a mailpiece, but we encourage mailers to place the address as close to the top edge as possible (while still maintaining a 1/8 -inch clearance from the edge). Mailers must also address all presorted, carrier route, and automation flat-size mailpieces using a minimum of 8-point type or, if the mailpiece bears a POSTNET TM or Intelligent Mail® barcode with a delivery point routing code, a minimum of 6-point type in all capital letters. In addition, for all automation price pieces, the characters in the address must not overlap, the address lines must not touch or overlap, and each address element may be separated by no more than five blank character spaces. The new standards will enable FSS to process flat-size pieces in delivery sequence at high speeds and output the pieces in vertical bundles that are optimized for carrier delivery. The new placement criteria will take advantage of the vertical bundle output and significantly reduce the time carriers spend reorienting pieces to read the address—whether the mail is held, pulled from a mailbag, or removed from a tray. The new standards for type size and line spacing will ensure carriers can read the addresses and delineate delivery stops. With over a quarter million carriers delivering mail six days a week, there are substantial opportunities to gain efficiency. As we transition to the new addressing standards, mailers can take advantage of the Intelligent Mail barcode to save space within the address block. For example, the Intelligent Mail barcode can include tracking and routing information that currently requires human-readable ACS TM codes and keylines. We also reduced the amount of clear space required under the Intelligent Mail barcode to 0.028 inch (mailers can access the full technical specification for the Intelligent Mail barcode at *http://ribbs.usps.gov/onecodesolution* ). The Intelligent Mail barcode will be required on all pieces claiming automation prices in the future. Mailers can find more information in the **Federal Register** notice, “Implementation of Intelligent Mail Barcodes,” published on January 7, 2008 (available on Postal Explorer® at *http://pe.usps.com;* click “Federal Register Notices” in the left frame). Because the new barcode requirements are laid out in a separate **Federal Register** proceeding, we removed them from this final rule. Summary of Comments We published a proposal for comment in the **Federal Register** (72 FR 57507) on October 10, 2007. We received comments from 24 mailers, seven associations, four presort bureaus, three large printers, and two consultants. We appreciate the time these commenters took to detail their questions, concerns, and suggestions. We also appreciate the sample mailpieces that many mailers included to illustrate their feedback. Comments on Address Placement Twenty-eight commenters objected to the proposed standards for address placement that would require the delivery address to be 3 inches (for horizontal addresses) or 2.5 inches (for vertical addresses) from the top of a mailpiece. These commenters objected for creative reasons, financial reasons, or both. Twenty-five of these commenters cited a loss of design options, on a mailpiece cover or coverwrap, or on an insert showing through polywrap. These commenters said the new address placement would compromise their cover designs and result in mailpieces that look “tacky” or “cheap.” We did not intend to compromise mailpiece design. In response to these concerns, we revised our standards to allow mailers to place the delivery address within the top half of their mailpieces. While we strongly prefer the address as close to the top as possible, the top half provides additional design options for most mailpieces. For example, on a typical 8- by 11-inch magazine with an address positioned parallel to the top edge, our proposal would have required the address within the top 3 inches. The revised standards allow this address anywhere within the top half—5.5 inches in this example—providing an additional 2.5-inch band for the address. For pieces addressed vertically, we will allow the delivery address to run into the bottom half of the mailpiece if the address is placed within 1 inch of the top edge. This caveat will ensure that mailers can use vertical addresses on shorter pieces, where the delivery address might not fit entirely within the top half, and provides many design options overall for these types of flats. We note that many mailpieces already comply with the new address placement standards. We have also received publications from mailers who successfully moved their addresses into compliance with our proposal. These mailers did not indicate that the design of their mailpieces had been compromised as a result. Several commenters objected to the standards that prohibit a horizontal address from appearing upside-down as read in relation to the top edge. These commenters point out that the address would be upside down on an unenveloped piece when the spine is to the left, as a publication is normally held. They raise concerns about response cards that appear on the front of a publication (usually on a cover wrap) that include the delivery address and solicit a reply. These commenters foresee a loss of revenue from decreased subscriber renewal rates and decreased advertising response rates if they place the address upside down on their reply cards. We note that the new standards still provide mailers with the option to position a response card vertically on a mailpiece, with the address reading either to the left or to the right. A horizontal address, which would appear upside down when the spine is positioned on the left, is not required. A total of 21 commenters objected to the address placement standards for financial reasons, stating that the new requirements would adversely affect their costs or their ability to generate revenue. In addition to the concerns about response rates noted above, these commenters explained that the new requirements would add costs for spot-glue on inserts and onserts; new or reconfigured equipment and mailing software; and larger address labels or new window envelopes. The revised standards, which allow the delivery address within the top half of a mailpiece, provide additional options for many mailpieces and should lessen the impact of the change across the flats mailstream. We are providing a year-long implementation timeframe to allow mailers to prepare for the new standards, adjust mailpiece design if needed, and obtain any new mailing supplies and equipment. We are committed to working with mailers to reduce the total cost of the flats mailstream. Matching mail preparation requirements to processing and delivery needs will help the Postal Service and the mailing industry achieve a lowest-combined-cost system. Flats mail volume exceeded 52 billion pieces in 2007 and represented about one-quarter of the total volume. The new address standards provide a significant opportunity to improve efficiency and save costs for both mailers and the Postal Service. Four commenters objected to placing delivery addresses over their magazine titles. Our standards do not require or encourage mailers to place the delivery address over their publication titles. To clarify, publications mailed in polybags have three options to avoid covering the title: at the foot of the front cover, the foot of the back cover, or at the head of the back cover. For publications that are not mailed in polybags, our standards specifically prevent mailers from placing an address in the traditional title area of a magazine or catalog (the head of the front cover). See illustration titled, “Front of Flat-Size Mailpiece.” Existing mailing standards for Periodicals publications specify that the publication title must be displayed prominently on the publication and any protective cover. Our new address standards do not change this practice. ER07MY08.011 Two commenters explained that their addresses may not comply on letter-size pieces that become flats if filled to more than 1/4 -inch thick. While some mailers may need to adjust their mailpieces if they are used for mailing at both the letter and the flats prices, major changes are not needed in many instances. The new standards allow the delivery address in all but the center of a letter-size piece, and many mailers might make an adjustment by moving the address area to the right or the left (the “top” is either of the shorter edges on an enveloped piece, meaning the right or left edge on a typical letter). The postage and return address areas are not affected by our new standards. For mailers who must make adjustments, we are providing a year to meet the new standards and exhaust existing mailpiece stock. Comments on Address Characteristics Thirteen commenters objected to the 8-point type size requirement because it will require larger address labels than the labels they are currently using. In response to these concerns, we reduced the requirement to 6-point type (using all capital letters) on pieces that bear a POSTNET or an Intelligent Mail barcode that contains a delivery point routing code. In our models, we were able to place an Intelligent Mail barcode, the barcode clear zone, and at least six lines of text on a 1-inch label. We are also shortening optional endorsement lines and allowing mailers to place mailer-specified information (such as customer numbers) to the left of the optional endorsement line when OneCode ACS TM is used. We will publish more information about these initiatives in a separate DMM® revision. In addition, the Intelligent Mail barcode will give mailers new opportunities to save space in the address block. Six commenters objected to addressing automation pieces with individual characters and address lines that do not touch or overlap. These commenters said that the proposed standards would exclude handwriting and script fonts from automation pricing. We developed these standards on the basis of engineering tests of our optical character reader systems, which showed a significant drop in read rates for addresses with elements that touch or overlap. Some results showed as much as a 50 percent drop in read rates when the characters and lines are not clearly separated. Our processing systems must be able to read the recipient name in addition to the address (or barcode) to accurately route mailpieces. We do agree that many machine-printed script fonts will process adequately on our systems, even though these addresses will not achieve the highest read rates. To assist mailers who need these types of fonts to personalize or stylize their mailpieces, we changed the standard to specify that the individual characters in the address can touch, but cannot overlap. This standard will allow machine-printed script addresses. While we strongly prefer a sans-serif type of font, two script fonts that we have observed with adequate read rates are Monotype Corsiva and Bradley Hand ITC. Our revised standards still exclude most handwritten addresses, because we cannot process pieces with overlapping characters and undelineated address lines with acceptable read rates. In addition, our carriers rely on legible addresses to accurately sort their mail and delineate delivery stops on their routes. Handwriting is often difficult to read and impacts delivery efficiency. Five commenters objected to the requirement that each address element be separated by no more than three blank character spaces. These commenters stated that this standard is too limiting for software systems that use fixed field lengths. We revised the standard to allow mailers to separate address elements by a maximum of five blank spaces. The new standard will ensure readability and routing accuracy by keeping all address elements associated to the core address block, and not mistaken for extraneous information. Five commenters asked us to clarify our measurements for type size. We revised the standards to specify that each character in the delivery address must be at least 0.080 inch tall (0.065 inch for pieces bearing a POSTNET or an Intelligent Mail barcode that contains a delivery point routing code). These minimums apply to the height of the actual printed letter or figure (sometimes referred to as the “figure set” or “font set”). Four commenters asked us to clarify our definition of “blank character spaces.” We specify that a “blank” character space can equal the width of the widest character in the address. Two commenters objected to our preferred Arial font. We agree that many sans-serif fonts are similar to Arial and will process with acceptable read rates. We expanded our preference to “a sans-serif font.” We also added a preference for all capital letters to further define best addressing practices. Two commenters asked us to clarify indicia placement, and one commenter asked us to allow additional options. The new address standards do not change the existing four options for indicia placement listed in DMM 604.5.3.4, and we are not considering new options at this time. We will continue to evaluate indicia placement and modify the standards as needed. Comments Related to Implementation Ten commenters objected to the implementation date, stating that FSS volumes will be minimal next year and the new rules should coincide with fuller deployment. We disagree with these commenters. We need the new address standards as FSS is deployed across the country, not after, and we need new standards for carrier readability today. We can capture these efficiencies as soon as these changes are implemented, and we will continually evaluate the requirements and work with mailers to ensure that mail processing and mail preparation are aligned in the future. Nine commenters asked for information about acceptance procedures, tolerances, and penalties. We are still developing the policies that will apply to mailpieces that do not comply. We clarified the standards to specify a minimum measurement for type size, simplified the address placement standards, and broadened the spacing requirements. These changes eliminate uncertainty about these issues at acceptance and give mailers as much latitude as possible as they design and print their mailpieces. Five commenters asked for a second proposal to clarify the requirements, extend the implementation timeframe, and specify acceptance procedures and penalties. We do not agree that a second proposal is needed. Our final rule gives more options for most mailpieces, clarifies the new standards, and provides a full year for mailers to prepare for the changes. We will continue to work with mailers during this time to ensure a smooth transition to the new standards. We will also re-evaluate the new address criteria as the mailstream changes, and strengthen or lessen the requirements if needed, as we do with all of our mailing standards. Presort Bureau Comments Four commenters sent similar letters on behalf of presort bureaus that use multi-line optical character reader (MLOCR) technology, explaining that they consolidate mailpieces from many mailers into large mailings that may be mailed at discounted prices. These mailpieces are addressed before they reach the presort bureau, and commenters stated that they cannot ensure that all pieces are addressed correctly. We note that presort bureaus consolidate mailings that must meet many standards for the postage prices claimed. These commenters also stated that, if their MLOCR technology can read an address and spray a barcode, postal technology should also be able to read the address and the resulting barcode. We agree that pieces bearing an accurate POSTNET or Intelligent Mail barcode with a delivery point routing code can use a smaller address type size. We lessened the requirement to 6-point type (using all capital letters) for these pieces. We cannot eliminate the other address requirements. For acceptable read rates, our tests indicate that we need delivery addresses in 8-point type, with distinguishable characters and address lines, and with each element associated to the core address block. These commenters also raised concerns about how we will verify address format and the penalties for noncompliance in a combined mailing. They explained that sampling a consolidated mailing might reveal a disproportionate number of noncompliant addresses, since a given customer's mailpieces may not be randomly distributed throughout a mailing. We plan to verify addressing the same way we verify other standards in a combined mailing today. When an error is discovered, we attempt to trace the error back to an individual mailing and assess any additional postage on that portion only. Five commenters assert that the new address placement and formatting requirements should not apply to mail entered by presort bureaus and other mailers with similar business models. The new standards will apply to all flats mailed at automation, presorted, or carrier route prices. Summary of Changes From Proposed to Final Rule We specified in DMM 302.1.2 and 2.4 that each character in the address must be at least 0.080 inch high. We changed our font preference to “sans-serif” and added another preference for using all capital letters. We revised the standards for automation pieces in DMM 302.2.4 to allow the individual characters in the address to touch but not overlap, to allow up to five blank character spaces between each address element, and to allow addresses in 6-point type (using all capital letters) when a POSTNET or an Intelligent Mail barcode with a delivery point routing code is used. We also defined a “blank” space as equal to the width of the widest character in the address. We changed the terminology in DMM 302.2.0 from “address block” to “delivery address” for clarity. We revised the address placement standards in DMM 302.2.2 and 2.3 to require the entire delivery address within the top half of the mailpiece. We made related changes to the illustrations. We added a caveat that vertical addresses may cross the midline of a mailpiece if they are placed within 1 inch of the top edge. We revised DMM 302.2.2 to specify that when the delivery address is placed on an insert and polywrapped with the host piece, the address “must meet the placement standards throughout processing and delivery.” We removed the word “secured” because some inserts may meet this standard without being affixed. We revised DMM 707.3.2.3 and 3.3.10 for clarity. We removed the proposed barcode standards for automation pieces, because those standards are now handled in a separate **Federal Register** proceeding. We adopt the following amendments to *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), incorporated by reference in the *Code of Federal Regulations.* See 39 CFR 111.1. List of Subjects in 39 CFR Part 111 Administrative practice and procedure, Postal Service. Accordingly, 39 CFR Part 111 is amended as follows: PART 111—[AMENDED] 1. The authority citation for 39 CFR Part 111 continues to read as follows: Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633, and 5001. 2. Revise the following sections of *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), as follows: 300 Discount Mail: Flats 302 Elements on the Face of a Mailpiece 1.0 All Mailpieces *[Revise 1.2 as follows:]* 1.2 Delivery Address The delivery address specifies the location to which the USPS is to deliver a mailpiece. Except for mail prepared with detached address labels under 602.4.0, the mailpiece must have the address of the intended recipient, visible and legible, only on the side of the piece bearing postage (periodicals do not display postage and the address may appear on either side). Use at least 8-point type (each character must be at least 0.080 inch high). A sans-serif font is preferred. Addresses printed in all capital letters are also preferred. Additional standards apply to presorted, automation-compatible, and carrier route flats mailed at First-Class Mail, Periodicals, Standard Mail, Bound Printed Matter, Media Mail, and Library Mail prices (see 2.0). *[Renumber 2.0 through 4.0 as 3.0 through 5.0. Insert new 2.0 as follows:]* 2.0 Address Placement 2.1 Basic Standards On all Periodicals, Standard Mail, Bound Printed Matter, Media Mail, and Library Mail flats mailed at presorted, automation, or carrier route prices, mailers must place the delivery address at least 1/8 inch from any edge of the mailpiece. For the purposes of these standards, the “delivery address” is defined as the recipient's name or other identification; the company information line; the street and number, and any necessary secondary information; and the city, state, and ZIP Code. The delivery address may appear on the front or the back of the mailpiece (but must be on the side bearing postage, except for Periodicals), parallel or perpendicular to the top edge, but it cannot be upside down as read in relation to the top edge. See 2.2 for additional standards for enveloped or polywrapped pieces, and 2.3 for bound or folded pieces not in envelopes or polywrap. 2.2 Address Placement on Enveloped or Polywrapped Pieces The following standards apply to enveloped or polywrapped Periodicals, Standard Mail, Bound Printed Matter, Media Mail, and Library Mail flats mailed at presorted, automation, or carrier route prices: a. The “top” of the mailpiece is either of the shorter edges. b. The entire delivery address must be within the top half of the mailpiece (see Exhibit 2.2). Optimal placement is at the top edge (while maintaining the 1/8 -inch clearance requirement). If a vertical address will not fit entirely within the top half, the address may cross the midpoint if it is placed within 1 inch of the top edge. c. When the delivery address is placed on an insert polywrapped with the host piece, the address must meet the placement standards throughout processing and delivery. ER07MY08.012 2.3 Address Placement on Bound or Folded Pieces The following standards apply to bound or folded Periodicals, Standard Mail, Bound Printed Matter, Media Mail, and Library Mail flats mailed at presorted, automation, or carrier route prices not in envelopes or polywrap: a. The “top” is the upper edge of the mailpiece when the bound or final folded edge is vertical and on the right side of the piece. Exception: For Carrier Route (or Enhanced Carrier Route) saturation pieces, the “top” of the mailpiece is either of the shorter edges. b. The entire delivery address must be within the top half of the mailpiece (see Exhibit 2.3). Optimal placement is at the top edge (while maintaining the 1/8 -inch clearance requirement). If a vertical address will not fit entirely within the top half, the address may cross the midpoint if it is placed within 1 inch of the top edge. ER07MY08.013 2.4 Type Size and Line Spacing On all First-Class Mail, Periodicals, Standard Mail, Bound Printed Matter, Media Mail, and Library Mail flats mailed at presorted, automation, or carrier route prices, mailers must print the delivery address using at least 8-point type (each character must be at least 0.080 inch high). A sans serif font is preferred. Addresses printed in all capital letters are also preferred. These additional standards apply to automation price pieces: a. The individual characters in the address cannot overlap. The individual lines in the address cannot touch or overlap. A minimum 0.028-inch clear space between lines is preferred. b. Each element on each line of the address may be separated by no more than five blank character spaces. One or two blank spaces is preferred. For example, “ANYTOWN US 12345,” not “ANYTOWN US 12345.” A “blank” character space can equal the width of the widest character in the address. c. For pieces that bear a POSTNET barcode with a delivery point routing code under 708.4.2 or an Intelligent Mail barcode with a delivery point routing code under 708.4.3, mailers may print the delivery address in a minimum of 6-point type (each character must be at least 0.065 inch high) when all capital letters are used. 330 First-Class Mail 333 Prices and Eligibility 3.0 Eligibility Standards for First-Class Mail Flats 3.3 Additional Basic Standards for First-Class Mail All presorted First-Class Mail must: *[Revise introductory text in item f to reference the new address standards as follows (no change to items 1, 2, or 3):]* f. Bear a delivery address formatted according to 302.2.4 that includes the correct ZIP Code or ZIP+4 code and that meets these address quality standards: 340 Standard Mail 343 Prices and Eligibility 3.0 Basic Standards for Standard Mail Flats 3.3 Additional Basic Standards for Standard Mail Each Standard Mail mailing is subject to these general standards: *[Revise item e to reference the new address standards as follows:]* e. Each mailpiece must bear the addressee's name and delivery address, including the correct ZIP Code or ZIP+4 code, except as allowed when using alternative addressing formats under 602.3.0 or detached address labels under 602.4.0. Format and position the delivery address according to 302.2.0. 360 Bound Printed Matter 363 Prices and Eligibility 2.0 Basic Eligibility Standards for Bound Printed Matter 2.3 Delivery and Return Addresses *[Revise 2.3 to reference the new address standards as follows:] * All BPM mail must bear a delivery address formatted and positioned according to 302.2.0. The delivery address must include the correct ZIP Code or ZIP+4 code. Alternative addressing formats under 602.3.0 may be used. Except for unendorsed BPM, each mailpiece must bear the sender's return address. 370 Media Mail 373 Prices and Eligibility 3.0 Price Eligibility for Media Mail Flats 3.3 Delivery and Return Addresses *[Revise 3.3 to reference the new address standards as follows:] * All Media Mail must bear a delivery address formatted and positioned according to 302.2.0. The delivery address must include the correct ZIP Code or ZIP+4 code. Alternative addressing formats under 602.3.0 or detached address labels under 602.4.0 may be used. Each mailpiece must bear the sender's return address. 380 Library Mail 383 Prices and Eligibility 3.0 Price Eligibility for Library Mail Flats 3.3 Delivery and Return Addresses *[Revise 3.3 to reference the new address standards as follows:] * All Library Mail must bear a delivery address formatted and positioned according to 302.2.0. The delivery address must include the correct ZIP Code or ZIP+4 code. Alternative addressing formats under 602.3.0 or detached address labels under 602.4.0 may be used. Each mailpiece must bear the sender's return address. 700 Special Standards 707 Periodicals 3.0 Physical Characteristics and Content Eligibility 3.2 Addressing 3.2.3 Address Placement *[Revise 3.2.3 to reference the new address standards as follows:] * The delivery address must be clearly visible on or through the outside of the mailpiece, whether placed on a label or directly on the host publication, a component, or the mailing wrapper. The following standards apply: a. For flat-size pieces, mailers must follow the additional address placement and formatting standards in 302.2.0. b. If the address is placed on the mailing wrapper, the address must be on a flat side, not on a fold. c. If a polybag is used: 1. The address must not appear on a component that rotates within the bag. 2. The address must remain visible throughout the addressed component's range of motion. 3. The address must maintain placement according to 302.2.0 throughout processing and delivery. The address must not shift into a noncompliant position. *[Delete Exhibit 3.2.4,* Address Placement for Periodicals.] 3.3 Permissible Mailpiece Components 3.3.10 Label Carrier A label carrier may be used to carry the delivery address for the mailpiece and must consist of a single unfolded, uncreased sheet of card or paper stock, securely affixed to the cover of the publication or large enough so that it does not rotate inside the wrapper, subject to these conditions: *[Insert new item e as follows:]* e. For flat-size pieces, the label carrier must maintain address placement according to 302.2.0 throughout processing and delivery. The address on the label carrier must not shift into a noncompliant position. Neva R. Watson, Attorney, Legislative. [FR Doc. E8-8621 Filed 5-6-08; 8:45 am] BILLING CODE 7710-12-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2007-0452; A-1-FRL-8562-9] Approval and Promulgation of Air Quality Implementation Plans; Connecticut; Interstate Transport of Pollution AGENCY: Environmental Protection Agency (EPA). ACTION: Final Rule. SUMMARY: EPA is approving a State Implementation Plan
(SIP)revision submitted by the State of Connecticut. The SIP revision addresses the provisions of the Clean Air Act that require each state to address emissions that may adversely affect another state's air quality through interstate transport. The Connecticut Department of Environmental Protection has adequately addressed the four distinct elements related to the impact of interstate transport of air pollutants. These include prohibiting significant contribution to downwind nonattainment of the National Ambient Air Quality Standards (NAAQS), interference with maintenance of the NAAQS, interference with plans in another state to prevent significant deterioration of air quality, and interference with efforts of other states to protect visibility. This action is being taken under the Clean Air Act. DATES: *Effective Date:* This rule is effective on June 6, 2008. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA-R01-OAR-2007-0452. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays Copies of the documents relevant to this action are also available for public inspection during normal business hours, by appointment at the Bureau of Air Management, Department of Environmental Protection, State Office Building, 79 Elm Street, Hartford, CT 06106-1630. FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023, telephone number
(617)918-1664, fax number
(617)918-0664, e-mail *Burkhart.Richard@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Organization of this document. The following outline is provided to aid in locating information in this preamble. I. Background and Purpose II. Final Action III. Statutory and Executive Order Reviews I. Background and Purpose On November 5, 2007 (72 FR 62420), EPA published a Notice of Proposed Rulemaking
(NPR)for the State of Connecticut. The NPR proposed approval of Connecticut's Clean Air Act
(CAA)section 110(a)(2)(D)(i) transport SIP that was submitted by the Connecticut Department of Environmental Protection on March 13, 2007. Connecticut's SIP submittal addresses the CAA section 110(a)(2)(D)(i) requirements for the 1997 8-hour ozone and PM 2.5 NAAQS. Section 110(a)(2)(D)(i) of the CAA requires each state to submit a SIP that prohibits emissions that could adversely affect another state. The SIP must prevent sources in the state from emitting pollutants in amounts which will:
(1)Contribute significantly to downwind nonattainment of the NAAQS;
(2)interfere with maintenance of the NAAQS;
(3)interfere with provisions to prevent significant deterioration of air quality; and
(4)interfere with efforts to protect visibility. EPA issued guidance on August 15, 2006, relating to SIP submissions to meet the requirements of section 110(a)(2)(D)(i). 1 1 “Guidance for State Implementation Plan
(SIP)Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards,” Memorandum from William T. Harnett, EPA OAQPS, to EPA Regional Air Division Directors, August 15, 2006. As noted in the NPR, EPA has found that Connecticut has adequately addressed the four distinct elements related to the impact of interstate transport of air pollutants. The specific details of Connecticut's transport SIP and the rationale for EPA's approval are explained in the NPR and will not be restated here. No comments were received on the NPR. II. Final Action EPA is approving Connecticut's March 13, 2007 Clean Air Act section 110(a)(2)(D)(i) transport SIP submittal for the 1997 8-hour ozone and PM 2.5 NAAQS as a revision to the Connecticut SIP. This SIP submittal addresses the provisions of the Clean Air Act that require each state to submit a SIP to address emissions that may adversely affect another state's air quality through interstate transport. Connecticut has adequately addressed the four distinct elements related to the impact of interstate transport of air pollutants. These include prohibiting significant contribution to downwind nonattainment of the NAAQS, interference with maintenance of the NAAQS, interference with plans in another state to prevent significant deterioration of air quality, and interference with efforts of other states to protect visibility. Therefore, EPA is approving Connecticut's SIP submittal as meeting the Clean Air Act section 110(a)(2)(D)(i) requirements for the 1997 8-hour ozone and PM 2.5 NAAQS. As a consequence of this approval, EPA is no longer obligated to prepare a Federal Implementation Plan
(FIP)for Connecticut for this CAA requirement. The FIP was due on May 25, 2007, pursuant to a finding of failure to submit issued by EPA on April 25, 2005 (70 FR 21147). III. 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), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 7, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: April 22, 2008. Robert W. Varney, Regional Administrator, EPA New England. Part 52 of 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 H—Connecticut 2. Section 52.387 is added to read as follows: § 52.387 Interstate Transport for the 1997 8-hour ozone and PM 2.5 NAAQS. On March 13, 2007, the State of Connecticut submitted a State Implementation Plan
(SIP)revision addressing the Section 110(a)(2)(D)(i) interstate transport requirements of the Clean Air Act for the 1997 8-hour ozone and PM <sup>2.5</sup> National Ambient Air Quality Standards (NAAQS). There are four distinct elements related to the impact of interstate transport of air pollutants. These include prohibiting significant contribution to downwind nonattainment of the NAAQS, interference with maintenance of the NAAQS, interference with plans in another state to prevent significant deterioration of air quality, and interference with efforts of other states to protect visibility. EPA has found that Connecticut's March 13, 2007 submittal adequately addresses these four distinct elements and has approved the submittal as meeting the requirements of Section 110(a)(2)(D)(i) for the 1997 8-hour ozone and PM <sup>2.5</sup> NAAQS. [FR Doc. E8-9964 Filed 5-6-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0275; FRL-8357-3] Chlorantraniliprole; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes tolerances for residues of chlorantraniliprole in or on apple, wet pomace; brassica, head and stem, subgroup 5A; brassica, leafy greens, subgroup 5B; cotton, gin byproduct; cotton, hulls; cotton undelinted seed; fruit, pome, group 11; fruit, stone, group 12; grape; grape, raisin; potato; vegetable, cucurbit, group 9; vegetable, fruiting, group 8; vegetable, leafy, except brassica, group 4; milk; meat; meat byproduct; fat. E.I. DuPont de Nemours and Company requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA). This regulation also removes existing time-limited tolerances for residues of chlorantraniliprole in or on apple; apple, wet pomace; celery; cucumber; lettuce, head; lettuce, leaf; pear; pepper; spinach; squash; tomato and watermelon and modifies 40 CFR 180.628 by removing the third column (Expiration/Revocation Date) from the table in paragraph (a), since it is no longer applicable. In addition, this action establishes a time-limited tolerance for residues of chlorantraniliprole in or on rice in response to the approval of a specific exemption under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing the use the insecticide on rice to control rice water weevil, *Lissorhoptrus oryzophilus* . This regulation establishes a maximum permissible level of residues of chlorantraniliprole in this food commodity. The time-limited tolerance expires and is revoked on December 31, 2011. DATES: This regulation is effective May 7, 2008. Objections and requests for hearings must be received on or before July 7, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION) . ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2007-0275. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Kable Bo Davis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)306-0415; e-mail address: *davis.kable @epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0275 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before July 7, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2007-0275, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Petition for Tolerance In the **Federal Register** of April 30, 2007 (72 FR 21263) (FRL-8124-5), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 7F7181) by E.I. DuPont de Nemours and Company, DuPont Crop Protection, 1090 Elkton Road, Newark, DE 19711. The petition requested that 40 CFR 180.628 be amended by exempting the requirement of tolerances for residues of the insecticide chlorantraniliprole, 3-bromo- *N* -[4-chloro-2-methyl-6-[(methylamino) carbonyl]phenyl]-1-(3-chloro-2-pyridinyl)-1 H-pyrazole-5-carboxamide, in or on commodities. That notice referenced a summary of the petition prepared by E.I. DuPont de Nemours and Company, the registrant, which is available to the public in the docket, *http://www.regulations.gov* . There were no comments received in response to the notice of filing. Based upon review of the data supporting the petition, the Agency concluded that the request for exemption of tolerances for chlorantraniliprole is not appropriate. The appropriate tolerance levels for chlorantraniliprole residues in or on pending crops should be established as follows: Apple, wet pomace at 0.60 ppm, brassica, head and stem, subgroup 5A at 4.0 ppm, brassica, leafy greens, subgroup 5B at 11 ppm, cotton, gin byproduct at 30 ppm, cotton, hulls at 0.40 ppm, cotton, undelinted seed at 0.30 ppm, fruit, pome, group 11 at 0.30 ppm, fruit, stone, group 12 at 1.0 ppm, grape at 1.2 ppm, grape, raisin at 2.5 ppm, potato at 0.01 ppm, vegetable, cucurbit, group 9 at 0.25 ppm, vegetable, fruiting, group 8 at 0.70 ppm, vegetable, leafy, except brassica, group 4 at 13 ppm, milk at 0.01 ppm, meat at 0.01 ppm, meat byproducts at 0.01 ppm and fat at 0.01 ppm. EPA is also establishing a time-limited tolerance for residues of the insecticide chlorantraniliprole in or on rice, grain at 0.10 ppm and rice, straw at 0.25 ppm. This tolerance expires and is revoked on December 31, 2011. The Agency is establishing this time-limited tolerance in response to two specific exemption requests under FIFRA section 18 on behalf of the Louisiana Department of Agriculture and Forestry and the Texas Department of Agriculture for emergency use of chlorantraniliprole on rice seed to control rice water weevil, *Lissorhoptrus oryzophilus* . According to Louisiana, the current emergency situation with respect to rice water weevil management has arisen primarily from the continuing, and probably increasing, practice of cultivating crawfish in ponds in close proximity to rice fields in southern Louisiana and the phase-out of pyrethroid seed treatments as an alternative for control. All of the alternative insecticides, the liquid and fertilizer impregnated pyrethroid formulations, currently registered and available for use against weevil in Louisiana are toxic to crawfish and have a very short treatment window which frequently precludes their timely use due to unfavorable weather and insufficient availability of aerial applicators. Another constraint is that these insecticides only offer protection for 4 to 7 days, while adult weevil movement into flooded rice fields may occur over a several week period. Additionally, drift of foliar applied liquid insecticide alternatives to adjacent crawfish ponds have resulted in numerous crawfish kills. The Applicant claims that rice water weevil populations have historically plagued the state and that registered insecticides for this use and/or cultural practices are inadequate. According to Texas, the current emergency situation with respect to rice water weevil management has arisen primarily from the continuing, and probably increasing, practice of cultivating fish (catfish and hybrid stripped bass) and crawfish for commercial production in ponds in close proximity to rice fields and the loss of a registered seed treatment as an alternative for control. A great majority of the fish and crawfish ponds are close enough to rice fields to be affected by the management practices used in rice. All insecticides currently registered for use against weevil in Texas are toxic to fish and crawfish, and also are subject to the same timing and logistical challenges noted by Louisiana. The Applicant claims that the registered insecticides for this use and/or cultural practices are inadequate to control rice water weevil. As part of its assessment of the emergency exemption request, EPA assessed the potential risks presented by the residues of chlorantraniliprole in or on rice. In doing so, EPA considered the safety standard in section 408(b)(2) of FFDCA, and EPA decided that the necessary time-limited tolerance under section 408(l)(6) of FFDCA would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address the urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this time-limited tolerance without notice and opportunity for public comment as provided in section 408(l)(6) of FFDCA. Although, this time-limited tolerance expires and is revoked on December 31, 2011, under section 408(l)(5) of FFDCA, residues of the pesticide not in excess of the amount specified in the tolerance remaining in or on rice after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this time-limited tolerance at the time of application. EPA will take action to revoke this time-limited tolerance earlier if any experience with, scientific data, or other relevant information on this pesticide indicates that the residues are not safe. Because this time-limited tolerance is being approved under emergency conditions, EPA has not made any decisions about whether chlorantraniliprole meets EPA's registration requirements for use on rice or whether a permanent tolerance for this use would be appropriate. Under this circumstance, EPA does not believe that the time-limited tolerance serves as a basis for registration of chlorantraniliprole by a State for special local needs under FIFRA section 24(c). Nor does the time-limited tolerance serve as the basis for any State other than Louisiana and Texas to use this pesticide on this crop under section 18 of FIFRA without following all provisions of EPA's regulations implementing FIFRA section 18 as identified in 40 CFR part 166. III. Aggregate Risk Assessment and Determination of Safety Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” These provisions were added to FFDCA by the Food Quality Protection Act
(FQPA)of 1996. Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerance for residues of chlorantraniliprole on apple, wet pomace at 0.60 ppm, brassica, head and stem, subgroup 5A at 4.0 ppm, brassica, leafy greens, subgroup 5B at 11 ppm, cotton, gin byproduct at 30 ppm, cotton, hulls at 0.40 ppm, cotton, undelinted seed at 0.30 ppm, fruit, pome, group 11 at 0.30 ppm, fruit, stone, group 12 at 1.0 ppm, grape at 1.2 ppm, grape, raisin at 2.5 ppm, potato at 0.01 ppm, vegetable, cucurbit, group 9 at 0.25 ppm, vegetable, fruiting, group 8 at 0.70 ppm, vegetable, leafy, except brassica, group 4 at 13 ppm, milk at 0.01 ppm, meat at 0.01 ppm, meat byproducts at 0.01 ppm and fat at 0.01 ppm as well as the time-limited tolerance for residues of chlorantraniliprole on rice, grain at 0.10 pp and rice, straw at 0.25 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Chlorantraniliprole has no significant acute toxicity via the oral, dermal, and inhalation routes of exposure. The LD <sup>50</sup> for oral and dermal acute exposure is ≤5,000 mg/kg/day and the LC <sup>50</sup> for acute inhalation exposure is ≤5.1 mg/L. This substance is not an eye or skin irritant and does not cause skin sensitization. In short-term studies, the most consistent effects are those associated with non adverse pharmacological response to the xenobiotic, induction of liver enzymes and subsequent increase in liver weights. Chlorantraniliprole is not genotoxic, neurotoxic, immunotoxic, carcinogenic, or teratogenic. Furthermore, it is not uniquely toxic to the conceptus as there were no maternal or fetal effects in studies conducted in rats and rabbits. Based on the results of a 28-day dermal study in rats, as well as the dermal LD <sup>50</sup> study, chlorantraniliprole has relatively low dermal toxicity. Overall, chlorantraniliprole exhibits minimal mammalian toxicity after long-term exposure. The only consistent observation in the mammalian toxicology studies is an increased degree of microvesiculation of the adrenal cortex after dermal or dietary administration of chlorantraniliprole. Based on the lack of adverse effect on the function of the adrenal gland, this observation was considered treatment related, but not “adverse.” In addition to the adrenal effects, liver effects ( *e.g.* , increased liver weight and induction of Cytochrome P450 enzymes) were reported in the 90-day oral subchronic studies across species and only at the highest dose tested
(HDT)(<1,000 mg/kg/day). While in the subchronic studies, these effects were considered adaptive, the liver effects were more pronounced in the 18-month chronic mouse study at the HDT. Increased *eosinophilic foci* (preneoplastic foci) were noted in male mice at 935 mg/kg/day and liver hypertrophy and weight increase were evident at the next lower dose (158 mg/kg/day), but progression to tumors was not apparent for these effects. Therefore, the eosinophilic foci appear to be an adverse effect only seen in the HDT and was graded minimal in severity. Specific information on the studies received and the nature of the adverse effects caused by chlorantraniliprole as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at *http://www.regulations.gov* . The referenced document is available in the docket established by this action, which is described under ADDRESSES , and is identified as EPA-HQ-OPP-2007-0275 in that docket. B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern
(LOC)is derived from the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment. Uncertainty/safety factors
(UFs)are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose
(aPAD)and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. Short-, intermediate-, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure
(MOE)called for by the product of all applicable UFs is not exceeded. For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . A summary of the toxicological endpoints for chlorantraniliprole used for human risk assessment can be found at *http://www.regulations.gov* in document *Chlorantraniliprole (DPX-E2Y45): Human Health Risk Assessment for Proposed Uses on Pome fruit, Stone fruit, Leafy vegetables, Brassica leafy vegetables, Cucurbit vegetables, Fruiting vegetables, Cotton, Grapes, Potatoes, Rice, Turf and Ornamentals* at pages 22-24 in docket ID number EPA-HQ-OPP-2007-0275. C. Exposure Assessment 1. *Dietary exposure from food and feed uses* . In evaluating dietary exposure to chlorantraniliprole, EPA considered exposure under the petitioned-for tolerances as well as all existing chlorantraniliprole tolerances in (40 CFR 180.628). EPA assessed dietary exposures from chlorantraniliprole in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for chlorantraniliprole; therefore, a quantitative acute dietary exposure assessment is unnecessary. ii. *Chronic exposure* . In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 CSFII. As to residue levels in food, EPA assumed all foods for which there are tolerances were treated and contain tolerance-level residues. iii. *Cancer* . Because chlorantraniliprole has been classified as a “not likely human carcinogen”, a quantitative exposure assessment relative to cancer risk is not required. 2. *Dietary exposure from drinking water* . The Agency lacks sufficient monitoring data to complete a comprehensive dietary exposure analysis and risk assessment for chlorantraniliprole in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the environmental fate characteristics of chlorantraniliprole. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://www.epa.gov/oppefed1/models/water/index.htm* . Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated environmental concentrations
(EECs)of chlorantraniliprole for acute exposures are estimated to be 26.862 parts per billion
(ppb)for surface water and 1.06 ppb for ground water. The EECs for chronic exposures are estimated to be 3.650 ppb for surface water and 1.06 ppb for ground water. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. Because no acute hazard, attributable to a single dose, was identified; acute dietary risk was not assessed. For chronic dietary risk assessment, the water concentration value 3.650 ppb was used to access the contribution to drinking water. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Chlorantraniliprole is proposed for use on the following residential non-dietary sites: Turfgrass and ornamental plants. Although residential exposure could occur, due to the lack of toxicity identified for short- and intermediate-term durations via the relevant routes of exposure, no risk is expected from these exposures. Additional information on residential exposure assumptions can be found at *www.regulations.gov* (Docket ID EPA-HQ-OPP-2007-0275, pages 36 through 37). 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to chlorantraniliprole and any other substances and chlorantraniliprole does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that chlorantraniliprole has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. *In general* . Section 408 of FFDCA provides that EPA shall apply an additional tenfold (“10X”) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional FQPA safety factor value based on the use of traditional UFs and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity* . There were no effects on fetal growth or post-natal development up to the limit dose of 1,000 mg/kg/day in rats or rabbits in the developmental or 2-generation reproduction studies. Additionally, there were no treatment related effects on the numbers of litters, fetuses (live or dead), resorptions, sex ratio, or post-implantation loss and no effects on fetal body weights, skeletal ossification, and external, visceral, or skeletal malformations or variations. 3. *Conclusion* . EPA has determined that reliable data show that it would be safe for infants and children to reduce the FQPA safety factor to 1X. That decision is based on the following findings: i. The toxicology database for chlorantraniliprole is complete for the purposes of this risk assessment and the characterization of potential pre- and postnatal risks to infants and children. ii. No susceptibility was identified in the toxicological database, and there are no residual uncertainties re: pre-and/or postnatal exposure. iii. There are no treatment-related neurotoxic findings in the acute and subchronic oral neurotoxicity studies in rats. iv. The exposure assessment is protective: The dietary food exposure assessment utilizes tolerance level residues and 100% crop treated information for all commodities; the drinking water assessment utilizes values generated by models and associated modeling parameters which are designed to provide conservative, health protective, high-end estimates of water concentrations. By using these screening-level exposure assessments, the chronic dietary (food and drinking water) risk is not underestimated. v. Although residential exposure is expected over the short- and possibly intermediate-term (via the dermal and/or incidental oral route), there is no hazard expected via these routes/durations, and therefore no risk for these scenarios. E. Aggregate Risks and Determination of Safety Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the aPAD and cPAD. The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-, intermediate-, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the MOE called for by the product of all applicable UFs is not exceeded. 1. *Acute risk* . No acute risk is expected because no acute hazard, attributable to a single dose, was identified. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to chlorantraniliprole from food and water will utilize <1% of the cPAD for the population group children 1-2 years (the highest exposed subpopulation). Based on the use pattern, chronic residential exposure to residues of chlorantraniliprole is not expected. 3. *Short-term/intermediate risk* . Short-term aggregate and intermediate-term exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). There is potential for short- and intermediate-term postapplication dermal (adults and children) and incidental oral (children only) exposure to chlorantrantiliprole. However, due to the lack of toxicity via dermal route, as well as the lack of toxicity over the acute, short- and intermediate-term via the oral route - no risk is expected from these exposures. Inhalation exposure is not expected due to the low vapor pressure of chlorantraniliprole (so applied/deposited residues are not expected to volatilize into the air). 4. *Aggregate cancer risk for U.S. population* . Chlorantraniliprole has been classified as a “not likely human carcinogen.” It is not expected to pose a cancer risk to humans. 5. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to chlorantraniliprole residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology liquid chromatography/mass spectrometry (LC/MS/MS) is available to enforce the tolerance expression. The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:
(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits There are no international residue limits that affect the Agency's recommendations at this time. There are no Canadian, CODEX or Mexican maximum residue limits
(MRLs)for chlorantraniliprole. Secondary reasons that contribute to harmonization difficulties include use pattern differences (for one crop, application rates and formulations may be different in different countries due to different pest pressures/conditions). C. Response to Comments There were no comments received in response to the notice of filing. V. Conclusion Therefore, the tolerance is established for residues of chlorantraniliprole, 3-bromo- *N* -[4-chloro-2-methyl-6-[(methylamino) carbonyl]phenyl]-1-(3-chloro-2-pyridinyl)-1 H-pyrazole-5-carboxamide, in or on apple, wet pomace at 0.60 ppm, brassica, head and stem, subgroup 5A at 4.0 ppm, brassica, leafy greens, subgroup 5B at 11 ppm, cotton, gin byproduct at 30 ppm, cotton, hulls at 0.40 ppm, cotton, undelinted seed at 0.30 ppm, fruit, pome, group 11 at 0.30 ppm, fruit, stone, group 12 at 1.0 ppm, grape at 1.2 ppm, grape, raisin at 2.5 ppm, potato at 0.01 ppm, vegetable, cucurbit, group 9 at 0.25 ppm, vegetable, fruiting, group 8 at 0.70 ppm, vegetable, leafy, except brassica, group 4 at 13 ppm, milk at 0.01 ppm, meat at 0.01 ppm, meat byproducts at 0.01 ppm and fat at 0.01 ppm. In addition, this regulation establishes a time-limited tolerance for residues of chlorantraniliprole in or on rice, grain at 0.10 ppm and rice, straw at 0.25 ppm. VI. Statutory and Executive Order Reviews This final rule establishes tolerances under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, 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) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: April 24, 2008. Debra Edwards, Director, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.628 is amended by revising the table in paragraph
(a)and by adding text to paragraph
(b)to read as follows: § 180.628 Chlorantraniliprole; tolerances for residues.
(a)* * * Commodity Parts per million Apple, wet pomace 0.60 Brassica, head and stem, subgroup 5A 4.0 Brassica, leafy greens, subgroup 5B 11 Cattle, fat 0.01 Cattle, meat 0.01 Cattle, meat byproducts 0.01 Cotton, gin byproduct 30 Cotton, hulls 0.40 Cotton, undelinted seed 0.30 Fruit, pome, group 11 0.30 Fruit, stone, group 12 1.0 Goat, fat 0.01 Goat, meat 0.01 Goat, meat byproduct 0.01 Grape 1.2 Grape, raisin 2.5 Horse, fat 0.01 Horse, meat 0.01 Horse, meat byproduct 0.01 Milk 0.01 Potato 0.01 Sheep, fat 0.01 Sheep, meat 0.01 Sheep, meat byproduct 0.01 Vegetable, cucurbit, group 9 0.25 Vegetable, fruiting, group 8 0.70 Vegetable, leafy, except brassica, group 4 13
(b)*Section 18 emergency exemptions* . A time-limited tolerance is established for the residues of the insecticide chlorantraniliprole, 3-bromo- *N* -[4-chloro-2-methyl-6-[(methylamino) carbonyl]phenyl]-1-(3-chloro-2-pyridinyl)-1 H-pyrazole-5-carboxamide, in connection with use of the pesticide under a section 18 emergency exemption granted by EPA. This tolerance will expire and is revoked on the date specified in the following table. Commodity Parts per million Expiration/Revocation Date Rice, grain 0.10 12/31/11 Rice, straw 0.25 12/31/11 [FR Doc. E8-9950 Filed 5-6-08; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0159; FRL-8362-7] Bacillus firmus isolate 1582; Exemption from the Requirement of a Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes an exemption from the requirement of a tolerance for residues of the *Bacillus firmus* isolate 1582 or *Bacillus firmus* I-1582 on all food/feed commodities when applied/used as soil applications and seed treatments. AgroGreen submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of *Bacillus firmus* I-1582. DATES: This regulation is effective May 7, 2008. Objections and requests for hearings must be received on or before July 7, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ). ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2007-0159. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Shanaz Bacchus, Biopesticides and Pollution Prevention Division (7511P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-8097; e-mail address: *bacchus.shanaz@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicable provisions. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this “ **Federal Register** ” document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, as amended by FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0159 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before July 7, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2007-0159, by one of the following methods. • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Background and Statutory Findings In the **Federal Register** of March 21, 2007 (72 FR 13277) (FRL-8117-4), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 6F7111) by AgroGreen, Biological Division, Minrav Infrastructures
(1993)Ltd., 3 Habossem Str, P.O. Box 153, Ashdod 77101, Israel. The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of *Bacillus* firmus isolate I-1582 when used as a soil application or seed treatment. This notice included a summary of the petition prepared by the petitioner RegWest Company, LLC, 30856 Rocky Road, Greeley, CO 80631-9375, United States Department of Agriculture
(USDA)and submitted on behalf of AgroGreen. The current representative for AgroGreen is SciReg, Inc. 12733 Director's Loop, Woodbridge, VA 22192, USA. There were no comments received in response to the notice of filing. Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B) of FFDCA, in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C) of FFDCA, which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . . ” Additionally, section 408(b)(2)(D) of FFDCA requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues ” and “other substances that have a common mechanism of toxicity.” EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. III. Toxicological Profile Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. *Bacillus firmus* isolate 1582 (called *B* . firmus I-1582) (U.S. Patent No. 6,406,690) is a Microbial Pesticide Control Agent (MPCA). It is intended to be used as a biological nematode suppressant on fruits, vegetables, field crops, and on such non-food crops as turf, and ornamentals. Further information regarding this MPCA can be found in the Biopesticide Registration Action Document
(BRAD)on the Biopesticides and Pollution and Prevention Division website *http://www.epa.gov/pesticides/biopesticides* . Studies submitted to the agency were issued Master Record Identification numbers (MRIDs) and then reviewed by the Biopesticides and Pollution Prevention Division (BPPD). The Agency also considered these submissions in light of the new microbial pesticides data requirements, which became final on December 26, 2007 (72 FR 61002). The following summaries of the toxicological profile of *Bacillus firmus* isolate I-1582 are based on Agency reviews or Data Evaluation Records
(DERs)dated March 05, 2008. These reviews include the following acute toxicity/pathogenicity studies; oral, dermal, pulmonary and injection. a. *Acute oral toxicity/pathogenicity - rats (OPPTS 885.3050; MRID #46933007; DER 03/05/2008)* . Nineteen male and 19 female Sprague-Dawley rats were each treated by a single oral gavage dose of 0.1 mL per animal (>10 8 colony forming unit
(cfu)animal) of *Bacillus firmus* I-1582 spores. The presented data showed no clinical signs and no weight loss related to test substance in rats. *Bacillus firmus* I-1582 was detected in brain, blood, cecum content, kidneys, lungs, lymph nodes, and spleen of the treated animals with clearance from the blood by day 7 and from all other organs by day 14. Necropsy was not conducted. Based on the presented/submitted data, *Bacillus firmus* I-1582 does not appear to be toxic, infective, and/or pathogenic in rats, when dosed orally at >10 8 cfu/animal. This study was classified as “acceptable” and the pesticide considered Toxicity Category IV for acute oral effects. b. *Acute dermal toxicity/pathogenicity - rabbits (OPPTS 885.3100; MRID #46933008; DER 03/05/2008)* . Five male and five female New Zealand White rabbits were each treated with 5,050 milligrams/kilogram/bodyweight (mg/kg/bwt) *Bacillus firmus* I-1582 spore suspension applied to the clipped dorsal trunk in an area of approximately 10% of the body surface in a dermal occlusion test according to standard laboratory procedures. Animals were observed for dermal irritation 60 minutes after patch removal. The test animals were observed for mortality and clinical signs of toxicity at least three times on the day of treatment and once daily thereafter for 14 days. The rabbits were euthanized on day 14 and necropsies were performed. With the exception of one female that lost weight during the first week, all animals had normal body weight gain. All rabbits appeared normal during the study and all survived the study. Very slight to well defined erythema was observed on day 1 with clearance by day 4. No observable abnormalities were noted at necropsy. The dermal LD <sup>50</sup> for males, females, and combined was greater than 5,050 mg/kg. Thus, *Bacillus firmus* I-1582 is not toxic, infective, or pathogenic via the dermal route of exposure, and the active ingredient is placed in Toxicity Category IV for acute dermal effects. c. *Acute pulmonary toxicity/pathogenicity - rats (OPPTS 885.3150; MRID #46933009; DER 03/05/2008)* . Thirty male and 30 female Sprague-Dawley rats received 0.1 mL per animal (>10 8 cfu/animal) *Bacillus firmus* I-1582 by intratracheal instillation. The presented data show no adverse abnormal clinical signs in rats. No test organisms were detected in any sample from the control rats. All six animals sacrificed on day 3 had significant cfus (686 to 30,731 cfu/g) in their lungs. The test organism was detected in brain, blood, cecum content, kidneys, lungs, lymph nodes, and spleen of the treated animals. Clearance was observed from the blood, kidneys, and liver by day 7 and from all other organs by day 14. Necropsy studies were not conducted. Based on the presented/submitted data, the test organisms were not toxic, infective and/or pathogenic to rats and the active ingredient was placed in Toxicity Category IV for acute pulmonary effects. d. *Acute inhalation toxicity (OPPTS 870.1300; MRID # 46933009; DER 03/05/2008)* . An acute inhalation study was not required for this non-volatile active ingredient. The Agency also considered the acute pulmonary study in Unit III.c., the nature of the inert ingredients, the label requirements for Personal Protective Equipment for workers, and the potential low exposure associated with the proposed application methods. Based on its non-volatile nature, if the pesticide is used as labeled, it will pose minimal to non-existent risk to non-occupationally-exposed populations via inhalation. e. *Acute injection toxicity/pathogenicity - rats (OPPTS 885.3200; MRID # 46933010; DER 03/05/2008)* . Twenty six male and 26 female Sprague-Dawley rats each received a dose of 0.1 mL per animal (>10 7 cfu/animal), by injection into the tail vein. The presented data showed no observable clinical signs in treated rats. No test organisms were recovered in any samples from the control rats. The test organism was detected in the blood, kidneys, liver, lungs, lymph nodes, and spleen of the treated rats. Clearance from the brain, blood, kidneys, lymph nodes, and spleen was established by day 21 after dosing. Clearance from the cecum and liver was established by day 14 after dosing. Necropsy studies showed no abnormal findings. *Bacillus firmus* spores did not appear to be toxic, infective, and/or pathogenic in rats, when dosed at >107 cfu/animal. The submission is classified as acceptable. f. *Cell culture (OPPTS 885.3500)* . This data requirement is only required for active ingredients that are viruses and not for this type of bacterial pesticide. g. *Waiver request: Hypersensitivity incidents technical-grade active ingredient
(TGAI)(OPPTS 885.3400; DER 03/05/2008)* . In addition to the rationales in Unit III.h., the applicant requested that hypersensitivity incidents be waived based on there being no adverse effects of *Bacillus firmus* or its metabolites to humans or mammals in literature searches. The request to waive this requirement is not granted. As required for all pesticides, the Agency requires that hypersensitivity incidents, should adverse effects occur, must be reported to comply with section 6(a)(2) 40CFR159.152. h. *Waiver requests for Tiers II and Tier III (OPPTS 885.3550); MRID #s 46933011; 47024806; DER 03/05/2008)* . The registrant requested that the Agency waive the requirement for submission of data to support Tier II and Tier III requirements for the TGAI. The following rationales were provided to support requests to waive submission of the studies 1. The active ingredient, *Bacillus firmus* strain I-1582, is a naturally occurring microorganism. 2. No reports of adverse effects of *Bacillus firmus* or its metabolites to humans or mammals were found in literature searches. 3. The proposed uses of the proposed End-use Product
(EP)are not expected to result in increased exposure or adverse effects to humans or mammals. 4. The bacteria count falls to sub-effective levels in the environment within 90 days of treatment. 5. The submitted studies, MRIDs 46933007, 46933008, 46933009, and 46933010, did not show pathogenicity to animals treated by oral gavage, dermal application, pulmonary instillation, or intravenous injection. 6. *Bacillus firmus* was not found on any of eleven lists of pathogens searched. Based on these acceptable rationales and there being no toxicological, infectivity or pathogenicity concerns in the Tier I mammalian toxicity data submitted, the Agency granted the request to waive studies required for Tier II and Tier III testing. i. *Waiver requests: EP and hypersensitivity incidents (OPPTS 885.3400; DER 03/05/2008)* . The applicant has submitted rationales to waive data for acute oral toxicity/pathogenicity, acute pulmonary toxicity/pathogenicity, acute dermal, primary eye, hypersensitivity study, acute inhalation, and primary dermal, primary eye studies. These rationales were based on the results of tests for the TGAI discussed in the toxicological profile in Unit III of this document. In addition to the rationales in Unit III.h., the applicant reiterated that there were no reports of adverse effects of *Bacillus firmus* or its metabolites to humans or mammals in literature searches. The request to waive toxicity testing for the EP was based on acceptable data reviews of the TGAI and the nature of the inert ingredients which are exempt from the requirement of a tolerance. The Agency decided to grant the request to waive the test for primary eye irritation based on the acceptable low acute dermal toxicity category IV classification of the pesticide. Any potential primary eye irritation to this low toxcity pesticide can be mitigated by goggles or personal protective eye equipment. In addition the application rate and types of soil application and seed treatments indicate minimal to non-existent risk via eye exposure. The request to waive the requirement for hypersensitivity incidents for the EP is not granted. As required for all pesticides, the Agency requires that hypersensitivity incidents, should adverse effects occur, must be reported to comply with section 6(a)(2) (40 CFR 159.152). IV. Aggregate Exposures In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses). A. Dietary Exposure 1. *Food* . Dietary exposure to the microbial pesticide is likely to occur to this ubiquitous microbe. The lack of acute oral toxicity/pathogenicity, based on the toxicology test in rats, supports the exemption from the requirement of a tolerance for this active ingredient. The pesticide is intended to be applied to the soil or to be used as seed treatments, mainly for control of nematodes. It is not systemic. Thus, dietary exposure by direct contact with food is not expected. The acute oral study described in Unit III indicates that the active ingredient is not toxic, infective or pathogenic when administered to mammals
(rats)via the oral route. In addition to this acute oral study, other toxicology studies indicated that the microbe cleared all organs within the time allotted for the studies. There is no direct post-harvest treatment of food commodities with *Bacillus firmus* I-1582. Thus, detectable residues of *Bacillus firmus* I-1582 are not expected on agricultural crops or food commodities as a result of the proposed use of this active ingredient. All inerts in the proposed EP are exempt from the requirement of a tolerance. Based on these observations, the Agency concluded that dietary exposure to *Bacillus firmus* I-1582 is not expected to cause harm to human adults, infants and children. 2. *Drinking water exposure* . Drinking water is not being screened for *Bacillus firmus* I-1582 as a potential indicator of microbial contamination. The pesticide is not intended for application to aquatic agricultural crops. In the unlikely event that *Bacillus firmus* I-1582 was transferred to ground water, the microbe would not survive the conditions of drinking water treatment, such as chlorination, pH adjustments, and other water processing conditions. However, because of the lack of mammalian toxicity, even if negligible oral exposure should occur through drinking water, the Agency concludes that such exposure would present no risk. B. Other Non-Occupational Exposure The Agency expects non-occupational dermal and inhalation exposure to pose no harm if the pesticide is used as labeled. The proposed product is an EP that is intended to be used commercially for seed and soil treatments of agricultural crops. Other homeowner and residential uses are also for soil applications outdoors at very low rates. No indoor residential, school, or daycare uses are currently permitted for this active ingredient. Even if there is non-occupational residential, school or day care exposure from the proposed uses of *Bacillus firmus* I-1582, the risk posed by this low toxicity microbe is likely to be minimal. 1. *Dermal exposure* . As discussed in Unit III. *Bacillus firmus* I-1582 is not toxic, infective, or pathogenic via the dermal route of exposure, and the active ingredient is placed in Toxicity Category IV for acute dermal effects. The pesticide is proposed for use as soil and seed treatments to agricultural crops. For these exposure scenarios, non-occupational dermal exposure is not expected. The potential for non-occupational exposure exists for residential and home and garden use. However, low application rates, soil applications and the low toxicity potential of the active ingredient indicate that non-occupational exposure through these uses is not likely to cause harm to the exposed population if the pesticide is used as labeled. 2. *Inhalation exposure* . A similar rationale supports the Agency's conclusion that non-occupational inhalation exposure is not likely to cause harm to the exposed population if the pesticide is used as labeled. The active ingredient is placed in Toxicity Category IV on the basis of the acute pulmonary study (see Unit III.) and is non-volatile. V. Cumulative Effects Section 408(b)(2)(D)(v) of the FFDCA requires the Agency to consider the cumulative effect of exposure to *Bacillus firmus* I-1582 and to other substances that have a common mechanism of toxicity. These considerations include the possible cumulative effects of such residues on infants and children. *Bacillus firmus* I-1582 is not toxic or pathogenic to mammals via several routes of exposure (Unit III.) There are no other *Bacillus firmus* strains registered. Consequently, no cumulative effects from the residues of this product with other related microbial pesticides are anticipated. VI. Determination of Safety for U.S. Population, Infants and Children See Unit III. for acute toxicological evaluations of *Bacillus firmus* I-1582. Further, FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold margin of exposure (safety) for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure, unless EPA determines that a different margin of exposure
(MOE)(safety) will be safe for infants and children. Margins of exposure (safety), which often are referred to as uncertainty factors, are incorporated into EPA risk assessment either directly or through the use of a margin of exposure analysis or by using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk. Actual exposures to adults and children through diet are expected to be several orders of magnitude less than the doses used in the toxicity and pathogenicity tests referenced in Unit III. Thus, the Agency has determined that an additional margin of safety for infants and children is unnecessary. VII. Other Considerations A. Endocrine Immunotoxicity EPA is required under section 408(p) of the FFDCA, as amended by FQPA, to develop a screening program to determine whether certain substances (including all pesticide active and other ingredients) “may have an effect in humans that is similar to an effect produced by a naturally-occurring estrogen, or other such endocrine effects as the Administrator may designate.” Following the recommendations of its Endocrine Disruptor Screening and Testing Advisory Committee (EDSTAC), EPA determined that there was a scientific basis for including, as part of the program, androgen and thyroid hormone systems, in addition to the estrogen hormone system. EPA also adopted EDSTAC's recommendation that it include evaluations of potential effects in wildlife. The Agency has no knowledge of *Bacillus firmus* I-1582 being an endocrine disruptor, nor if this microbe is related to any class of known endocrine disruptors. Consequently, endocrine-related concerns did not impact the Agency's safety finding for these *Bacillus firmus* I-1582 strains. Additional data specifically on the endocrine effects of this microbial pesticide are not required at this time. When the appropriate screening and/or testing protocols being considered under the Agency's Endocrine Disrupter Screening Program
(EDSP)have been developed and implemented, *Bacillus firmus* I-1582 may be subject to additional screening and/or testing to better characterize effects related to endocrine disruption. As discussed in this document in Unit III. Tier I toxicology data evaluated for this active ingredient showed clearance in a variety of tissues and did not trigger Tier III data requirements for immunotoxicity testing. B. Analytical Methods The acute oral studies discussed in Unit III. demonstrate that the active ingredient does not pose a dietary risk. In addition, the active ingredient is not likely to come into contact with the treated food commodities. Furthermore, the low application rate and non-persistence on food during applications suggests very low exposure potential via the dietary route. Since residues are not expected on treated commodities, the Agency has concluded that an analytical method to detect residues of this pesticide on treated food commodities for enforcement purposes is not needed. Nevertheless, the Agency has concluded that for analysis of the pesticide itself, microbiological and biochemical methods exist and are acceptable for enforcement purposes for product identity of *Bacillus firmus* I-1582. Other appropriate methods are required for quality control to assure that product characterization, the control of human pathogens and other unintentional metabolites or ingredients are within regulatory limits, and to ascertain storage stability and viability of the pesticidal active ingredient. C. Codex Maximum Residue Level There is no Codex maximum residue level for residues of *Bacillus firmus* I-1582. VIII. Conclusions The results of the studies discussed in Unit III. meet the safety standards of the 1996 FQPA. They support an exemption from the requirement of a tolerance for residues of *Bacillus firmus* I-1582, on treated food or feed commodities. In addition, the Agency is of the opinion that, if the microbial active ingredient is used as allowed, aggregate and cumulative exposures are not likely to harm the adult human U.S. population, children and infants. Therefore, an exemption from tolerance is granted for residues of *Bacillus firmus* I-1582 when used as soil and seed treatments in/on all food/feed commodities in response to pesticide petition 6F7111. IX. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final 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) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* , nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq.* ) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, *entitled Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, *entitled Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). X. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: April 23, 2008. Debra Edwards, Director, Office of Pesticide Programs Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.1282 is added to read as follows: § 180.1282 Bacillus firmus I-1582; exemption from the requirement of a tolerance. An exemption from the requirement of a tolerance is established in/on all food/feed commodities, for residues of *Bacillus firmus* I-1582 when used as a soil application or seed treatment. [FR Doc. E8-10121 Filed 5-6-08; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2004-0306; FRL-8361-4] Pyridalyl; Pesticide Tolerances AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes tolerances for residues of pyridalyl in or on vegetables, leafy, except *Brassica* , group 4; *Brassica* , head and stem, subgroup 5A; vegetables, fruiting, group 8; mustard greens; and turnip greens. Valent U.S.A. Corporation and the International Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). DATES: This regulation is effective May 7, 2008. Objections and requests for hearings must be received on or before July 7, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION . ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2004-0306. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Olga Odiott, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-9369; e-mail address: *odiott.olga@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2004-0306 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before July 7, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2004-0306, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Petition for Tolerance In the **Federal Register** of December 5, 2003 (68 FR 68044) (FRL-7344-6), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of pesticide petitions (PP 2F6459 and 3E6592) (petition 3E6592 was inadvertently referred to as 2E6592 in the December, 2003 FR notice) by Valent U.S.A. Corporation, 1600 Riviera Ave., Suite 200, Walnut Creek, California 94596-8025 and the International Research Project Number 4 (IR-4), 681 U.S Highway #1 South, North Brunswick, NJ, 08902-3390. Petition 2F6459 requested that 40 CFR 180 be amended by establishing tolerances for residues of the insecticide pyridalyl, (pyridine, 2-[3-[2,6-dichloro-4-[(3,3-dichloro-2-propenyl)oxy]phenoxy]propoxy]-5-(trifluoromethyl), in or on vegetables, leafy, except *Brassica* , group 4, at 20.0 parts per million (ppm); vegetables, fruiting, group 8, at 1.1 ppm; *Brassica* , head and stem, subgroup 5A, at 5.0 ppm; cotton seed at 0.4 ppm; meat at 0.04 ppm; meat by-products at 0.05 ppm; animal fat at 1.0 ppm; and whole milk at 0.1 ppm; and to establish tolerances for residues of pyridalyl plus the metabolite 3,5-dichloro-4-[3-(5-trifluoromethyl-2-pyridyloxy)]propoxy phenol (S-1812-DP) in or on the raw agricultural commodity cotton, gin byproducts at 23.0 ppm. Petition 3E6592 requested that 40 CFR 180 Part be amended by establishing tolerances for residues of pyridalyl in or on the raw agricultural commodities: *Brassica* , leafy greens, subgroup 5B, at 30 ppm; and turnip greens at 30 ppm. That notice referenced a summary of the petition prepared by Valent U.S.A. Corporation, the registrant, which is available to the public in the docket, *http://www.regulations.gov* . There were no comments received in response to the notice of filing. Based upon review of the data supporting the petitions, EPA has determined that the proposed tolerances for *Brassica* , head and stem, subgroup 5A, and vegetables, fruiting, group 8, should be reduced to 3.5 ppm; and 1.0 ppm respectively; that a tolerance for mustard greens at 30 ppm; should be proposed; and that the proposed tolerance for *Brassica* , leafy greens, subgroup 5B should be deleted. The reasons for these changes are explained in Unit IV.C. The Agency is evaluating additional environmental fate data and has not yet made a decision to register the outdoor uses associated with the proposed tolerances for cotton and related commodities. A decision to establish these tolerances will be made at such time when the Agency makes the determination to register these outdoor uses. III. Aggregate Risk Assessment and Determination of Safety Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the following petitioned-for tolerances for residues of pyridalyl *per se* in or on vegetables, leafy, except *Brassica* , group 4, at 20 ppm; *Brassica* , head and stem, subgroup 5A at 3.5 ppm; vegetables, fruiting, group 8, at 1.0 ppm; mustard greens at 30 ppm; and turnip greens at 30 ppm. EPA's assessment of exposures and risks associated with establishing tolerances follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Pyridalyl has low acute toxicity via the oral, dermal and inhalation routes of exposure but is a dermal sensitizer. There was no evidence of neurotoxicity seen in either the sub-chronic and chronic toxicity studies or the developmental and reproductive studies. There is low concern for prenatal and/or postnatal toxicity resulting from exposure to pyridalyl. Pyridalyl is classified as “Not Likely to be Carcinogenic to Humans” based on lack of carcinogenicity in mice and rats and overall negative findings in various mutagenicity studies. Specific information on the studies received and the nature of the adverse effects caused by pyridalyl as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at *http://www.regulations.gov* in document pyridalyl in/on cotton, fruiting vegetables, leafy vegetables, head and stem *Brassica* vegetables, *Brassica* leafy greens, and turnip greens, shrubs, ornamentals and non-bearing trees. HED Risk Assessment on page number 26 in docket ID number EPA-HQ-OPP-2004-0306. B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, a toxicological point of departure
(POD)is identified as the basis for derivation of reference values for risk assessment. The POD may be defined as the highest dose at which no adverse effects are observed in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified or a Benchmark Dose
(BMD)approach is sometimes used for risk assessment. Uncertainty/safety factors
(UFs)are used in conjunction with the POD to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic dietary risks by comparing aggregate food and water exposure to the pesticide to the acute population adjusted dose
(aPAD)and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the POD by all applicable UFs. Aggregate short-term, intermediate-term, and chronic-term risks are evaluated by comparing food, water, and residential exposure to the POD to ensure that the margin of exposure
(MOE)called for by the product of all applicable UFs is not exceeded. This latter value is referred to as the Level of Concern (LOC). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect greater than that expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see *http://www.epa.gov/pesticides/factsheets/riskassess.htm* . A summary of the toxicological endpoints for pyridalyl used for human risk assessment is shown in Table 1 of this unit. **Table 1.—Summary of Toxicological Doses and Endpoints for Pyridalyl for Use in Human Risk Assessment** Exposure/Scenario Point of Departure and Uncertainty/Safety Factors RfD, PAD, LOC for Risk Assessment Study and Toxicological Effects Acute dietary (females 13-50 years of age) Acute dietary (general population including infants and children) An effect of concern attributable to a single exposure
(dose)was not identified from the oral toxicity studies, including the developmental toxicity studies in rats and rabbits. Chronic dietary (All populations) NOAEL= 3.4 mg/kg/day UF <sup>A</sup> = 10x UF <sup>H</sup> = 10x FQPA SF = 1x cPAD = 0.034 mg/kg/day Combined chronic toxicity/carcinogenicity study-rats LOAEL = 17.1 miligrams/kilogram/day (mg/kg/day) on males and 21.1 mg/kg/day on females based on decreased body weights, weight gain, and food efficiency. Cancer (oral, dermal, inhalation) Classified as “Not likely to be Carcinogenic to Humans” UF <sup>A</sup> = extrapolation from animal to human (interspecies). UF <sup>H</sup> = potential variation in sensitivity among members of the human population (intraspecies). FQPA SF = FQPA Safety Factor. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. LOC = level of concern. C. Exposure Assessment Pyridalyl residues of concern for tolerance expression and risk assessment were determined to be: 3,5-dichloro-4-[3-(5-trifluoromethyl-2-pyridyloxy)]propoxy phenol (S-1812-DP), 2-hydroxy-5-trifluoromethylpyridine (HTFP), and 3-hydroxy-5-trifluoromethylpyridone (HPDO). Pyridalyl is the predominant residue in crops and livestock. S-1812-DP is the only major metabolite observed in any of the metabolism studies and is found at significant levels in the cotton gin byproduct field trials. The toxicity of S-1812-DP is assumed to be comparable to the parent compound. Rotational crops did not take up parent pyridalyl or its metabolite S-1812-DP from the soil, but did take up metabolite HTFP. HTFP was then metabolized in rotational crops via oxidation to HPDO. Metabolites HTFP and HPDO are assumed to be of equivalent toxicity to the parent compound and are included as residues of concern. Pyridalyl is expected to be persistent in both soil and aquatic environments. However, S-1812-DP and HTFP, the major metabolites in the terrestrial field-dissipation studies, are expected to be more soluble and mobile than the parent compound, and therefore are included in the drinking water assessment. 1. *Dietary exposure from food and feed uses* . In evaluating dietary exposure to pyridalyl, EPA considered exposure under the petitioned-for tolerances for pyridalyl. EPA assessed dietary exposures from pyridalyl in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for pyridalyl; therefore, a quantitative acute dietary exposure assessment is unnecessary. ii. *Chronic exposure* . In conducting the chronic dietary exposure assessment EPA used the food consumption data from the United States Department of Agricuulture
(USDA)1994-1996 and 1998 Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA used tolerance level residues and 100 percent crop treated
(PCT)information for all commodities. In addition, Dietary Exposure Evaluation (DEEM/ TM ) (version 7.76) default processing factors were used for all processed commodities. iii. *Anticipated residue and PCT information* . EPA did not use anticipated residue and/or PCT information in the dietary assessment for pyridalyl. 2. *Dietary exposure from drinking water* . The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for pyridalyl in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of pyridalyl. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://www.epa.gov/oppefed1/models/water/index.htm* . The Agency used estimated environmental concentrations (EECs), which are the model estimates of a pesticide's concentration in water, to quantify pyridalyl drinking water exposure and risk as a Percent Reference Dose (%RfD) or %PAD. Drinking water levels of comparison (DWLOCs) were calculated and used as a point of comparison against the model estimates of the pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to pyridalyl they are further discussed in the aggregate risk sections in Unit E. Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models the EECs of pyridalyl for chronic exposures are estimated to be 1.64 parts per billion
(ppb)for surface water and 3.4 ppb for ground water 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Pyridalyl is not registered for any specific use patterns that would result in residential exposure. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found pyridalyl to share a common mechanism of toxicity with any other substances, and pyridalyl does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that pyridalyl does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. *In general* . Section 408(b)(2)(c) of FFDCA provides that EPA shall apply an additional tenfold
(10X)margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor. 2. *Prenatal and postnatal sensitivity* . There was low concern for the quantitative susceptibility in the 2-generation reproduction study, since there was clear NOAEL for the offspring toxicity, the effects of concern were well defined and used for risk assessment. Therefore, there are no concerns and no residual uncertainties with regard to prenatal and/or postnatal toxicity. 3. *Conclusion* . EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings: i. The toxicity database for pyridalyl is complete. ii. There is no indication that pyridalyl is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity. iii. There are no concerns and no residual uncertainties with regard to prenatal and/or postnatal toxicity. iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground water and surface water modeling used to assess exposure to pyridalyl in drinking water. These assessments will not underestimate the exposure and risks posed by pyridalyl. E. Aggregate Risks and Determination of Safety To estimate total aggregate exposure to pyridalyl from food, drinking water, and residential uses, the Agency calculated DWLOCs which are used as a point of comparison against EECs. DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water [e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure)]. This allowable exposure through drinking water is used to calculate a DWLOC. A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the EPA's Office of Water are used to calculate DWLOCs: 2 liter (L)/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: Acute, short-term, intermediate-term, chronic term, and cancer. When EECs for surface water and ground water are less than the calculated DWLOCs, EPA concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which EPA has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because EPA considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, EPA will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process. 1. *Acute risk* . An acute aggregate risk assessment takes into account exposure estimates from acute dietary consumption of food and drinking water. No adverse effect resulting from a single-oral exposure was identified and no acute dietary endpoint was selected. Therefore, pyridalyl is not expected to pose an acute risk. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to pyridalyl from food will utilize 35% of the cPAD for the U.S. population, 20% of the cPAD for all infants, and 59% of the cPAD for children 1-2 years old, the children subpopulation at greatest exposure. There are no residential uses for pyridalyl. There is potential for chronic dietary exposure to pyridalyl and its metabolites in drinking water. After calculating DWLOCs and comparing them to the EECs for surface water and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table: **Table 2.—Aggregate Risk Assessment for Chronic (Non-Cancer) Exposure to Pyridalyl** Population Subgroup cPAD mg/kg/day %cPAD
(Food)Surface Water EEC a
(ppb)Ground Water EEC b
(ppb)Chronic DWLOC
(ppb)U.S. population 0.034 35 1.64 3.4 780 All infants (< 1 yr) 0.034 20 1.64 3.4 270 Children 1-2 yrs. 0.034 59 1.64 3.4 140 a Tier II PRZM-EXAMS - Index reservoir model, pyridalyl plus HTFP and S-1812-DP. b Tier 1 SCI-GROW model, HTFP (highest value). 3. *Short-term risk* . Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Pyridalyl is not registered for any use patterns that would result in residential exposure. Therefore, the short-term aggregate risk is the sum of the risk from exposure to pyridalyl through food and water and will not be greater than the chronic aggregate risk. 4. *Intermediate-term risk* . Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Pyridalyl is not registered for any use patterns that would result in intermediate-term residential exposure. Therefore, the intermediate-term aggregate risk is the sum of the risk from exposure to pyridalyl through food and water, which has already been addressed, and will not be greater than the chronic aggregate risk. 5. *Aggregate cancer risk for U.S. population* . Pyridalyl is classified as “not likely to be carcinogenic to humans” by all relevant routes of exposure based on adequate studies in mice and rats and overall negative findings in various mutagenicity assays. Therefore, pyridalyl is not expected to pose a cancer risk. 6. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to pyridalyl residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology (gas chromatography/nitrogen-phosphorus detector (GC/NPD) methods RM-38P-1-1, RM-38M-1, and RM-38M-1-1 for plant commodities; and RM-38P-2 and RM-38P-3-1 for livestock commodities) is available to enforce the tolerance expression. The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:
(410)305-2905; e-mail address: *residuemethods@epa.gov* . FDA multiresidue methods (protocols B, D, E, and F) are also available for enforcement of the tolerances (PAM Vol.I, Appendix II, 1/94). B. International Residue Limits There are currently no U.S. or international Codex tolerances established for pyridalyl. C. Revisions to Petitioned-For Tolerances Based on its review of submitted crop field trial data, EPA determined that the proposed tolerances for *Brassica* head and stem, subgroup 5A; and for fruiting vegetables, group 8 should be reduced to 3.5 and 1.0 ppm, respectively. The Agency determined also that the data were not sufficient to support the proposed tolerance for Brassica leafy greens, subgroup 5B; although a mustard green tolerance at 30 ppm was supported by the data. V. Conclusion Therefore, tolerances are established for residues of pyridalyl *per se* , in or on vegetables, leafy, except *Brassica* , group 4 at 20 ppm; *Brassica* , head and stem, subgroup 5A at 3.5 ppm; vegetables, fruiting, group 8 at 1.0 ppm; mustard greens at 30 ppm; and turnip greens at 30 ppm. VI. Statutory and Executive Order Reviews This final rule establishes tolerances under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final 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) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* , nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq.* ) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: April 23, 2008. Debra Edwards, Director, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.640 is added to read as follows: 180.640 Pyridalyl; tolerances for residues.
(a)*General* . Tolerances are established for residues of pyridalyl, pyridine,2-[3-[2,6-dichloro-4-[(3,3-dichloro-2-propenyl)oxy]phenoxy]propoxy]-5-(trifluoromethyl, in or on the following raw agricultural commodities:) Commodity Parts per million *Brassica* , head and stem, subgroup 5A 3.5 Mustard greens 30 Turnip greens 30 Vegetable, fruiting, group 8 1.0 Vegetables, leafy, except *Brassica* , group 4 20
(b)*Section 18 emergency exemption* . [Reserved]
(c)*Tolerances with regional registration* . [Reserved]
(d)*Indirect or inadvertent residues* . [Reserved] [FR Doc. E8-9823Filed 5-6-08; 8:45 am] BILLING CODE6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0398; FRL-8362-2] Spirodiclofen; Pesticide Tolerances AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes a tolerance for residues of spirodiclofen in or on hop, dried cones. Interregional Research Project Number 4 (IR-4) requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA). DATES: This regulation is effective May 7, 2008. Objections and requests for hearings must be received on or before July 7, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ). ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2007-0398. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Susan Stanton, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)305-5218; e-mail address: *stanton.susan@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0398 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before July 7, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2007-0398, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Petition for Tolerance In the **Federal Register** of June 27, 2007 (72 FR 35237) (FRL-8134-9), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 7E7204) by Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201W, Princeton, NJ 08540. The petition requested that 40 CFR 180.608 be amended by establishing tolerances for residues of the insecticide/miticide spirodiclofen, 3-(2,4-dichlorophenyl)-2-oxo-1-oxaspiro[4,5]dec-3-en-4-yl 2,2-dimethylbutanoate, in or on hop, dried cones at 30 parts per million (ppm). That notice referenced a summary of the petition prepared by Bayer CropScience, the registrant, which is available to the public in the docket, *http://www.regulations.gov* . There were no comments received in response to the notice of filing. III. Aggregate Risk Assessment and Determination of Safety Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerances for residues of spirodiclofen on hop, dried cones at 30 ppm. EPA's assessment of exposures and risks associated with establishing tolerances follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Spirodiclofen has a low acute toxicity via oral, dermal or inhalation routes. It is not an eye or dermal irritant; however, it is a potential skin sensitizer. Following oral administration, spirodiclofen is rapidly absorbed, metabolized and excreted via urine and feces. The most sensitive target organ of spirodiclofen is the adrenal gland. Adrenal effects (e.g., increased adrenal weights, increased incidence and severity of small cytoplasmic vacuolation in the cortex of adrenal glands) were observed in rats, dogs and mice with the dog being the most sensitive species. There was no evidence of neurotoxicity in the acute neurotoxicity study in rats. In the subchronic neurotoxicity study in rats, functional-observational-battery
(FOB)effects and decreased motor and locomotor activities were observed in females at the high dose only. The effects were considered to be due to the large decrease in body weight in these animals. In one of two developmental neurotoxicity
(DNT)studies in rats, a decrease in retention (memory) was observed in the postnatal day
(PND)60 females only. These effects were not seen in a repeated DNT study conducted using the same doses and experimental conditions. There was no evidence (qualitative or quantitative) of increased susceptibility in the rabbit developmental toxicity study or the rat reproduction toxicity study following *in utero* or postnatal exposure to spirodiclofen. However, evidence of quantitative susceptibility was observed in a rat developmental toxicity study where an increased incidence of slight dilatation of the renal pelvis was observed at a dose (1,000 milligrams/kilogram/day (mg/kg/day)) which did not cause any maternal toxicity. The results of the two DNT studies for spirodiclofen also suggest increased susceptibility. In the first study, memory and brain morphometric differences were observed at doses that did not result in maternal toxicity. While these effects were not seen in the second DNT study, body weight changes were seen at non-maternally toxic doses. EPA has classified spirodiclofen as “likely to be carcinogenic to humans” by the oral route of exposure, based on evidence of testes Leydig cell adenomas in male rats, uterine adenomas and/or adenocarcinoma in female rats, and liver tumors in mice. EPA has determined that quantification of human cancer risk using a linear low-dose extrapolation approach is appropriate. Specific information on the studies received and the nature of the adverse effects caused by spirodiclofen as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at *http://www.regulations.gov* in the document *Spirodiclofen. Petition No. 7E7204. Human Health Risk Assessment for Use on Hops* at pages 45-48 in docket ID number EPA-HQ-OPP-2007-0398. B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, a toxicological point of departure
(POD)is identified as the basis for derivation of reference values for risk assessment. The POD may be defined as the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) or a Benchmark Dose
(BMD)approach is sometimes used for risk assessment. Uncertainty/safety factors
(UFs)are used in conjunction with the POD to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic dietary risks by comparing aggregate food and water exposure to the pesticide to the acute population adjusted dose
(aPAD)and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the POD by all applicable UFs. Aggregate short-term, intermediate-term, and chronic-term risks are evaluated by comparing food, water, and residential exposure to the POD to ensure that the margin of exposure
(MOE)called for by the product of all applicable UFs is not exceeded. This latter value is referred to as the Level of Concern (LOC). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect greater than that expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see *http://www.epa.gov/pesticides/factsheets/riskassess.htm* . A summary of the toxicological endpoints for spirodiclofen used for human risk assessment can be found at *http://www.regulations.gov* in the document *Spirodiclofen. Petition No. 7E7204. Human Health Risk Assessment for Use on Hops* at page 34 in docket ID number EPA-HQ-OPP-2007-0398. C. Exposure Assessment 1. *Dietary exposure from food and feed uses* . In evaluating dietary exposure to spirodiclofen, EPA considered exposure under the petitioned-for tolerances as well as all existing spirodiclofen tolerances in 40 CFR 180.608. EPA assessed dietary exposures from spirodiclofen in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for spirodiclofen; therefore, a quantitative acute dietary exposure assessment is unnecessary. ii. *Chronic exposure* . In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 CSFII. As to residue levels in food, EPA assumed that all food commodities contain residues at the average field trial level. EPA also assumed average field trial residues for feed commodities in calculating anticipated livestock dietary burdens and anticipated residues in meat and milk. Residue estimates were further refined using available experimentally-derived processing factors as well as projected percent crop treated
(PPCT)information for several crops. iii. *Cancer* . EPA has classified spirodiclofen as “likely to be carcinogenic to humans” by the oral route of exposure and determined that quantification of human cancer risk using a linear low-dose extrapolation approach is appropriate. Cancer risk was assessed using the same exposure assumptions as discussed in Unit III.C.1.ii. above. iv. *Anticipated residue and percent crop treated
(PCT)information* . Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances. Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if: • Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue. • Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group. • Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT. The Agency used projected percent crop treated
(PPCT)information for the new crop
(hops)as well as several currently registered crops (apples, grapes, oranges and peaches). Since spirodiclofen has only been registered on these crops since 2005, PCT estimates based on actual usage data were not deemed sufficient indicators of potential usage on currently registered crops. The Agency used PPCT information as follows: Hops 92%; apples 15%; grapes 7%; oranges (except temple) 14%; peaches 10%. EPA estimates PPCT for spirodiclofen use by assuming that the PCT during the pesticide's initial 5 years of use on a specific use site will not exceed the average PCT of the dominant or market leader pesticide (i.e. the one with the greatest PCT) on that site over the three most recent surveys. Comparisons are only made among pesticides of the same pesticide types (i.e., the dominant insecticide on the use site is selected for comparison with the new insecticide/miticide). Since spirodiclofen is a miticide, EPA identified miticides that are the market leaders to project PCT. Petroleum distillate and petroleum oil were excluded as market leaders and the next miticide market leader was chosen. The PCTs included in the average may be for the same pesticide or for different pesticides, since the same or different pesticides may dominate for each year selected. Typically, EPA uses U.S. Department of Agriculture/National Agricultural Statistics Service (USDA/NASS) as the source for raw PCT data, because it is publicly available and does not have to be calculated from available data sources. When a specific use site is not surveyed by USDA/NASS, EPA uses proprietary data and calculates the estimated PCT. These estimated PPCTs, based on the average PCT of the market leaders, are appropriate for use in chronic dietary risk assessment. This method of estimating PPCT for a new use of a registered pesticide or a new pesticide produces a high-end estimate that is unlikely, in most cases, to be exceeded during the initial five years of actual use. The predominant factors that bear on whether the PPCT could be exceeded are whether the new pesticide use or new pesticide is more efficacious or controls a broader spectrum of pests than the dominant pesticide(s). All relevant information currently available regarding the predominant factors has been considered for the use of spirodiclofen on hops; oranges, except temple; grapes, all; peaches; and apples; and it is unlikely that these spirodiclofen uses will exceed the estimated PPCTs during the next 5 years, because the target pest range of the market leaders is generally broader than spirodiclofen's, often including both insect and mite pests. Furthermore, the Agency has received no Section 18 emergency exemption requests for spirodiclofen and there are no readily discernible resistance issues with target pest mites, which might indicate an increased need for spirodiclofen on these crops. The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which spirodiclofen may be applied in a particular area. 2. *Dietary exposure from drinking water* . The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for spirodiclofen in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of spirodiclofen. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://www.epa.gov/oppefed1/models/water/index.htm* . Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of spirodiclofen for chronic exposures for non-cancer assessments are estimated to be 4.99 parts per billion
(ppb)for surface water and 0.44 ppb for ground water; the EDWCs of spirodiclofen for chronic exposures for cancer assessments are estimated to be 1.67 ppb for surface water and 0.44 ppb for ground water. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 4.99 ppb was used to assess the contribution to drinking water. For cancer dietary risk assessment, the water concentration of value 1.67 ppb was used to assess the contribution to drinking water. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Spirodiclofen is not registered for any specific use patterns that would result in residential exposure. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found spirodiclofen to share a common mechanism of toxicity with any other substances, and spirodiclofen does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that spirodiclofen does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. *In general* . Section 408(b)(2)(c) of FFDCA provides that EPA shall apply an additional tenfold
(10X)margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor. 2. *Prenatal and postnatal sensitivity* . The prenatal and postnatal toxicity database for spirodiclofen includes prenatal developmental toxicity studies in rats and rabbits, a 2-generation reproduction toxicity study in rats and two developmental neurotoxicity
(DNT)studies in rats. There was no evidence (qualitative or quantitative) of increased susceptibility in the rabbit developmental toxicity study or the rat reproduction toxicity study following *in utero* or postnatal exposure to spirodiclofen. However, evidence of quantitative susceptibility was observed in the rat developmental toxicity study where an increased incidence of slight dilatation of the renal pelvis was observed at a dose (1,000 mg/kg/day) which did not cause any maternal toxicity. The results of the two available DNT studies for spirodiclofen also suggest increased susceptibility. In the first study, memory and brain morphometric differences were observed at doses that did not result in maternal toxicity. While these effects were not seen in the second DNT study, body weight changes were seen at non-maternally toxic doses. The degree of concern is low for the quantitative susceptibility seen in the prenatal developmental and DNT studies in the rat for the following reasons: The renal pelvic dilation seen in the rat developmental toxicity study was slight and observed only at the limit dose without statistical significance or dose response. Renal pelvic dilation was considered to be a developmental delay and not a severe developmental effect. The low background incidence of renal pelvic dilations seen in this study may be idiosyncratic to this strain (Wistar) of rats, since they are commonly seen at higher incidences in other strains (Sprague-Dawley or Fisher). In addition, doses selected for risk assessment of spirodiclofen are much lower than the dose that caused these developmental delays. The degree of concern for the increased susceptibility seen in the second DNT study is also low, because there is a well established NOAEL, the toxicity is marginal (slight changes in body weights) and all developmental/functional parameters were comparable to controls. In addition, doses selected for risk assessment of spirodiclofen are much lower than the dose that caused these marginal changes in the body weights of offspring in the second DNT study. In the first DNT study, no significant differences were noted between treated and control groups in reproductive parameters (litter size, sex ratio, number of deaths, live birth, viability and lactation), and no treatment-related clinical signs were observed at any dose in either sex. No treatment-related differences in functional observational battery (FOB), motor activity or locomotor activity were observed during the pre-weaning and post-weaning periods; and no treatment-related differences in the passive avoidance tests were observed at any dose. The trials to criterion for the memory phase of the water maze test showed a treatment-related effect at all doses for postnatal day
(PND)60 females. The memory effects occurred only in adults and were not seen in younger animals; therefore, these effects do not raise a concern for susceptibility. On postmortem examination, differences in certain morphometric measurements (caudate putamen, parietal cortex, hippocampal gyrus and dentate gyrus) were observed at the high dose, the only dose for which morphometric measurements were made. The magnitude of these effects was minute but statistically significant. The lack of measurements at the mid- and low doses precluded establishment of a clear NOAEL or a determination as to the toxicological significance of these minor changes at the high dose. Therefore, EPA requested similar morphometric analyses at the mid- and low doses in both sexes. Since inappropriate preservation of brain tissues from the first study precluded additional morphometric analyses, the registrant elected to conduct a second DNT study using the same doses and experimental conditions. The morphometric differences observed in the first DNT study were not seen in the second study. EPA has no concern for the increased susceptibility seen in the first DNT study because: • The magnitude of the morphometric changes was minor. • They occurred at the high dose; the doses selected for risk assessment are significantly lower than the dose at which these effects were seen. • No other neurotoxic effects were observed in young pups in the first DNT study. • The results were not reproduced in the second study conducted using identical doses and experimental conditions. The results of the second study suggest that the findings in the first study are spurious and not toxicologically significant. 3. *Conclusion* . EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X for chronic dietary exposures, the only exposures considered in this risk assessment, since an acute dietary endpoint has not been identified for spirodiclofen and there are no residential uses that would result in short-term or intermediate-term non-dietary exposures. The decision to reduce the FQPA SF to 1X for chronic dietary exposures is based on the following findings: i. The toxicity database for spirodiclofen is complete. ii. Based on the results of acute, subchronic and developmental neurotoxicity studies in rats (see units III.A. and III.D.2.), EPA has concluded that spirodiclofen is unlikely to be a neurotoxic or developmentally neurotoxic compound and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity. iii. There was no evidence (qualitative or quantitative) of increased susceptibility in the rabbit developmental toxicity study or the rat reproduction toxicity study following *in utero* or postnatal exposure to spirodiclofen. The degree of concern is low for the quantitative susceptibility seen in the prenatal developmental and DNT studies in the rat, and the Agency did not identify any residual uncertainties after establishing toxicity endpoints and traditional uncertainty factors to be used in the risk assessment of spirodiclofen. iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were refined using reliable PPCT information and anticipated residue values calculated from residue field trial results. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to spirodiclofen in drinking water. Residential exposures are not expected. These assessments will not underestimate the exposure and risks posed by spirodiclofen. E. Aggregate Risks and Determination of Safety EPA determines whether acute and chronic pesticide exposures are safe by comparing aggregate exposure estimates to the aPAD and cPAD. The aPAD and cPAD represent the highest safe exposures, taking into account all appropriate SFs. EPA calculates the aPAD and cPAD by dividing the POD by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given the estimated aggregate exposure. Short-term, intermediate-term, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the POD to ensure that the MOE called for by the product of all applicable UFs is not exceeded. 1. *Acute risk* . An acute aggregate risk assessment takes into account exposure estimates from acute dietary consumption of food and drinking water. No adverse effect resulting from a single-oral exposure was identified and no acute dietary endpoint was selected. Therefore, spirodiclofen is not expected to pose an acute risk. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to spirodiclofen from food and water will utilize 3.2% of the cPAD for infants less than 1 year old, the population group receiving the greatest exposure. There are no residential uses for spirodiclofen. 3. *Short-term and intermediate-term risk* . Short-term and intermediate-term aggregate exposures take into account short-term and intermediate-term residential exposures plus chronic exposure to food and water (considered to be a background exposure level). Spirodiclofen is not registered for any use patterns that would result in residential exposure. Therefore, the short-term/intermediate-term aggregate risk is the sum of the risk from exposure to spirodiclofen through food and water and will not be greater than the chronic aggregate risk. 4. *Aggregate cancer risk for U.S. population* . Using the exposure assumptions described in Unit III.C.1.iii. for cancer, EPA has concluded that exposure to spirodiclofen from food and water will result in a lifetime cancer risk of 3 x 10 -6 for the U.S. population. EPA generally considers cancer risks in the range of 10 -6 or less to be negligible. The precision which can be assumed for cancer risk estimates is best described by rounding to the nearest integral order of magnitude on the log scale; for example, risks falling between 3.16 x 10 -7 and 3.16 x 10 -6 are expressed as risks in the range of 10 -6 . Considering the precision with which cancer hazard can be estimated, the conservativeness of low-dose linear extrapolation, and the rounding procedure described above, cancer risk should generally not be assumed to exceed the benchmark LOC of the range of 10 -6 until the calculated risk exceeds approximately 3 x 10 -6 . Since the calculated cancer risk for spirodiclofen does not exceed this level, estimated cancer risk is considered to be negligible. 5. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to spirodiclofen residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology (a liquid chromatography (LC)/mass spectrometry (MS)/MS method) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:
(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits No maximum residue limits
(MRLs)have been established by Canada, Mexico or Codex for spirodiclofen on hops. V. Conclusion Therefore, a tolerance is established for residues of spirodiclofen, 3-(2,4-dichlorophenyl)-2-oxo-1-oxaspiro[4,5]dec-3-en-4-yl 2,2-dimethylbutanoate, in or on hop, dried cones at 30 ppm. VI. Statutory and Executive Order Reviews This final rule establishes tolerances under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, 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) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 9, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: April 24, 2008. Donald R. Stubbs, Acting Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.608 is amended by alphabetically adding the following commodity to the table in paragraph (a)(1) to read as follows: § 180.608 Spirodiclofen; tolerances for residues.
(a)* * *.
(1)* * * Commodity Parts per million * * * * * Hop, dried cones 30 * * * * * [FR Doc. E8-9826 Filed 5-6-08; 8:45 am] BILLING CODE 6560-50-S GENERAL SERVICES ADMINISTRATION 41 CFR Part 302-17 [FTR Amendment 2008-03; FTR Case 2008-302; Docket 2008-002, Sequence 1] RIN 3090-AI48 Federal Travel Regulation; Relocation Income Tax
(RIT)Allowance Tax Tables—2008 Update AGENCY: Office of Governmentwide Policy, General Services Administration (GSA). ACTION: Final rule. SUMMARY: This rule updates the Federal, State, and Puerto Rico tax tables for calculating the relocation income tax
(RIT)allowance, to reflect changes in Federal, State, and Puerto Rico income tax brackets and rates. The Federal, State, and Puerto Rico tax tables contained in this rule are for use in calculating the 2008 RIT allowance for tax year 2007 to be paid to relocating Federal employees. DATES: Effective Date: This final rule is effective on May 7, 2008. Applicability date: January 1, 2008. FOR FURTHER INFORMATION CONTACT: The Regulatory Secretariat (VIR), Room 4035, GSA Building, Washington, DC 20405, telephone (202)208-7312, for information pertaining to status or publication schedules. For clarification of content, contact Ed Davis, Office of Governmentwide Policy, Travel Management Policy (MTT), Washington, DC 20405, telephone
(202)501-4755. Please cite FTR Amendment 2008-03, FTR case 2008-302. SUPPLEMENTARY INFORMATION: A. Background Section 5724b of Title 5, United States Code, provides for reimbursement of substantially all Federal, State, and local income taxes incurred by a transferred Federal employee on taxable moving expense reimbursements. Policies and procedures for the calculation and payment of the RIT allowance are contained in the Federal Travel Regulation (41 CFR part 302-17). GSA updates Federal, State, and Puerto Rico tax tables for calculating RIT allowance payments yearly to reflect changes in Federal, State, and Puerto Rico income tax brackets and rates. This amendment also provides a tax table necessary to compute the RIT allowance for employees who received reimbursement for relocation expenses in previous years. B. Executive Order 12866 This regulation is excepted from the definition of “regulation” or “rule” under Section 3(d)(3) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993 and, therefore, was not subject to review under Section 6(b) of that Executive Order. C. Regulatory Flexibility Act This final rule is not required to be published in the **Federal Register** for notice and comment as per the exemption specified in 5 U.S.C. 553(a)(2); therefore, the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., does not apply. D. Paperwork Reduction Act The Paperwork Reduction Act does not apply because this final rule does not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501 et seq. E. Small Business Regulatory Enforcement Fairness Act This final rule is also exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel. List of Subjects in 41 CFR Part 302-17 Government employees, Income taxes, Relocation allowances and entitlements, Transfers, Travel and transportation expenses. Dated: May 1, 2008. David L. Bibb, Acting Administrator of General Services. For the reasons set forth in the preamble, under 5 U.S.C. 5738, GSA amends 41 CFR Part 302-17 as set forth below: PART 302-17—RELOCATION INCOME TAX
(RIT)ALLOWANCE 1. The authority citation for 41 CFR Part 302-17 is revised to read as follows: Authority: 5 U.S.C. 5738; 20 U.S.C. 905(a); E.O. 11609, as amended, 36 FR 13747, 3 CFR, 1971-1975 Comp., p. 586. 2. Revise Appendixes A, B, C, and D to part 302-17 to read as follows: Appendix A to Part 302-17—Federal Tax Tables For RIT Allowance Federal Marginal Tax Rates by Earned Income Level and Filing Status—Tax Year 2007 [Use the following table to compute the RIT allowance for Federal taxes, as prescribed in 302-17.8(e)(1), on Year 1 taxable reimbursements received during calendar year 2007.] Marginal tax rate Percent Single taxpayer Over But not over Head of household Over But not over Married filing jointly/qualifying widows & widowers Over But not over Married filing separately Over But not over 10 $ 9,597 $18,107 $18,364 $30,153 $27,463 $42,942 $14,203 $21,913 15 18,107 44,461 30,153 64,200 42,942 94,016 21,913 46,764 25 44,461 95,997 64,200 142,780 94,016 167,442 46,764 84,076 28 95,997 191,453 142,780 225,385 167,442 243,961 84,076 124,354 33 191,453 390,566 225,385 405,567 243,961 404,547 124,354 205,412 35 390,566 405,567 404,547 205,412 Appendix B to Part 302-17—State Tax Tables For RIT Allowance State Marginal Tax Rates by Earned Income Level—Tax Year 2007 (Use the following table to compute the RIT allowance for State taxes, as prescribed in 302-17.8(e)(2), on taxable reimbursements received during calendar year 2007. The rates on the first line for each State are for employees who are married and file jointly; if there is a second line for a State, it displays the rates for employees who file as single. For more additional information, such as State rates for other filing statuses, please see the 2008 State Tax Handbook, pp. 259-274, available from CCH Inc., *http://tax.cchgroup.com/Books/default#S.* ) Marginal tax rates (stated in percents) for the earned income amounts specified in each column. 1 2 3 State (or district) $20,000-$24,999 $25,000-$49,999 $50,000-$74,999 $75,000 & Over 4 Alabama 5.00 5.00 5.00 5.00 Alaska 0.00 0.00 0.00 0.00 Arizona 2.88 3.36 3.36 3.36 If single status, married filing separately 5 2.88 3.36 4.24 4.24 Arkansas 6.00 7.00 7.00 7.00 California 2.00 4.30 9.30 9.30 If single status, married filing separately 5 2.00 9.30 9.30 9.30 Colorado 4.63 4.63 4.63 4.63 Connecticut 5.00 5.00 5.00 5.00 Delaware 5.20 5.55 5.95 5.95 District of Columbia 6.00 8.50 8.50 8.50 Florida 0.00 0.00 0.00 0.00 Georgia 6.00 6.00 6.00 6.00 Hawaii 6.40 7.60 7.90 8.25 If single status, married filing separately 5 7.60 7.90 8.25 8.25 Idaho 7.40 7.80 7.80 7.80 If single status, married filing separately 5 7.80 7.80 7.80 7.80 Illinois 3.00 3.00 3.00 3.00 Indiana 3.40 3.40 3.40 3.40 Iowa 6.48 7.92 8.98 8.98 Kansas 6.25 6.45 6.45 6.45 If single status, married filing separately 5 6.25 6.45 6.45 6.45 Kentucky 5.80 5.80 5.80 6.00 Louisiana 2.00 4.00 6.00 6.00 If single status, married filing separately 5 4.00 6.00 6.00 6.00 Maine 7.00 8.50 8.50 8.50 If single status, married filing separately 5 8.50 8.50 8.50 8.50 Maryland 4.75 4.75 4.75 4.75 Massachusetts 5.30 5.30 5.30 5.30 Michigan 3.90 3.90 3.90 3.90 Michigan on or after October 1, 2007 4.35 4.35 4.35 4.35 Minnesota 5.35 7.05 7.05 7.05 If single status, married filing separately 5 7.05 7.05 7.85 7.85 Mississippi 5.00 5.00 5.00 5.00 Missouri 6.00 6.00 6.00 6.00 Montana 6.90 6.90 6.90 6.90 Nebraska 3.57 6.84 6.84 6.84 If single status, married filing separately 5 5.12 6.84 6.84 6.84 Nevada 0.00 0.00 0.00 0.00 New Hampshire 0.00 0.00 0.00 0.00 New Jersey 1.75 1.75 3.50 5.525 If single status, married filing separately 5 1.75 5.525 5.525 6.370 New Mexico 5.30 5.30 5.30 5.30 New York 5.25 6.85 6.85 6.85 If single status, married filing separately 5 6.85 6.85 6.85 6.85 North Carolina 7.00 7.00 7.00 7.00 If single status, married filing separately 5 7.00 7.00 7.75 7.75 North Dakota 2.10 2.10 3.92 3.92 If single status, married filing separately 5 2.10 3.92 3.92 4.34 Ohio 3.895 4.546 4.546 5.194 Oklahoma 5.650 5.650 5.650 5.650 Oregon 9.00 9.00 9.00 9.00 Pennsylvania 3.07 3.07 3.07 3.07 Rhode Island 6 3.75 3.75 7.00 7.00 If single status, married filing separately 5 3.75 7.00 7.00 7.75 South Carolina 7.00 7.00 7.00 7.00 South Dakota 0.00 0.00 0.00 0.00 Tennessee 0.00 0.00 0.00 0.00 Texas 0.00 0.00 0.00 0.00 Utah 6.98 6.98 6.98 6.98 Vermont 3.60 7.20 7.20 7.20 If single status, married filing separately 5 3.60 7.20 8.50 8.50 Virginia 5.75 5.75 5.75 5.75 Washington 0.00 0.00 0.00 0.00 West Virginia 4.00 6.00 6.50 6.50 Wisconsin 6.50 6.50 6.50 6.50 Wyoming 0.00 0.00 0.00 0.00 [The above table/column headings established by IRS.] 1 Earned income amounts that fall between the income brackets shown in this table (e.g., $24,999.45, $49,999.75) should be rounded to the nearest dollar to determine the marginal tax rate to be used in calculating the RIT allowance. 2 If the earned income amount is less than the lowest income bracket shown in this table, the employing agency shall establish an appropriate marginal tax rate as provided in § 302-17.8(e)(2)(ii). 3 If two or more marginal tax rates of a State overlap an income bracket shown in this table, then the highest of the two or more State marginal tax rates is shown for that entire income bracket. For more specific information, see the 2008 State Tax Handbook, pp. 259-274, CCH, Inc., *http://tax.cchgroup.com/Books/default#S.* 4 This is an estimate. For earnings over $100,000, and for filing statuses other than those above, please consult actual tax tables. See 2008 State Tax Handbook, pp. 259-274, CCH, Inc., *http://tax.cchgroup.com/Books/default#S.* 5 This rate applies only to those individuals certifying that they will file under a single or married filing separately status within the states where they will pay income taxes. 6 The income tax rate for Rhode Island is 25 percent of Federal income tax rates, including capital gains rates and any other special rates for other types of income. Rates shown as a percent of Federal income tax liability must be converted to a percent of income as provided in § 302-17.8(e)(2)(iii). Effective for the 2007 tax year, taxpayers may elect to compute income tax liability based on a graduated rate schedule or an alternative flat tax equal to 7.5%. Appendix C to Part 302-17—Federal Tax Tables For RIT Allowance—Year 2 Estimated Ranges of Wage and Salary Income Corresponding to Federal Statutory Marginal Income Tax Rates by Filing Status in 2007 [The following table is to be used to determine the Federal marginal tax rate for Year 2 for computation of the RIT allowance as prescribed in 301-17.8(e)(1). This table is to be used for employees whose Year 1 occurred during calendar years 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006 or 2007.] Marginal tax rate Percent Single taxpayer Over But not over Head of household Over But not over Married filing jointly/qualifying widows & widowers Over But not over Married filing separately Over But not over 10 $8,739 16,560 $16,538 $27,374 $24,163 $38,534 $12,036 $19,194 15 16,560 41,041 27,374 59,526 38,534 86,182 19,194 43,330 25 41,041 88,541 59,526 128,605 86,182 154,786 43,330 79,441 28 88,541 175,222 128,605 203,511 154,786 224,818 79,441 114,716 33 175,222 360,212 203,511 375,305 224,818 374,173 114,716 188,184 35 360,212 375,305 374,173 188,184 Appendix D to Part 302-17—Puerto Rico Tax Tables for RIT Allowance Puerto Rico Marginal Tax Rates by Earned Income Level—Tax Year 2007 (Use the following table to compute the RIT allowance for Puerto Rico taxes, as prescribed in 302-17.8(e)(4)(i), on taxable reimbursements received during calendar year 2007.) Marginal tax rate For married person living with spouse and filing jointly, married person not living with spouse, single person, or head of household Percent Over But not over 7% $2,000 17,000 14% + 1,190 17,000 30,000 25% + 3,010 30,000 50,000 33% + 8,010 50,000 Marginal tax rate For married person living with spouse and filing separately Percent Over But not over 7% $1,000 8,500 14% + $595 8,500 15,000 25% + 1,505 15,000 25,000 33% + 4,005 25,000 Source: Individual Income Tax Return 2007—Long Form; Commonwealth of Puerto Rico, Department of the Treasury,P.O. Box 9022501, San Juan, PR 00902-2501; *http://www.hacienda.gobierno.pr/.* [FR Doc. E8-10022 Filed 5-6-08; 8:45 am] BILLING CODE 6820-14-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 Final Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Final rule. SUMMARY: Base (1% annual chance) Flood Elevations
(BFEs)and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The date of issuance of the Flood Insurance Rate Map
(FIRM)showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated on the table below. ADDRESSES: The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA)makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety
(90)days have elapsed since that publication. The Assistant Administrator of the Mitigation Directorate has resolved any appeals resulting from this notification. This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60. Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown. *National Environmental Policy Act.* This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification.* This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This final rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This final rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.11 [Amended] 2. The tables published under the authority of § 67.11 are amended as follows: Flooding source(s) Location of referenced elevation * Elevation in feet
(NGVD)+ Elevation in feet
(NAVD)# Depth in feet above ground Modified Communities affected Chowan County, North Carolina and Incorporated Areas Docket Nos.: FEMA-D-7820, FEMA-D-7578, and FEMA-B-7736 Burnt Mill Creek At a point just upstream of Burnt Mill Road +6 Unincorporated Areas of Chowan County. Approximately 1,000 feet upstream of U.S. Highway 17 +13 Filberts Creek Approximately 250 feet downstream of Virginia Road/NC Highway 32 +7 Town of Edenton. Approximately 1,120 feet upstream of Virginia Road/NC Highway 32 +14 Goodwin Mill Creek Approximately 1.7 miles upstream of Center Hill Road +14 Unincorporated Areas of Chowan County. At Center Hill Road +14 Northeast Tributary of Queen Anne Creek At the confluence with Queen Anne Creek +7 Unincorporated Areas of Chowan County. Approximately 920 feet upstream of the confluence with Northeast Tributary of Queen Anne Creek Tributary 1 +12 Northeast Tributary of Queen Anne Creek Tributary 1 At the confluence with Northeast Tributary of Queen Anne Creek +8 Unincorporated Areas of Chowan County. Approximately 1,150 feet upstream of the confluence with Northeast Tributary of Queen Anne Creek +14 Northwest Tributary of Queen Anne Creek At the confluence with Queen Anne Creek +7 Unincorporated Areas of Chowan County, Town of Edenton. Approximately 80 feet downstream of Railroad +16 Pembroke Creek At Wildcat Road (State Road 1208) +7 Unincorporated Areas of Chowan County. Approximately 1.2 miles upstream of the confluence with Pembroke Creek Tributary 8 +13 Pembroke Creek Tributary 1 Approximately 0.5 mile upstream of the confluence with Pembroke Creek +8 Unincorporated Areas of Chowan County. Approximately 330 feet downstream of VS Road/NC Highway 32 +16 Pembroke Creek Tributary 2 At the confluence with Pembroke Creek +7 Unincorporated Areas of Chowan County. Approximately 0.4 mile upstream of the confluence with Pembroke Creek +8 Pembroke Creek Tributary 3 At the confluence with Pembroke Creek +7 Unincorporated Areas of Chowan County. Approximately 0.5 mile upstream of the confluence with Pembroke Creek +8 Pembroke Creek Tributary 4 At the confluence with Pembroke Creek +7 Unincorporated Areas of Chowan County. Approximately 1.4 miles upstream of Greenhall Road (State Road 1316) +15 Pembroke Creek Tributary 5 At the confluence with Pembroke Creek +8 Unincorporated Areas of Chowan County. Approximately 0.6 mile upstream of Greenhall Road (State Road 1316) +13 Pembroke Creek Tributary 6 At the confluence with Pembroke Creek +10 Unincorporated Areas of Chowan County. Approximately 1,620 feet upstream of the confluence with Pembroke Creek +11 Pembroke Creek Tributary 7 At the confluence with Pembroke Creek +11 Unincorporated Areas of Chowan County. Approximately 1,700 feet upstream of the confluence with Pembroke Creek +11 Pembroke Creek Tributary 8 At the confluence with Pembroke Creek +12 Unincorporated Areas of Chowan County. Approximately 0.5 mile upstream of the confluence with Pembroke Creek Tributary 8A +12 Pembroke Creek Tributary 8A At the confluence with Pembroke Creek Tributary 8 +12 Unincorporated Areas of Chowan County. Approximately 0.5 mile upstream of the confluence with Pembroke Creek Tributary 8 +12 Queen Anne Creek Just downstream of Paxton Lane +6 Unincorporated Areas of Chowan County, Town of Edenton. Approximately 490 feet upstream of U.S. 17 BYP +15 Rockyhock Creek At Rocky Hock Road (State Road 1222) +7 Unincorporated Areas of Chowan County. Approximately 0.8 mile upstream of NC Highway 32 +29 Rockyhock Creek Tributary 1 At the confluence with Rockyhock Creek +7 Unincorporated Areas of Chowan County. Approximately 0.6 mile upstream of the confluence with Rockyhock Creek +9 Rockyhock Creek Tributary 2 At the confluence with Rockyhock Creek +8 Unincorporated Areas of Chowan County. Approximately 0.9 mile upstream of the confluence with Rockyhock Creek +9 Rockyhock Creek Tributary 3 At the confluence with Rockyhock Creek +11 Unincorporated Areas of Chowan County. Approximately 0.8 mile upstream of Rocky Hock Landing Road (State Road 1224) +15 Rockyhock Creek Tributary 3A At the confluence with Rockyhock Creek Tributary 3 +11 Unincorporated Areas of Chowan County. Approximately 0.6 mile upstream of the confluence with Rockyhock Creek Tributary 3 +15 Rockyhock Creek Tributary 4 At the confluence with Rockyhock Creek +11 Unincorporated Areas of Chowan County. Approximately 100 feet downstream of Nixon Road (State Road 1225) +14 Rockyhock Creek Tributary 5 At the confluence with Rockyhock Creek +11 Unincorporated Areas of Chowan County. Approximately 350 feet downstream of Cisco Road (State Road 1314) +36 Rockyhock Creek Tributary 5A At the confluence with Rockyhock Creek Tributary 5 +20. Unincorporated Areas of Chowan County. Approximately 0.5 mile upstream of the confluence with Rockyhock Creek Tributary 5 +25 Rockyhock Creek Tributary 6 At the confluence with Rockyhock Creek +12 Unincorporated Areas of Chowan County. Approximately 0.4 mile upstream of Rocky Hock Landing Road (State Road 1224) +15 Rockyhock Creek Tributary 7 At the confluence with Rockyhock Creek +15 Unincorporated Areas of Chowan County. Approximately 0.8 mile upstream of the confluence with Rockyhock Creek +18 Rockyhock Creek Tributary 8 At the confluence with Rockyhock Creek +15 Unincorporated Areas of Chowan County. Approximately 150 feet downstream of NC Highway 32 +22 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Town of Edenton Maps are available for inspection at Edenton Town Hall, 400 South Broad Street, Edenton, North Carolina. Unincorporated Areas of Chowan County Maps are available for inspection at Chowan County Planning Department, 108 East King Street, Edenton, North Carolina. Union County, North Carolina and Incorporated Areas Docket No.: FEMA-D-7668 and FEMA-D-7808 Adams Branch At the confluence with Richardson Creek +540 Unincorporated Areas of Union County. Approximately 0.5 mile upstream of Richardson Road (SR 2158) +629 Adams Branch Tributary 1 At the confluence with Adams Branch +569 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of the confluence with Adams Branch +602 Austin Branch At the confluence with Salem Creek +486 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of Austin Grove Church Road (SR 1751) +580 Barkers Branch At the confluence with Lanes Creek +430 Unincorporated Areas of Union County. Approximately 1,990 feet upstream of Tanner Road (SR 1935) +531 Bates Branch At the confluence with East Fork Twelvemile Creek +526 Unincorporated Areas of Union County, Town of Mineral Springs. Approximately 150 feet downstream of McNeely Road +603 Bearskin Creek Approximately 1,900 feet upstream of the confluence with Richardson Creek +485 Unincorporated Areas of Union County, City of Monroe. Approximately 360 feet upstream of Price Short Cut Road (SR 1351) +636 Beaverdam Creek At the confluence with Lanes Creek +413 Unincorporated Areas of Union County. Approximately 1.2 miles upstream of Russell Pope Road (SR 1948) +571 Beaverdam Creek
(West)At the confluence with Richardson Creek +520 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of Parks McCorkle Road (SR 1152) +651 Beaverdam Creek Tributary 1 At the confluence with Beaverdam Creek +460 Unincorporated Areas of Union County. Approximately 0.8 mile upstream of Doctor Blair Road (SR 1902) +498 Beaverdam Creek Tributary 1A At the confluence with Beaverdam Creek Tributary 1 +462 Unincorporated Areas of Union County. Approximately 0.5 mile upstream of the confluence with Beaverdam Creek Tributary 1 +492 Beaverdam Creek Tributary 1B At the confluence with Beaverdam Creek Tributary 1 +464 Unincorporated Areas of Union County. Approximately 1,570 feet upstream of the confluence of Beaverdam Creek Tributary 1B1 +484 Beaverdam Creek Tributary 1B1 At the confluence with Beaverdam Creek Tributary 1B +473 Unincorporated Areas of Union County. Approximately 0.4 mile upstream of the confluence with Beaverdam Creek Tributary 1B +483 Beaverdam Creek Tributary 2 At the confluence with Beaverdam Creek +467 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of the confluence with Beaverdam Creek +503 Becky Branch At the confluence with Salem Creek +440 Unincorporated Areas of Union County. Approximately 0.9 mile upstream of the confluence of Becky Branch Tributary 2 +500 Becky Branch Tributary 1 At the confluence with Becky Branch +440 Unincorporated Areas of Union County. Approximately 0.4 mile upstream of Old Lawyers Road (SR 1736) +491 Becky Branch Tributary 2 At the confluence with Becky Branch +465 Unincorporated Areas of Union County. Approximately 280 feet upstream of Old Lawyers Road (SR 1736) +510 Blue Branch At the confluence with Cane Creek +510 Unincorporated Areas of Union County. Approximately 0.4 mile upstream of Bud Huey Road (State Route 115) +549 Blythe Creek At the confluence with East Fork Twelvemile Creek +510 Unincorporated Areas of Union County. Approximately 1.0 mile upstream of Waxhaw Highway +607 Blythe Creek Tributary At the confluence with Blythe Creek +554 Unincorporated Areas of Union County. Approximately 0.4 mile upstream of the confluence with Blythe Creek +564 Booger Branch At the confluence with Cane Creek +514 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of the confluence with Booger Branch Tributary 2 +577 Booger Branch Tributary 1 At the confluence with Booger Branch +514 Unincorporated Areas of Union County. Approximately 0.8 mile upstream of Bud Huey Road (State Route 1115) +561 Booger Branch Tributary 2 At the confluence with Booger Branch +550 Unincorporated Areas of Union County. Approximately 1.4 miles upstream of the confluence with Booger Branch +611 Brandon Branch At the confluence with Gold Branch +439 Unincorporated Areas of Union County. Approximately 950 feet upstream of Sugar and Wine Road (SR 1649) +518 Brown Creek Approximately 0.5 mile downstream of the Anson/Union County boundary +326 Unincorporated Areas of Union County, City of Monroe. Approximately 1.1 miles upstream of Canal Road (SR 1919) +374 Brown Creek Tributary 5 At the confluence with Brown Creek +331 Unincorporated Areas of Union County. Approximately 640 feet upstream of Zion Church Road +354 Brown Creek Tributary 6 At the confluence with Brown Creek +337 Unincorporated Areas of Union County. Approximately 980 feet upstream of Zion Church Road +379 Buck Branch At the confluence with Little Richardson Creek +503 Unincorporated Areas of Union County. Approximately 950 feet downstream of Magnum Dairy Road (SR 2108) +599 Buffalo Creek At the North Carolina/South Carolina State boundary +501 Unincorporated Areas of Union County. Approximately 0.9 mile upstream of Jack Davis Road (SR 2125) +631 Buffalo Creek Tributary 1 At the confluence with Buffalo Creek +502 Unincorporated Areas of Union County. Approximately 1,370 feet upstream of Trinity Church Road (SR 2153) +594 Bull Branch At the confluence with Richardson Creek +425 Unincorporated Areas of Union County. Approximately 1.2 miles upstream of Olive Branch Road (SR 1006) +510 Camp Branch At the confluence with Bearskin Creek +585 Unincorporated Areas of Union County, City of Monroe. Approximately 1,500 feet upstream of Weddington Road +611 Cane Creek Approximately 300 feet downstream of the Lancaster County, South Carolina/Union County, North Carolina State boundary +502 Unincorporated Areas of Union County. Approximately 250 feet upstream of Rocky River Road (State Route 522) +647 Cane Creek Tributary 1 At the confluence with Cane Creek +562 Unincorporated Areas of Union County. Approximately 1.1 miles upstream of Cane Creek Road (State Route 1221) +612 Cane Creek Tributary 2 At the confluence with Cane Creek +580 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of the confluence with Cane Creek +607 Cane Creek Tributary 3 At the confluence with Cane Creek +586 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of the confluence with Cane Creek +604 Carolina Creek At the confluence with Lanes Creek +469 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of Van Sneed Road (SR 1925) +548 Cedar Branch At the confluence with Lanes Creek +446 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of the confluence with Lanes Creek +485 Chinkapin Creek At the confluence with Stewarts Creek +492 Unincorporated Areas of Union County, Town of Unionville. Approximately 820 feet upstream of Tom Helms Road +551 Chinkapin Creek Tributary 1 At the confluence with Chinkapin Creek +505 Town of Unionville. Approximately 0.8 mile upstream of the confluence with Chinkapin Creek +550 Chinkapin Creek Tributary 2 At the confluence with Chinkapin Creek +515 Town of Unionville. Approximately 900 feet upstream of Skies Mill Road +570 Chinkapin Creek Tributary 2A At the confluence with Chinkapin Creek Tributary 2 +523 Town of Unionville. Approximately 0.5 mile upstream of Unionville Road +568 Clear Creek At the confluence with Rocky River +469 Town of Fairview. Approximately 1,400 feet upstream of the confluence of Long Branch +486 Cool Spring Branch At the confluence with Lanes Creek +437 Unincorporated Areas of Union County. Approximately 1.4 miles upstream of White Store Road (SR 1003) +476 Cowhorn Branch At the confluence with Tarkill Branch +552 Unincorporated Areas of Union County, Village of Marvin. Approximately 0.4 mile upstream of Waxhaw Marvin Road (State Route 1307) +572 Cowpens Branch At the confluence with Wicker Branch +539 Unincorporated Areas of Union County. Approximately 0.9 mile upstream of Medlin Road (SR 2102) +608 Crisco Branch At the confluence with Rocky River +348 Unincorporated Areas of Union County. Approximately 1.5 miles upstream of the confluence with Rocky River +436 Crooked Creek At the confluence with Rocky River +426 Unincorporated Areas of Union County, Town of Fairview. At the confluence of North Fork Crooked Creek and South Fork Crooked Creek +570 Crooked Creek Tributary 1 At the confluence with Crooked Creek +565 Town of Fairview, Town of Unionville. Approximately 0.4 mile upstream of Clontz Long Road +592 Culvert Branch Approximately 700 feet upstream of the confluence with West Fork Twelvemile Creek +558 Unincorporated Areas of Union County. Approximately 1,000 feet upstream of Timber Lane +647 Davis Branch At the confluence with Waxhaw Creek +512 Unincorporated Areas of Union County. Approximately 1.5 miles upstream of the confluence with Davis Branch Tributary 1 +584 Davis Branch Tributary 1 At the confluence with Davis Branch +535 Unincorporated Areas of Union County. Approximately 1.5 miles upstream of the confluence with Davis Branch +614 Davis Mine Creek Approximately 120 feet downstream of Waxhaw-Indian Trail Road +601 Unincorporated Areas of Union County, Village of Wesley Chapel, Town of Indian Trail, Town of Stallings, Town of Weddington. Approximately 650 feet upstream of Lakewood Drive +722 Davis Mine Creek Tributary 1 At the confluence with Davis Mine Creek +649 Town of Indian Trail. Approximately 1,500 feet upstream of McLendon Road +682 Dry Fork At the confluence with Bearskin Creek +581 City of Monroe. Approximately 1,300 feet upstream of North Rocky Road (SR 1007) +638 Duck Creek At the confluence with Goose Creek +468 Unincorporated Areas of Union County, Town of Fairview. Approximately 0.8 mile upstream of the confluence with Duck Creek Tributary 3 +575 Duck Creek Tributary 1 At the confluence with Duck Creek +483 Town of Fairview. Approximately 0.4 mile upstream of the confluence with Duck Creek +496 Duck Creek Tributary 2 At the confluence with Duck Creek +509 Town of Fairview. Approximately 60 feet downstream of Crowell Dairy Road +560 Duck Creek Tributary 3 At the confluence with Duck Creek +537 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of Rock Hill Church Road (SR 1539) +614 East Fork Stewarts Creek Approximately 110 feet upstream of the confluence with Stewarts Creek +537 Unincorporated Areas of Union County, Town of Unionville. Approximately 1.2 miles upstream of the confluence of East Fork Stewarts Creek Tributary 1 +597 East Fork Stewarts Creek Tributary 1 At the confluence with East Fork Stewarts Creek +572 Unincorporated Areas of Union County, Town of Unionville. Approximately 1,840 feet upstream of the confluence of East Fork Stewarts Creek Tributary 1A +586 East Fork Stewarts Creek Tributary 1A At the confluence with East Fork Stewarts Creek Tributary 1 +578 Unincorporated Areas of Union County. Approximately 680 feet upstream of the confluence with East Fork Stewarts Creek Tributary 1 +590 East Fork Twelvemile Creek Approximately 0.4 mile upstream of the confluence with Twelvemile Creek and West Fork Twelvemile Creek +510 Unincorporated Areas of Union County, Village of Wesley Chapel, Town of Indian Trail, Town of Mineral Springs, Town of Waxhaw. Approximately 1,710 feet upstream of Grayson Parkway +621 East Fork Twelvemile Creek Tributary 1 At the confluence with East Fork Twelvemile Creek +520 Unincorporated Areas of Union County, Village of Wesley Chapel. Approximately 735 feet upstream of Farm Creek Road +560 East Fork Twelvemile Creek Tributary 2 At the confluence with East Fork Twelvemile Creek +522 Unincorporated Areas of Union County, Village of Wesley Chapel. Approximately 1.1 miles upstream of the confluence with East Fork Twelvemile Creek +545 East Fork Twelvemile Creek Tributary 3 At the confluence with East Fork Twelvemile Creek +562 Unincorporated Areas of Union County, City of Monroe, Village of Wesley Chapel. Approximately 1,300 feet upstream of Sanford Lane (State Route 1394) +650 East Fork Twelvemile Creek Tributary 4 At the confluence with East Fork Twelvemile Creek +583 Village of Wesley Chapel, Town of Indian Trail. Approximately 1.2 miles upstream of Mayflower Trail +620 East Fork Twelvemile Creek Tributary 5 At the confluence with East Fork Twelvemile Creek +597 Unincorporated Areas of Union County, City of Monroe, Town of Indian Trail. Approximately 725 feet downstream of Capital Drive +639 East Fork Twelvemile Creek Tributary 6 At the confluence with East Fork Twelvemile Creek +610 Unincorporated Areas of Union County, Town of Indian Trail. Approximately 0.5 mile upstream of the confluence with East Fork Twelvemile Creek +629 Flag Branch At the confluence with Chinkapin Creek +494 Unincorporated Areas of Union County, Town of Unionville. Approximately 180 feet upstream of Morgan Mill Road +524 Gibbs Branch At the confluence with Mill Creek (South) +519 Unincorporated Areas of Union County. Approximately 230 feet upstream of Arant Road (SR 2117) +555 Glen Branch At the confluence with Waxhaw Creek +592 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of Nesbit Road (State Route 1131) +633 Gold Branch At the confluence with Richardson Creek +396 Unincorporated Areas of Union County. Approximately 0.9 mile upstream of New Salem Road (SR 1627) +506 Gold Branch
(East)At the confluence with Grapevine Creek +449 Unincorporated Areas of Union County. Approximately 0.5 mile upstream of Marshville Olive Branch Road (SR 1719) +503 Goose Creek At the confluence with Rocky River +466 Unincorporated Areas of Union County, Town of Fairview, Town of Indian Trail, Town of Stallings. At the Mecklenburg/Union County boundary +626 Goose Creek Tributary 1 At the confluence with Goose Creek +468 Town of Fairview. Approximately 50 feet downstream of Roy Kindley Road +524 Goose Creek Tributary 2 At the confluence with Goose Creek +520 Town of Fairview. Approximately 0.6 mile upstream of the confluence with Goose Creek +536 Goose Creek Tributary 3 Approximately 800 feet upstream of the confluence with Goose Creek +540 Unincorporated Areas of Union County, Town of Indian Trail. Approximately 0.7 mile upstream of the confluence with Goose Creek +556 Goose Creek Tributary 4 Approximately 350 feet upstream of the confluence with Goose Creek +593 Town of Indian Trail, Town of Stallings. Approximately 1.4 miles upstream of the confluence with Goose Creek +660 Grapevine Creek At the confluence with Richardson Creek +360 Unincorporated Areas of Union County. Approximately 1.3 miles upstream of the confluence of Gold Branch
(East)+495 Grapevine Creek Tributary 1 At the confluence with Grapevine Creek +418 Unincorporated Areas of Union County. Approximately 530 feet upstream of Lucy Short Cut Road (SR 1745) +459 Grapevine Creek Tributary 2 At the confluence with Grapevine Creek +434 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of the confluence with Grapevine Creek +479 Grassy Branch At the confluence with Crooked Creek +518 Unincorporated Areas of Union County, Town of Fairview, Town of Unionville. Approximately 390 feet upstream of West Lawyers Road (SR 1675) +614 Grassy Branch Tributary 1 At the confluence with Grassy Branch +549 Town of Unionville. Approximately 1,520 feet upstream of Unionville Road +569 Grassy Creek At the confluence with Rocky River +374 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of Braswell-Rushing Road +566 Grassy Creek Tributary 1 At the confluence with Rocky River +459 Unincorporated Areas of Union County. Approximately 550 feet upstream of Morgan Mill Road +502 Grassy Creek Tributary 2 At the confluence with Grassy Creek +498 Unincorporated Areas of Union County. Approximately 0.5 mile upstream of the confluence with Grassy Creek +516 Gum Log Branch At the confluence with Lanes Creek +522 Unincorporated Areas of Union County. Approximately 0.8 mile upstream of Jack Davis Road (SR 2125) +586 Half Way Branch At the confluence with Meadow Branch +506 Unincorporated Areas of Union County, Town of Wingate. Approximately 160 feet upstream of West Elm Street +563 Haney Branch At the confluence with Beaverdam Creek +483 Unincorporated Areas of Union County. Approximately 630 feet upstream of Old Pageland Marshville Road (SR 1937) +520 Jacks Branch At the confluence with Salem Creek +412 Unincorporated Areas of Union County. Approximately 0.4 mile upstream of Henry Ellis Drive +531 Jacks Branch Tributary 1 At the confluence with Jacks Branch +481 Unincorporated Areas of Union County. Approximately 0.4 mile upstream of the confluence with Jacks Branch +492 Keener Branch At the confluence with Waxhaw Creek +513 Unincorporated Areas of Union County. Approximately 0.9 mile upstream of Farmbrook Drive (State Route 1271) +539 Lacey Branch At the Union/Anson County boundary +445 Unincorporated Areas of Union County. Approximately 0.8 mile upstream of the confluence of Lacey Branch Tributary 2 +506 Lacey Branch Tributary 1 At the confluence with Lacey Branch +479 Unincorporated Areas of Union County. Approximately 1,610 feet upstream of the confluence with Lacey Branch +496 Lacey Branch Tributary 2 At the confluence with Lacey Branch +481 Unincorporated Areas of Union County. Approximately 650 feet upstream of Brice Griffin Road (SR 1727) +502 Lanes Creek Approximately 0.7 mile upstream of Hasty Road (SR 1901) +412 Unincorporated Areas of Union County. Approximately 1,310 feet upstream of Jack Davis Road (SR 2125) +624 Lanes Creek Tributary 6 At the confluence with Lanes Creek +438 Unincorporated Areas of Union County. Approximately 1,770 feet upstream of the confluence with Lanes Creek +442 Lanes Creek Tributary 7 At the confluence with Lanes Creek +444 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of the confluence with Lanes Creek +482 Lanes Creek Tributary 8 At the confluence with Lanes Creek +455 Unincorporated Areas of Union County. Approximately 1.1 miles upstream of the confluence with Lanes Creek +514 Lanes Creek Tributary 9 At the confluence with Lanes Creek +461 Unincorporated Areas of Union County. Approximately 0.4 mile upstream of Smith Town Road (SR 1915) +483 Lee Branch At the confluence with Bates Branch +541 Unincorporated Areas of Union County, Town of Mineral Springs. Approximately 375 feet downstream of Waxhaw-Monroe Road (State Route 1111) +618 Lee Branch Tributary 1 At the confluence with Lee Branch +603 Town of Mineral Springs. Approximately 0.5 mile upstream of the confluence with Lee Branch +625 Lee Branch Tributary 1A At the confluence with Lee Branch Tributary 1 +603 Town of Mineral Springs. Approximately 1,250 feet upstream of the confluence with Lee Branch Tributary 1 +617 Lick Branch
(East)At the confluence with Lanes Creek +413 Unincorporated Areas of Union County, Town of Marshville. Approximately 410 feet upstream of West Main Street +557 Lick Branch
(East)Tributary 1 At the confluence with Lick Branch
(East)+493 Unincorporated Areas of Union County, Town of Marshville. Approximately 1.0 mile upstream of the confluence with Lick Branch
(East)+517 Lick Branch
(East)Tributary 1A At the confluence with Lick Branch
(East)Tributary 1 +496 Unincorporated Areas of Union County, Town of Marshville. Approximately 0.3 mile upstream of Traywick Road +517 Lick Branch
(West)Approximately 230 feet upstream of the confluence with Stewarts Creek +535 City of Monroe. Approximately 170 feet upstream of U.S. Highway 74 +586 Lick Branch
(West)Tributary 1 At the confluence with Lick Branch
(West)+576 City of Monroe. Approximately 710 feet upstream of the confluence with Lick Branch
(West)+582 Little Brown Creek At the confluence with Brown Creek +351 Unincorporated Areas of Union County. Approximately 190 feet upstream of the confluence of Wallace Branch +396 Little Mill Creek At the confluence with Mill Creek +466 Unincorporated Areas of Union County, Town of Unionville. Approximately 120 feet upstream of Lark Trail +551 Little Richardson Creek At the confluence with Richardson Creek +495 Unincorporated Areas of Union County, City of Monroe. Approximately 1,980 feet upstream of Bruce Thomas Road (SR 2132) +604 Little Richardson Creek Tributary 1 At the confluence with Little Richardson Creek +495 Unincorporated Areas of Union County, City of Monroe. Approximately 0.8 mile upstream of the confluence with Little Richardson Creek +533 Little Richardson Creek Tributary 2 At the confluence with Little Richardson Creek +556 Unincorporated Areas of Union County. Approximately 620 feet upstream of Troy Medlin Road (SR 2131) +606 Little Richardson Creek Tributary 3 At the confluence with Little Richardson Creek +581 Unincorporated Areas of Union County. Approximately 1.6 miles upstream of the confluence with Richardson Creek +624 Little Twelvemile Creek At the confluence with East Fork Twelvemile Creek +527 Unincorporated Areas of Union County, Town of Mineral Springs. Approximately 0.9 mile upstream of Crow Road +635 Little Twelvemile Creek Tributary 1 At the confluence with Little Twelvemile Creek +563 Unincorporated Areas of Union County. Approximately 925 feet upstream of Porter Drive (State Route 2552) +600 Little Twelvemile Creek Tributary 2 At the confluence with Little Twelvemile Creek +588 Unincorporated Areas of Union County, Town of Mineral Springs. Approximately 1,500 feet upstream of Old Waxhaw-Monroe Road (State Route 1149) +626 Little Watson Branch At the confluence with Water Branch +314 Unincorporated Areas of Union County. Approximately 250 feet downstream of NC 218 Highway +437 Little Watson Branch Tributary 1 At the confluence with Little Watson Branch +341 Unincorporated Areas of Union County. Approximately 360 feet upstream of Burnsville Road (SR 1714) +418 Long Branch At the confluence with Clear Creek +483 Town of Fairview. Approximately 0.9 mile upstream of the confluence with Clear Creek +533 Lynches Creek At the confluence with Rays Fork +492 Unincorporated Areas of Union County, City of Monroe. Approximately 1.1 miles upstream of Old Pageland-Monroe Road (SR 1941) +603 Lynches River At the North Carolina/South Carolina State boundary +483 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of Circle Ranch Road (SR 2161) +641 Lynches River Tributary 1 At the confluence with Lynches River +546 Unincorporated Areas of Union County. Approximately 1,640 feet upstream of Trinity Church Road (SR 2166) +583 Lynches River Tributary 2 At the confluence with Lynches River +609 Unincorporated Areas of Union County. Approximately 0.5 mile upstream of the confluence with Lynches River +619 Machine Branch At the confluence with East Fork Twelvemile Creek +517 Unincorporated Areas of Union County. Approximately 780 feet downstream of Waxhaw-Indian Trail Road (State Route 1008) +573 Maness Branch Approximately 400 feet downstream of the Union/Anson County boundary +436 Unincorporated Areas of Union County. Approximately 1,020 feet upstream of Nance Tarlton Road (SR 1724) +493 Maple Springs Branch At the confluence with Beaverdam Creek +490 Unincorporated Areas of Union County. Approximately 0.9 mile upstream of Faulks Church Road (SR 1947) +518 Marvin Branch At the confluence with Sixmile Creek +577 Village of Marvin. Approximately 1,150 feet upstream of Saddle Avenue +605 McBride Branch At the confluence with Sixmile Creek +583 Unincorporated Areas of Union County, Village of Marvin. Approximately 385 feet upstream of Kentucky Derby Drive (State Route 3248) +652 McBride Branch Tributary 1 At the confluence with McBride Branch +601 Unincorporated Areas of Union County. Approximately 950 feet upstream of Beckford Glen Drive (State Route 2679) +624 McNeely Branch At the confluence with Blythe Creek +571 Unincorporated Areas of Union County, Town of Waxhaw. Approximately 1.6 miles upstream of Waxhaw Highway +616 Meadow Branch At the confluence with Richardson Creek +433 Unincorporated Areas of Union County, Town of Wingate. Approximately 970 feet downstream of Old Highway Road (SR 1740) +553 Meadow Branch Tributary 1 At the confluence with Meadow Branch +490 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of McIntyre Road (SR 1631) +550 Meadow Branch Tributary 2 At the confluence with Meadow Branch +503 Unincorporated Areas of Union County. Approximately 180 feet downstream of Austin Chaney Road (SR 1758) +565 Meadow Branch Tributary 3 At the confluence with Meadow Branch +505 Unincorporated Areas of Union County. Approximately 240 feet downstream of Wade Rorie Road (SR 1788) +549 Middle Fork At the confluence with Rays Fork +492 Unincorporated Areas of Union County, City of Monroe. Approximately 450 feet upstream of Old Monroe Marshville Road (SR 1957) +560 Mill Creek At the confluence with Richardson Creek +443 Unincorporated Areas of Union County, Town of Unionville. Approximately 300 feet upstream of Supreme Drive +516 Mill Creek (South) At the confluence with Lanes Creek +495 Unincorporated Areas of Union County. Approximately 700 feet upstream of Budyler Road (SR 2116) +545 Missouri Branch At the confluence with Davis Branch +533 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of Shady Oak Drive +599 Molly Branch At the confluence with East Fork Twelvemile Creek +549 Unincorporated Areas of Union County. Approximately 30 feet downstream of Willoughby Road (State Route 1334) +613 Mountain Springs Branch At the confluence with Wicker Branch +561 Unincorporated Areas of Union County. Approximately 0.4 mile upstream of Joe Griffin Road (SR 1945) +593 Mundys Run At the confluence with West Fork Twelvemile Creek +535 Unincorporated Areas of Union County, Town of Weddington. Approximately 0.5 mile upstream of the confluence of Mundys Run Tributary 3 +635 Mundys Run Tributary 1 At the confluence with Mundys Run +562 Town of Weddington. Approximately 1,130 feet upstream of Skytop Road +613 Mundys Run Tributary 2 At the confluence with Mundys Run +573 Town of Weddington. Approximately 0.8 mile upstream of the confluence with Mundys Run +605 Mundys Run Tributary 3 At the confluence with Mundys Run +614 Town of Weddington. Approximately 1,460 feet upstream of Weddington Road +638 Norkett Branch At the confluence with Lanes Creek +439 Unincorporated Areas of Union County. Approximately 1,510 feet downstream of Lansford Road (SR 1005) +482 North Fork Crooked Creek At the confluence with Crooked Creek +570 Unincorporated Areas of Union County, Town of Fairview, Town of Hemby Bridge, Town of Indian Trail, Town of Stallings. Approximately 850 feet upstream of Stevens Mill Road +676 North Fork Crooked Creek Tributary At the confluence with North Fork Crooked Creek +632 Unincorporated Areas of Union County, Town of Hemby Bridge, Town of Stallings. Approximately 0.7 mile upstream of Stevens Mill Road (SR 1524) +658 North Fork Crooked Creek Tributary 1 Approximately 0.4 mile upstream of the confluence with North Fork Crooked Creek +590 Unincorporated Areas of Union County, Town of Indian Trail. Approximately 0.5 mile upstream of Poplin Road (SR 1508) +617 North Fork Crooked Creek Tributary 3 At the confluence with North Fork Crooked Creek +622 Unincorporated Areas of Union County, Town of Hemby Bridge, Town of Indian Trail. Approximately 1.0 mile upstream of Stinson Hartis Road +657 North Fork Crooked Creek Tributary 4 At the confluence with North Fork Crooked Creek +650 Unincorporated Areas of Union County, Town of Indian Trail, Town of Stallings. Approximately 210 feet downstream of Union West Boulevard +667 North Fork Crooked Creek Tributary 5 At the confluence with North Fork Crooked Creek +663 Town of Stallings. Approximately 1,740 feet upstream of the confluence with North Fork Crooked Creek +674 North Fork Crooked Creek Tributary 6 At the confluence with North Fork Crooked Creek +643 Unincorporated Areas of Union County, Town of Stallings. Approximately 1,850 feet upstream of Stallings Road +720 North Fork Crooked Creek Tributary A At the confluence with North Fork Crooked Creek +598 Unincorporated Areas of Union County, Town of Indian Trail. At the downstream side of Secrest Short Cut Road (State Road 1501) +622 North Fork Crooked Creek Tributary B At the confluence with North Fork Crooked Creek Tributary A +602 Unincorporated Areas of Union County, Town of Indian Trail. Approximately 850 feet upstream of Secrest Short Cut Road +619 Paddle Branch Approximately 800 feet upstream of the confluence with Goose Creek +526 Unincorporated Areas of Union County, Town of Indian Trail, Town of Stallings. Approximately 0.6 mile upstream of Flagstick Drive +635 Polecat Creek At the North Carolina/South Carolina State boundary +534 Unincorporated Areas of Union County. Approximately 360 feet upstream of Irby Road (SR 2170) +630 Polecat Creek Tributary 1 At the confluence with Polecat Creek +588 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of Carl Belk Road (SR 2168) +610 Price Mill Creek At the confluence with East Fork Twelvemile Creek +548 Unincorporated Areas of Union County, Town of Indian Trail, Village of Wesley Chapel. Approximately 650 feet upstream of Kennerly Drive +650 Price Mill Creek Tributary 1 At the confluence with Price Mill Creek +599 Unincorporated Areas of Union County, Town of Indian Trail. Approximately 100 feet upstream of Old Charlotte Highway +646 Price Mill Creek Tributary 2 At the confluence with Price Mill Creek +633 Town of Indian Trail. Approximately 1,400 feet upstream of the confluence with Price Mill Creek +646 Racoon Branch At the confluence with Buffalo Creek +573 Unincorporated Areas of Union County. Approximately 1.4 miles upstream of Trinity Church Road (SR 2166) +623 Rays Fork At the confluence with Richardson Creek +461 Unincorporated Areas of Union County, City of Monroe, Town of Wingate. Approximately 1,680 feet upstream of White Store Road (SR 1003) +607 Reason Branch At the confluence with Rocky River +362 Unincorporated Areas of Union County. Approximately 1.3 miles upstream of Morgan Academy Road (SR 1661) +461 Reedy Branch At the confluence with Beaverdam Creek +515 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of Camden Road (SR 1934) +554 Richardson Creek Approximately 650 feet downstream of the Anson/Union County boundary +294 Unincorporated Areas of Union County, City of Monroe. Approximately 2.0 miles upstream of Griffith Road (SR 2139) +635 Richardson Creek Tributary 1 At the confluence with Richardson Creek +377 Unincorporated Areas of Union County. Approximately 180 feet upstream of Dusty Lane (SR 1718) +394 Richardson Creek Tributary 2 At the confluence with Richardson Creek +377 Unincorporated Areas of Union County. Approximately 1,390 feet upstream of the confluence with Richardson Creek +399 Richardson Creek Tributary 3 At the confluence with Richardson Creek +382 Unincorporated Areas of Union County. Approximately 0.4 mile upstream of the confluence with Richardson Creek +397 Richardson Creek Tributary 4 At the confluence with Richardson Creek +384 Unincorporated Areas of Union County. Approximately 1,050 feet upstream of the confluence with Richardson Creek +395 Richardson Creek Tributary 5 At the confluence with Richardson Creek +403 Unincorporated Areas of Union County. Approximately 830 feet upstream of New Salem Road (SR 1627) +506 Richardson Creek Tributary 6 At the confluence with Richardson Creek +407 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of Tarlton Mill Road (SR 1649) +441 Richardson Creek Tributary 7 At the confluence with Richardson Creek +416 Unincorporated Areas of Union County. Approximately 1.2 miles upstream of the confluence with Richardson Creek +495 Richardson Creek Tributary A At the confluence with Richardson Creek +298 Unincorporated Areas of Union County. Approximately 850 feet upstream of Fish Road (SR 1706) +335 Robin Branch At the confluence with Booger Branch +522 Unincorporated Areas of Union County. Approximately 500 feet upstream of Shaw Avenue +568 Rocky River At the Anson/Stanly/Union County boundary +302 Unincorporated Areas of Union County, Town of Fairview. At the confluence of Clear Creek +469 Rocky River Tributary 5 At the confluence with Rocky River +306 Unincorporated Areas of Union County. Approximately 1.5 miles upstream of the confluence with Rocky River +364 Rocky River Tributary 6 At the confluence with Rocky River +329 Unincorporated Areas of Union County. Approximately 1,180 feet upstream of Old Kennedy Ford Road +400 Rocky River Tributary 7 At the confluence with Rocky River +343 Unincorporated Areas of Union County. Approximately 500 feet downstream of Old Kennedy Ford Road (SR 1711) +429 Rone Branch Approximately 200 feet downstream of the Lancaster County, South Carolina/Union County, North Carolina, State boundary +507 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of Rehobeth Road (State Route 1107) +591 Rone Branch Tributary 1 At the confluence with Rone Branch +515 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of the confluence with Rone Branch +560 Salem Creek At the confluence with Richardson Creek +387 Unincorporated Areas of Union County. Approximately 880 feet upstream of U.S. Highway 74 +519 Salem Creek Tributary 1 At the confluence with Salem Creek +465 Unincorporated Areas of Union County. Approximately 840 feet upstream of Angel Desse Road +516 Salem Creek Tributary 2 At the confluence with Salem Creek +472 Unincorporated Areas of Union County, Town of Marshville. Approximately 900 feet downstream of Austin Grove Church Road +510 Simpson Branch Approximately 500 feet upstream of the confluence with Cane Creek +502 Unincorporated Areas of Union County. Approximately 250 feet downstream of Huey Drive +518 Sixmile Creek At the Lancaster County, South Carolina/Mecklenburg and Union County, North Carolina, State boundary +575 Unincorporated Areas of Union County, Town of Weddington, Village of Marvin. Approximately 500 feet upstream of the Mecklenburg/Union County boundary +626 Sixmile Creek Tributary 1 At the confluence with Sixmile Creek +579 Unincorporated Areas of Union County, Village of Marvin. Approximately 920 feet upstream of Marvin Weddington Road (State Route 1316) +630 Sixmile Creek Tributary 2 At the confluence with Sixmile Creek +597 Unincorporated Areas of Union County. Approximately 1.2 miles upstream of the confluence with Sixmile Creek +633 Small Branch At the confluence with South Fork Crooked Creek +639 Town of Indian Trail. Approximately 270 feet upstream of Waxhaw-Indian Road +668 Small Drain At the confluence with Small Branch +657 Town of Indian Trail. Approximately 50 feet upstream of Unionville-Indian Trail Road +669 Smith Branch At the confluence with Grapevine Creek +415 Unincorporated Areas of Union County. Approximately 930 feet upstream of Marshville Olive Branch Road (SR 1719) +466 South Fork Crooked Creek At the confluence with Crooked Creek +570 Unincorporated Areas of Union County, City of Monroe, Town of Fairview, Town of Indian Trail, Town of Stallings, Town of Unionville. Approximately 1,900 feet upstream of Kelly Drive +759 South Fork Crooked Creek Tributary 1 At the confluence with South Fork Crooked Creek +574 Town of Unionville. Approximately 930 feet upstream of Unionville-Indian Trail Road +602 South Fork Crooked Creek Tributary 2 At the confluence with South Fork Crooked Creek +589 Unincorporated Areas of Union County. Approximately 900 feet upstream of Unionville-Indian Trail Road +603 South Fork Crooked Creek Tributary 3 At the confluence with South Fork Crooked Creek +614 Unincorporated Areas of Union County, Town of Indian Trail. Approximately 610 feet upstream of the railroad +640 South Fork Crooked Creek Tributary 4 Approximately 750 feet upstream of the confluence with South Fork Crooked Creek +623 Unincorporated Areas of Union County, Town of Indian Trail. Approximately 190 feet upstream of Sun Valley Drive +629 South Fork Crooked Creek Tributary 5 At the confluence with South Fork Crooked Creek +629 Town of Indian Trail, Village of Lake Park. Approximately 700 feet upstream of Brooktree Lane +638 South Fork Crooked Creek Tributary 5A At the confluence with South Fork Crooked Creek Tributary 5 +631 Town of Indian Trail, Village of Lake Park. Approximately 1,050 feet upstream of Lake Park Road +643 South Fork Crooked Creek Tributary 6 At the confluence with South Fork Crooked Creek +631 Town of Indian Trail. Approximately 0.4 mile upstream of Unionville-Indian Trail Road +640 Stegall Branch At the confluence with Richardson Creek +357 Unincorporated Areas of Union County. Approximately 1.1 miles upstream of the confluence with Richardson Creek +416 Stewart Branch At the confluence with Cane Creek Tributary 1 +562 Unincorporated Areas of Union County. Approximately 1,125 feet upstream of the dam +661 Stewart Branch Tributary 1 At the confluence with Stewart Branch +562 Unincorporated Areas of Union County. Approximately 250 feet downstream of Tom Green Road +607 Stewarts Creek At the confluence with Richardson Creek +454 Unincorporated Areas of Union County, City of Monroe. Approximately 280 feet downstream of Myers Road +625 Stewarts Creek Tributary 1 Approximately 1,000 feet upstream of the confluence with Stewarts Creek +526 City of Monroe. Approximately 650 feet upstream of Sunnybrook Drive +567 Stewarts Creek Tributary 2 Approximately 575 feet upstream of the confluence with Stewarts Creek +545 Unincorporated Areas of Union County, City of Monroe. Approximately 480 feet upstream of Rolling Hills Drive +561 Stewarts Creek Tributary 3 Approximately 550 feet upstream of the confluence with Stewarts Creek +549 City of Monroe. Approximately 230 feet downstream of Fox Hunt Drive +572 Stewarts Creek Tributary 4 Approximately 600 feet upstream of the confluence with Stewarts Creek +606 City of Monroe. Approximately 0.5 mile upstream of the confluence with Stewarts Creek +619 Still Branch At the confluence with Richardson Creek +514 City of Monroe. Approximately 0.5 mile upstream of the confluence with Richardson Creek +521 Stumplick Branch Approximately 250 feet upstream of the confluence with Stewarts Creek +507 Unincorporated Areas of Union County, Town of Unionville. Approximately 560 feet downstream of C. J. Thomas Road +596 Stumplick Branch Tributary 1 At the confluence with Stumplick Branch +573 Town of Unionville. Approximately 0.5 mile upstream of Hillcrest Church Road +600 Tarkill Branch At the Lancaster County, South Carolina/Union County, North Carolina, State boundary +545 Unincorporated Areas of Union County, Town of Weddington, Village of Marvin. Approximately 1.4 miles upstream of New Town Road +644 Twelvemile Creek Tributary 1 Approximately 500 feet upstream of the confluence with Twelvemile Creek +502 Unincorporated Areas of Union County, Town of Waxhaw. Approximately 0.5 mile upstream of Fox Hound Lane +537 Twelvemile Creek Tributary 2 Approximately 800 feet upstream of the confluence with Twelvemile Creek +504 Unincorporated Areas of Union County, Town of Waxhaw. Approximately 0.8 mile upstream of the confluence with Twelvemile Creek +523 Twelvemile Creek Tributary 3 Approximately 1,600 feet upstream of the confluence with Twelvemile Creek +507 Unincorporated Areas of Union County, Town of Waxhaw, Village of Marvin. Approximately 0.5 mile upstream of Rainbow Drive +558 Twelvemile Creek Tributary 4 Approximately 1,650 feet upstream of the confluence with Twelvemile Creek +508 Unincorporated Areas of Union County, Town of Waxhaw. Approximately 300 feet upstream of Waxhaw Parkway +574 Underwood Creek Approximately 1,500 feet upstream of the confluence with Little Twelvemile Creek +547 Unincorporated Areas of Union County. Approximately 0.8 mile upstream of New Town Road +619 Wallace Branch At the confluence with Little Brown Creek +393 Unincorporated Areas of Union County. Approximately 1.2 miles upstream of Cheraw Road (SR 1929) +496 Water Branch At the confluence with Richardson Creek +310 Unincorporated Areas of Union County. Approximately 0.8 mile upstream of NC Highway 218 +462 Water Branch Tributary 1 At the confluence with Water Branch +372 Unincorporated Areas of Union County. Approximately 0.5 mile upstream of the confluence with Water Branch +395 Watson Creek At the confluence with Richardson Creek +412 Unincorporated Areas of Union County. Approximately 1,410 feet upstream of Baucom Road +516 Waxhaw Branch At the confluence with Lanes Creek +456 Unincorporated Areas of Union County. Approximately 0.9 mile upstream of Synder Store Road (SR 1945) +593 Waxhaw Branch Tributary 1 At the confluence with Waxhaw Branch +505 Unincorporated Areas of Union County. Approximately 0.5 mile upstream of Edwards Road (SR 1943) +534 Waxhaw Creek Approximately 1,650 feet downstream of Maggie Robinson Road (State Route 1103) +487 Unincorporated Areas of Union County. Approximately 100 feet downstream of Lancaster Highway/State Highway 200 +609 Waxhaw Creek Tributary 1 At the confluence with Waxhaw Creek +491 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of Mini-Ranch Road (State Route 1102) +526 Waxhaw Creek Tributary 2 At the confluence with Waxhaw Creek +499 Unincorporated Areas of Union County. Approximately 2.8 miles upstream of the confluence with Waxhaw Creek +705 Waxhaw Creek Tributary 3 At the confluence with Waxhaw Creek +516 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of Winslow Drive +539 Waxhaw Creek Tributary 4 At the confluence with Waxhaw Creek +555 Unincorporated Areas of Union County. Approximately 1.4 miles upstream of Morrison Avenue +616 Waxhaw Creek Tributary 5 At the confluence with Waxhaw Creek +559 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of the confluence with Waxhaw Creek +597 Waxhaw Creek Tributary 6 At the confluence with Waxhaw Creek +560 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of the confluence with Waxhaw Creek +583 Waxhaw Creek Tributary 7 At the confluence with Waxhaw Creek +565 Unincorporated Areas of Union County. Approximately 1,750 feet upstream of the dam +658 Waxhaw Creek Tributary 7A At the confluence with Waxhaw Creek Tributary 7 +578 Unincorporated Areas of Union County. Approximately 0.4 mile upstream of Nesbit Road (State Route 1131) +609 Waxhaw Creek Tributary 7B At the confluence with Waxhaw Creek Tributary 7 +583 Unincorporated Areas of Union County. Approximately 0.6 mile upstream of the confluence with Waxhaw Creek Tributary 7 +610 Waxhaw Creek Tributary 7C At the confluence with Waxhaw Creek Tributary 7 +591 Unincorporated Areas of Union County, Town of Waxhaw. Approximately 0.5 mile upstream of Parkwood School Road +613 West Fork Twelvemile Creek At the upstream side of Cuthbertson Road (State Route 1321) +514 Unincorporated Areas of Union County, Village of Wesley Chapel, Town of Indian Trail, Town of Stallings, Town of Waxhaw, Town of Weddington. Approximately 1,070 feet upstream of the confluence of West Fork Twelvemile Creek Tributary 4 +680 West Fork Twelvemile Creek Tributary 1 At the confluence with West Fork Twelvemile Creek +526 Unincorporated Areas of Union County, Town of Waxhaw, Town of Weddington. Approximately 0.4 mile upstream of New Town Road (State Route 1315) +634 West Fork Twelvemile Creek Tributary 1A At the confluence with West Fork Twelvemile Creek Tributary 1 +536 Unincorporated Areas of Union County, Town of Waxhaw. Approximately 0.8 mile upstream of the confluence with West Fork Twelvemile Creek Tributary 1 +576 West Fork Twelvemile Creek Tributary 2 At the confluence with West Fork Twelvemile Creek +587 Unincorporated Areas of Union County, Town of Weddington. Approximately 700 feet upstream of the dam +681 West Fork Twelvemile Creek Tributary 2A At the confluence with West Fork Twelvemile Creek Tributary 2 +638 Town of Weddington. Approximately 1,790 feet upstream of the confluence with West Fork Twelvemile Creek Tributary 2 +653 West Fork Twelvemile Creek Tributary 2B At the confluence with West Fork Twelvemile Creek Tributary 2 +661 Town of Weddington. Approximately 960 feet upstream of the confluence with West Fork Twelvemile Creek Tributary 2 +673 West Fork Twelvemile Creek Tributary 3 At the confluence with West Fork Twelvemile Creek +657 Unincorporated Areas of Union County, Town of Indian Trail, Town of Stallings. Approximately 520 feet upstream of Fairforest Drive +684 West Fork Twelvemile Creek Tributary 4 At the confluence with West Fork Twelvemile Creek +672 Unincorporated Areas of Union County, Town of Indian Trail, Town of Stallings. At the Mecklenburg/Union County boundary +690 Wicker Branch At the confluence with Lanes Creek +475 Unincorporated Areas of Union County. Approximately 0.7 mile upstream of U.S. Highway 601 +597 Wide Mouth Branch At the Anson/Union County boundary +406 Unincorporated Areas of Union County. Approximately 510 feet upstream of Old Peachland Street (SR 1735) +493 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Monroe Maps are available for inspection at City of Monroe Planning Department, 300 West Crowell Street, Monroe, North Carolina. Town of Fairview Maps are available for inspection at Fairview Town Hall, 7608 Concord Highway, Monroe, North Carolina. Town of Hemby Bridge Maps are available for inspection at Hemby Bridge Town Hall, 5811 Fairview-Indian Trail Road, Hemby Bridge, North Carolina. Town of Indian Trail Maps are available for inspection at Indian Trail Planning Department, 109 Navejo Trail Road, Indian Trail, North Carolina. Town of Marshville Maps are available for inspection at Marshville Town Hall, 201 West Main Street, Marshville, North Carolina. Town of Mineral Springs Maps are available for inspection at Town of Mineral Springs Volunteer Fire and Rescue Department, 5804 Waxhaw Highway, Mineral Springs, North Carolina. Town of Stallings Maps are available for inspection at Stallings Town Hall, 315 Stallings Road, Stallings, North Carolina. Town of Unionville Maps are available for inspection at Unionville Town Hall, 1102 Unionville Church Road, Monroe, North Carolina. Town of Waxhaw Maps are available for inspection at Waxhaw Town Hall, 317 North Broome Street, Waxhaw, North Carolina. Town of Weddington Maps are available for inspection at Weddington Town Hall, 1924 Weddington Road, Weddington, North Carolina. Town of Wingate Maps are available for inspection at Wingate Town Hall, 3918 Highway 74 East, Wingate, North Carolina. Village of Lake Park Maps available for inspection at the Union County Planning Office, 407 North Main Street, Monroe, North Carolina. Village of Marvin Maps available for inspection at the Marvin Village Hall, 10004 New Town Road, Marvin, North Carolina. Village of Wesley Chapel Maps available for inspection at the Village of Wesley Chapel Town Hall, 1101 A Airport Road, Monroe, North Carolina. Unincorporated Areas of Union County Maps are available for inspection at Union County Planning Department, 407 North Main Street, Room 149, Monroe, North Carolina. (Catalog of Federal Domestic Assistance No. 97.022, “Flood Insurance.”) Dated: April 29, 2008. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E8-10114 Filed 5-6-08; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 Final Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Final rule. SUMMARY: Base (1% annual chance) Flood Elevations
(BFEs)and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The date of issuance of the Flood Insurance Rate Map
(FIRM)showing BFEs and modified BFEs for each community may be obtained by contacting the office where maps are available for inspection as indicated on the table below. ADDRESSES: The final BFEs for Imperial County are available for inspection at Imperial County Planning & Development Services Department, 801 West Main Street, El Centro, California 92243. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA)makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety
(90)days have elapsed since that publication. In proposed rule FR Doc. E7-18260 published on March 27, 2006 (71 FR 15115-15116), several modified elevations were not depicted as being located below sea level. The symbology for these elevations has been corrected and is shown in the table below. The Assistant Administrator of the Mitigation Directorate has resolved any appeals resulting from this notification. This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60. Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown. *National Environmental Policy Act* . This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act* . As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification* . This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This final rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This final rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.11 [Amended] 2. The tables published under the authority of § 67.11 are amended as follows: Flooding source(s) Location of referenced elevation *Elevation in feet
(NAVD)#Depth in feet above ground (−) Feet below sea level modified Communities affected Imperial County, California and Incorporated Areas Docket No.: FEMA-B-7456 Amerosa Wash Approximately 152 feet above confluence with Anza Ditch *(−)50 Imperial County (Unincorporated Areas). Approximately 2.75 miles above confluence with Anza Ditch *153 Anza Ditch Approximately 1694 feet downstream of Marina Drive *(−)224 Imperial County (Unincorporated Areas). Approximately 3.4 miles upstream of State Route 86 *136 Arroyo Salada Approximately 630 feet above confluence with Salton Sea *(−)223 Imperial County (Unincorporated Areas). Approximately 2.36 miles upstream of State Route 86 *(−)72 Colorado River Approximately 10.6 miles downstream of confluence with Gila River *121 Imperial County (Unincorporated Areas). Approximately 1.65 miles upstream of Neighbors Boulevard *243 Coolidge Springs Ditch Approximately 447 feet upstream of confluence with Salton Sea *(−)225 Imperial County (Unincorporated Areas). Approximately 0.69 mile upstream of confluence with Coolidge Tributary *(−)14 Coolidge Tributary Approximately 272 feet above confluence with Coolidge Springs Ditch *(−)192 Imperial County (Unincorporated Areas). Approximately 0.81 mile above confluence with Coolidge Springs Ditch *(−)97 Coral Wash Approximately 314 feet above confluence with Palm Wash *(−)187 Imperial County (Unincorporated Areas). Approximately 2.79 miles upstream of State Route 86 *72 Iberia Wash Approximately 296 feet above confluence with Salton Sea *(−)222 Imperial County (Unincorporated Areas). Approximately 1.89 miles upstream of State Route 86 *104 Incienso Ditch Approximately 450 feet above confluence with Salton Sea *(−)221 Imperial County (Unincorporated Areas). Approximately 1.86 miles upstream of State Route 86 *64 Gravel Wash Approximately 439 feet above confluence with Salton Sea *(−)222 Imperial County (Unincorporated Areas). Approximately 2.32 miles upstream of State Route 86 *51 Palm Wash Approximately 46 feet above confluence with Salton Sea *(−)224 Imperial County (Unincorporated Areas). Approximately 3.86 mile upstream of State Route 86 *150 Romney Ditch Approximately 1382 feet downstream of State Route 86 *(−)211 Imperial County (Unincorporated Areas). Approximately 1517 feet upstream of State Route 86 *(−)157 Shoreline Ditch Approximately 250 feet downstream of Thomas Avenue *(−)225 Imperial County (Unincorporated Areas). Approximately 0.50 mile upstream of Coolidge Springs Road *(−)94 Surprise Wash Approximately 656 feet above confluence with Tule Wash *(−)187 Imperial County (Unincorporated Areas). Approximately 1.2 miles upstream of State Route 86 *(−)89 Surprise Wash Tributary Approximately 500 feet above confluence with Surprise Wash *(−)151 Imperial County (Unincorporated Areas). Approximately 0.83 mile upstream of State Route 86 *(−)110 Surprise Wash Diversion Approximately 1610 feet above confluence with Arroyo Salada *(−)102 Imperial County (Unincorporated Areas). Approximately 2.24 miles above confluence with Arroyo Salada *(−)37 Tesla Wash Approximately 386 feet above confluence with Salton Sea *(−)222 Imperial County (Unincorporated Areas). Approximately 1.61 miles upstream of State Route 86 *39 Tortif Ditch Approximately 0.87 mile downstream of State Route 86 *(−)219 Imperial County (Unincorporated Areas). Approximately 1.92 miles upstream of State Route 86 *78 Verbena Wash Approximately 450 feet above confluence with Virgo Ditch *(−)186 Imperial County (Unincorporated Areas). Approximately 1.17 miles upstream of State Route 86 *2 Virgo Ditch Approximately 641 feet above confluence with Salton Sea *(−)222 Imperial County (Unincorporated Areas). Approximately 2.14 miles upstream of State Route 86 *95 Zenas Wash Approximately 637 feet above confluence with Arroyo Salada *(−)179 Imperial County (Unincorporated Areas). Approximately 0.59 mile upstream of State Route 86 *(−)88 Arroyo Salada Shallow Flooding—Approximately 1.38 miles above confluence with Salton Sea to Salton Sea #1 Imperial County (Unincorporated Areas). Calyx Ditch Shallow Flooding—State Route 86 to confluence with Salton Sea #1 Imperial County (Unincorporated Areas). Shallow Flooding—150 feet upstream of State Route 86 to State Route 86 #2 Farmosa Ditch Shallow Flooding—State Route 86 to confluence with Salton Sea #1 Imperial County (Unincorporated Areas). Parosa Ditch Shallow Flooding—State Route 86 to confluence with Salton Sea #1 Imperial County (Unincorporated Areas). Shallow Flooding—150 feet upstream of State Route 86 to State Route 86 #2 Salton Sea West shoreline of Salton Sea from approximately 0.78 miles southeast of confluence with Arroyo Salada to approximately 0.66 miles north of confluence with Shoreline Ditch *(−)224 Imperial County (Unincorporated Areas). Tonalee Ditch Shallow Flooding—1,000 feet upstream of State Route 86 to confluence with Salton Sea #1 Imperial County (Unincorporated Areas). * North American Vertical Datum. # Depth in feet above ground. (−) Feet below sea level. ADDRESSES Imperial County (Unincorporated Areas) Maps available for inspection at: Imperial County Planning & Development Services Department; 801 West Main Street, El Centro, California 92243 (Catalog of Federal Domestic Assistance No. 97.022, “Flood Insurance.”) Dated: April 29, 2008. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E8-10140 Filed 5-6-08; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Parts 101, 104, 105, and 106 46 CFR Parts 10, 12, and 15 Transportation Security Administration 49 CFR Part 1572 [Docket Nos. TSA-2006-24191; USCG-2006-24196] RIN 1652-AA41 Transportation Worker Identification Credential
(TWIC)Implementation in the Maritime Sector; Hazardous Materials Endorsement for a Commercial Driver's License AGENCY: United States Coast Guard, Transportation Security Administration; DHS. ACTION: Final rule; extension of compliance date. SUMMARY: The Department of Homeland Security (DHS), through the United States Coast Guard (Coast Guard) and the Transportation Security Administration (TSA), issues this final rule to realign the compliance date set forth in the Transportation Worker Identification Credential
(TWIC)final rule. Under the new final compliance date mariners must obtain a TWIC no later than April 15, 2009. This final rule also extends to April 15, 2009, the final date by which owners and operators of vessels, facilities, and outer continental shelf facilities, who have not otherwise been required to implement access control procedures utilizing TWIC on an earlier date, must implement those procedures. DATES: This final rule is effective May 7, 2008. ADDRESSES: Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of dockets TSA-2006-24191 and USCG-2006-24196, and are available for inspection or copying at the Docket Management Facility, 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. You may also find this docket on the Internet at *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: If you have questions on the TSA portions of this rule, call Christine Beyer, telephone
(571)227-2657. If you have questions on the Coast Guard portions of this rule, call LCDR Jonathan Maiorine, telephone 1-877-687-2243. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-493-0402. SUPPLEMENTARY INFORMATION: I. Background and Regulatory History On May 22, 2006, the Department of Homeland Security
(DHS)through the United States Coast Guard (Coast Guard) and the Transportation Security Administration
(TSA)published a joint notice of proposed rulemaking
(NPRM)entitled “Transportation Worker Identification Credential
(TWIC)Implementation in the Maritime Sector; Hazardous Materials Endorsement for a Commercial Driver's License” in the **Federal Register** (71 FR 29396) (hereinafter referred to as the “TWIC NPRM”). The TWIC NPRM proposed requirements related to the TWIC program, including compliance dates for mariners to obtain and possess a TWIC, and for vessels, facilities and outer continental shelf facilities to operate in accordance with TWIC provisions. Specifically, DHS proposed that vessels and facilities would be required to be in compliance with the requirements of a TWIC final rule between twelve
(12)and eighteen
(18)months following the publication date of the final rule, depending on whether enrollment for the port in which the vessel or facility is operating had been completed. 71 FR at 29409, 29412. On January 25, 2007, after a 45-day comment period and four public meetings, the Coast Guard and TSA published a joint final rule under the same title (72 FR 3492) (hereinafter referred to as the “TWIC joint final rule”). The TWIC joint final rule discussed the comments received on the proposed rule, including a discussion of all comments related to the proposed TWIC implementation timeline and the requirements for mariners, vessels, facilities and outer continental shelf facilities to comply with TWIC procedures. It also made changes to the rule text in response to those comments. The TWIC joint final rule, at 33 CFR 104.115, revised the compliance dates for vessel owners and operators to provide vessel owners or operators 20 months from the publication date of the final rule, up to and including September 25, 2008, to implement the TWIC access control provisions. 72 FR 3492, 3499. The rule tied the compliance date for facilities and outer continental shelf facilities to completion of the initial enrollment in the Captain of the Port
(COTP)zone where the facility is located. *See* 33 CFR 105.115 and 106.110. This date would vary for each COTP zone as announced by the Coast Guard through publication of a notice in the **Federal Register** . Under the final rule, the Coast Guard would publish these notices at least 90 days in advance of the compliance date, but the final compliance date for all COTPs would not be later than September 25, 2008. Finally, the latest date by which mariners would be expected to obtain and possess a TWIC, as set forth in 33 CFR 101.514, would also be September 25, 2008. 72 FR at 3499. II. Discussion of Change With this final rule, DHS is realigning the deadline for final compliance with the requirements of the TWIC final rule to provide 18 months from the date the initial enrollment centers became operational for regulated entities to come into compliance with the requirements of the TWIC final rule. As discussed above, when DHS set the final compliance date by the final rule published in January of 2007, the Coast Guard and TSA estimated that all TWIC enrollment centers would be operational within 18 months of the beginning of the enrollment rollout. See 72 FR at 3539. Accordingly, the Coast Guard and TSA set the final compliance date for vessels for 20 months after the publication date of the final rule to allow TSA two months to finalize a contract with the entity that would operate the enrollment centers, as well as to ensure that the underlying TWIC system could operate as intended. This schedule was intended to allow mariners and other regulated entities up to 18 months to enroll before the September 25, 2008 compliance date. TSA contracted with Lockheed Martin to operate TWIC enrollment centers on January 29, 2007. The first TWIC enrollment center opened in Wilmington, Delaware on October 16, 2007. See 72 FR 57342 (Oct. 9, 2007). Since that time, TSA has opened over 100 TWIC enrollment centers. TSA currently estimates that the final enrollment centers will be opened and operational in September of 2008. Because TSA did not open the initial enrollment centers until approximately six months after the initial estimated start date, TSA and Coast Guard have provided the additional time to allow for the full 18 months of enrollment intended under the TWIC final rule. Accordingly, to ensure that every individual who requires a TWIC will have the opportunity to enroll for one, and to ensure that TSA will have time to complete the security threat assessments on all applicants, DHS is extending the compliance date from September 25, 2008 to April 15, 2009, to realign the final compliance date with the original intent of the TWIC final rule. Under this final rule, by no later than April 15, 2009, mariners must obtain a TWIC, and owners and operators of vessels, facilities, and outer continental shelf facilities, who have not otherwise been required to implement access control procedures utilizing TWIC, must implement those procedures. Owners and operators of facilities that must comply with 33 CFR part 105 will still be subject to earlier, rolling compliance dates, as laid out in 33 CFR 105.115(e). As provided in that regulation, the Coast Guard will announce those dates at least 90 days in advance via notices published in the **Federal Register** . The final compliance date will not be later than April 15, 2009. In a separate notice published in today's edition of the **Federal Register** , we provide this notice for the first three COTP Zones: Boston, Northern New England, and Southeastern New England. The TWIC final rule also did not require that mariners obtain or possess a TWIC for access to secure areas of vessels, facilities, and OSC facilities until September 25, 2008. With this amendment, mariners holding a Merchant Mariner's License (License), Merchant Mariner's Document (MMD), Certificate of Registry, or an International Convention on Standards of Training, Certification and Watchkeeping for Seafarers
(STCW)Endorsement, will not need to have a TWIC until April 15, 2009. Until that date, they may continue to use their mariner credentials, along with a photo ID, to gain unescorted access to facilities and vessels, per 33 CFR 101.514. Amendments in 46 CFR 10.113, 12.01-11, and 15.415 will also reflect the date change to April 15, 2009. Additionally, owners and operators of vessels and outer continental shelf facilities regulated by 33 CFR parts 104 and 106, respectively, will not need to incorporate TWIC into their security measures for access control until April 15, 2009. Finally, the applicable dates for mariners wishing to purchase a reduced fee TWIC, by relying upon the security threat assessment done by the Coast Guard when they applied for their License or their MMD have been realigned to cover those mariners who obtain or renew their credential between September 25, 2008 and April 15, 2009. These amendments may be found at 33 CFR 101.514, 104.115, 105.115, 106.110; 46 CR 10.113, 12.01-11, and 15.415; and 49 CFR 1572.19. III. Regulatory Requirements A. Administrative Procedure Act DHS is issuing this final rule, for immediate implementation, without providing the public prior notice and the opportunity for comment. Sections 553(b) and
(d)of the Administrative Procedure Act
(APA)(5 U.S.C. 553) authorize agencies to dispense with certain notice procedures for rules when they find good cause to do so. Under section 553(b), the requirements of notice and opportunity for comment do not apply when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Section 553(d) allows an agency, upon finding good cause, to make a rule effective immediately upon publication in the **Federal Register** . Providing an opportunity for prior notice and public comment on the extensions of the compliance dates in the TWIC final rule would be unnecessary and contrary to the public interest. As discussed above, without the change in the full compliance date, it would not be possible for all regulated parties to comply with the TWIC regulations. Even if it were possible for all persons to enroll by the current compliance date (which, as noted above, is not realistically possible), it would not be possible for TSA to complete full security threat assessments on all of those individuals in advance of the September 25, 2008 date. Further, because this final rule relieves a restriction by providing regulated entities more time to comply with the regulatory requirements, DHS finds that this rule shall become effective immediately upon publication of this final rule in the **Federal Register** . 5 U.S.C. 553(d). B. Executive Order 12866 (Regulatory Planning and Review) This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866. This rule, therefore, is not subject to review by the Office of Management and Budget. We expect the economic impact of this rule to be minimal and a full regulatory analysis unnecessary. This rule realigns the final compliance date for implementing TWIC. To the extent that deadlines have changed, affected parties may incur some TWIC-related costs later rather than sooner. We anticipate that these changes will not substantially increase TWIC-related compliance costs to the affected entities and in most cases will provide advantages through deadline extensions. C. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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. We do not expect this rule to substantially increase TWIC-related compliance costs, as it realigns a deadline. The Coast Guard and TSA certify under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities. D. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). E. 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). F. 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. G. 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. H. 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. I. 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. J. 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 does not create an environmental risk to health or risk to safety that may disproportionately affect children. K. 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. L. 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. M. 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. N. Environment The provisions of this rule have been analyzed under the Department of Homeland Security
(DHS)Management Directive
(MD)5100.1, Environmental Planning Program, which is the DHS policy and procedures for implementing the National Environmental Policy Act (NEPA), and related Executive Orders and requirements. The changes being made by this final rule have no effect on the environmental analysis that accompanied the promulgation of the original TWIC final rule. That analysis can be found at 72 FR 3576-3577. Accordingly, there are no extraordinary circumstances presented by this rule that would limit the use of a CATEX under MD 5100.1, Appendix A, paragraph 3.2. The implementation of this rule, like the implementation of the original TWIC final rule, is categorically excluded under the following categorical exclusions (CATEX) listed in MD 5100.1, Appendix A, Table 1: CATEX A1 (personnel, fiscal, management and administrative activities); CATEX A3 (promulgation of rules, issuance of rulings or interpretations); and CATEX A4 (information gathering, data analysis and processing, information dissemination, review, interpretation and development of documents). CATEX B3 (proposed activities and operations to be conducted in an existing structure that would be compatible with and similar in scope to ongoing functional uses) and CATEX B 11 (routine monitoring and surveillance activities that support law enforcement or homeland security and defense operations) would also be applicable. List of Subjects 33 CFR Part 101 Harbors, Maritime security, Reporting and recordkeeping requirements, Security measures, Vessels, Waterways. 33 CFR Part 104 Incorporation by reference, Maritime security, Reporting and recordkeeping requirements, Security measures, Vessels. 33 CFR Part 105 Facilities, Maritime security, Reporting and recordkeeping requirements, Security measures. 33 CFR Part 106 Facilities, Maritime security, Outer Continental Shelf, Reporting and recordkeeping requirements, Security measures. 46 CFR Part 10 Penalties, Reporting and recordkeeping requirements, Schools, Seamen. 46 CFR Part 12 Penalties, Reporting and recordkeeping requirements, Seamen. 46 CFR Part 15 Reporting and recordkeeping requirements, Seamen, Vessels. 49 CFR Part 1572 Appeals, Commercial drivers license, Criminal history background checks, Explosives, Facilities, Hazardous materials, Incorporation by reference, Maritime security, Motor carriers, Motor vehicle carriers, Ports, Seamen, Security measures, Security threat assessment, Vessels, Waivers. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 101, 104, 105, and 106, and 46 CFR parts 10, 12, and 15 and the Transportation Security Administration amends 49 CFR part 1572 as follows: Title 33—Navigation and Navigable Waters CHAPTER I—COAST GUARD PART 101—MARITIME SECURITY: GENERAL 1. The authority citation for part 101 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 192; Executive Order 12656, 3 CFR 1988 Comp., p. 585; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.1. § 101.514 [Revised] 2. Revise § 101.514(e) by removing the date “September 25, 2008” and adding in its place the date “April 15, 2009”. PART 104—MARITIME SECURITY: VESSELS 3. The authority citation for part 104 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.1. § 104.115 [Revised] 4. Revise § 104.115(d) by removing the date “September 25, 2008” and adding in its place the date “April 15, 2009”. PART 105—MARITIME SECURITY: FACILITIES 5. The authority citation for part 105 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 70103; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.1. § 105.115 [Revised] 6. Revise § 105.115(e) by removing the date “September 25, 2008” and adding in its place the date “April 15, 2009”. PART 106—MARITIME SECURITY: OUTER CONTINENTAL SHELF
(OCS)FACILITIES 7. The authority citation for part 106 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department Of Homeland Security Delegation No. 0170.1. § 106.110 [Revised] 8. Revise § 106.110(e) by removing the date “September 25, 2008” and adding in its place the date “April 15, 2009”. Title 46—Shipping CHAPTER I—COAST GUARD Subchapter B—Merchant Marine Officers and Seamen PART 10—LICENSING OF MARITIME PERSONNEL 9. The authority citation for part 10 continues to read as follows: Authority: 14 U.S.C. 633; 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, and 2110; 46 U.S.C. chapter 71; 46 U.S.C. 7502, 7505, 7701, and 8906; Executive Order 10173; Department of Homeland Security Delegation No. 0170.1. Section 10.107 is also issued under the authority of 44 U.S.C. 3507. § 10.113 [Revised] 10. Revise § 10.113 by removing the date “September 25, 2008” and adding in its place the date “April 15, 2009”. PART 12—CERTIFICATION OF SEAMEN 11. The authority citation for part 12 continues to read as follows: Authority: 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7301, 7302, 7503, 7505, 7701, and 70105; Department of Homeland Security Delegation No. 0170.1. § 12.01-11 [Revised] 12. Revise § 12.01-11 by removing the date “September 25, 2008” and adding in its place the date “April 15, 2009”. PART 15—MANNING REQUIREMENTS 13. The authority citation for part 15 continues to read as follows: Authority: 46 U.S.C. 2101, 2103, 3306, 3703, 8101, 8102, 8104, 8105, 8301, 8304, 8502, 8503, 8701, 8702, 8901, 8902, 8903, 8904, 8905(b), 8906, 9102, and 8103; and Department of Homeland Security Delegation No. 0170.1. § 15.415 [Revised] 14. Revise § 15.415 by removing the date “September 25, 2008” and adding in its place the date “April 15, 2009”. Title 49—Transportation CHAPTER XII—TRANSPORTATION SECURITY ADMINISTRATION Subchapter D—Maritime and Land Transportation Security PART 1572—CREDENTIALING AND SECURITY THREAT ASSESSMENTS 15. The authority citation for part 1572 continues to read as follows: Authority: 46 U.S.C. 70105; 49 U.S.C. 114, 5103a, 40113, and 46105; 18 U.S.C. 842, 845; 6 U.S.C. 469. § 1572.19 [Revised] 16. Revise § 1572.19(b) by removing the date “September 25, 2008” in the two places where it appears, and adding in each place the date “April 15, 2009”. Dated: May 2, 2008. Brian M. Salerno, Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety, Security & Stewardship. Gale Rossides, Deputy Administrator, Transportation Security Administration. [FR Doc. E8-10232 Filed 5-6-08; 8:45 am] BILLING CODE 4910-15-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 0, 20, 68 [WT Docket No. 07-250; FCC 08-68; FCC 08-117] Hearing Aid-Compatible Mobile Handsets, Petition of American National Standards Institute Accredited Standards Committee C63
(EMC)ANSI ASC C63 TM AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Federal Communications Commission (Commission) adopts various proposals to amend its hearing aid compatibility policies and requirements pertaining to wireless services, including modifications and other requirements along the framework proposed in a consensus plan (Joint Consensus Plan) developed jointly by industry and representatives for the deaf and hard of hearing community. The Commission anticipates that these rule changes, taken together and largely supported by manufacturers, service providers, and consumers with hearing loss, will meet statutory obligations to ensure reasonable access to telephone service by persons with impaired hearing. These requirements are intended to benefit wireless users in the deaf and hard of hearing community, including the most disadvantaged who are more likely to rely on telecoil-equipped hearing aids, as well as to ensure that these consumers have a variety of handsets available to them, including handsets with innovative features. DATES: Effective June 6, 2008, except for §§ 20.19(f)(2), 20.19(h), and 20.19(i) which contains information collection requirements that are not effective until approved by the Office of Management and Budget. The Commission will publish a document in the **Federal Register** announcing the effective date for those sections. The Commission will send a copy of the *First Report & Order* and *Order on Reconsideration and Erratum* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of June 6, 2008. Public and agency comments on Information Collection Requirements are due on or before July 7, 2008. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. In addition to filing comments with the Office of the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Judith Boley, Federal Communications Commission, Room 1-B441, 445 12th Street, SW., Washington, DC 20554, or via the Internet to *PRA@fcc.gov.* FOR FURTHER INFORMATION CONTACT: Thomas McCudden, Room 6118, Michael Rowan, Room 6603, or Peter Trachtenberg, Spectrum & Competition Policy Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, SW., Portals I, Room 6119, Washington, DC 20554. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Judith Boley,
(202)418-0214, or via the Internet at *PRA@fcc.gov.* SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *First Report & Order (R&O)* in WT Docket No. 07-250 released February 28, 2008, and the Commission's *Order on Reconsideration and Erratum (Recon)* in WT Docket No. 07-250 released April 17, 2008. The complete text of the *R&O* and *Recon* are available for public inspection and copying from 8 a.m. to 4:30 p.m. Monday through Thursday or from 8 a.m. to 11:30 a.m. on Friday at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. [The *R&O* and *Recon* may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300, facsimile 202-488-5563, or you may contact BCPI at its Web site: *http://www.BCPIWEB.com.* When ordering documents from BCPI, please provide the appropriate FCC document number, FCC 08-68 for the *R&O,* and FCC 08-117 for the *Recon.* The *R&O* and *Recon* are also available on the Internet at the Commission's Web site through its Electronic Document Management System (EDOCS): *http://hraunfoss.fcc.gov/edocs_public/SilverStream/Pages/edocs.html* .] Paperwork Reduction Act of 1995 Analysis This document contains new and modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget
(OMB)for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” In this present document, the Commission has assessed the effects of the reporting requirements that it has imposed on manufacturers and service providers, and finds that the information required should be readily available even to businesses with fewer than 25 employees, and that it is important to obtain this information in order to monitor compliance with the hearing aid compatibility requirements and to provide consumers with adequate information regarding the handsets available from particular service providers. Similarly, the Commission has assessed the effects of requiring manufacturers and service providers to post certain information regarding the hearing aid-compatible handsets they offer on their Web sites. The Commission notes that this requirement would apply only to entities that maintain a public Web site and is further subject to the *de minimis* exception. Both restrictions should limit, to some extent, the application of the requirement to small businesses with fewer than 25 employees. Moreover, the Commission has concluded that maintaining the limited information required, primarily a list of currently offered hearing aid-compatible handsets along with the associated ratings, will not be unduly burdensome, and that this requirement will significantly benefit consumers by ensuring convenient access to up-to-date information regarding compliant handset availability. Finally, the Commission has determined that requiring manufacturers to provide hearing aid compatibility contact information directly to the Commission will impose little if any additional burden on businesses with fewer than 25 employees. This requirement may even decrease these burdens, to the extent that it will allow consumers wishing to file a complaint to obtain that information from the Commission's Web site rather than contacting the Administrative Council for Terminal Attachment to obtain it from the service provider. Public and agency comments on Information Collection Requirements are due on or before July 7, 2008. Comments should address:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;
(b)the accuracy of the Commission's burden estimates;
(c)ways to enhance the quality, utility, and clarity of the information collected; and
(d)ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198 ( *see* 44 U.S.C. 3506(c)(4)), the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” The Commission notes, however, that section 213 of the Consolidated Appropriations Act 2000, Public Law 106-113, provides that rules governing frequencies in the 746-806 MHz Band become effective immediately upon publication in the **Federal Register** without regard to certain sections of the Paperwork Reduction Act. The Commission is therefore not inviting comment on any information collections that concern frequencies in the 746-806 MHz Band. I. Introduction 1. In the *R&O,* the Commission revises the hearing aid compatibility requirements applicable to providers of public mobile services and manufacturers of digital wireless handsets used in the delivery of those services. Specifically, the Commission adopts benchmark requirements for future deployment of hearing aid-compatible handsets, and related requirements, based on the proposals in a Joint Consensus Plan developed by an Alliance for Telecommunications Industry Solutions
(ATIS)working group that included nationwide (Tier I) carriers, handset manufacturers, and several organizations representing the interests of consumers with hearing loss. The Commission also adopts certain other rule changes to better promote the accessibility of hearing aid-compatible handsets to deaf and hard of hearing consumers, including rules for the approval of future versions of the hearing aid compatibility technical standard. In the *Recon,* the Commission revises the procedures adopted in the *R&O* for approval of the use of future versions of the hearing aid compatibility technical standard that do not raise major compliance issues. The Commission intends to address other issues raised in its *Notice of Proposed Rulemaking (NPRM),* 72 FR 65494, November 21, 2007, in this proceeding but not addressed here in a subsequent report and order. 2. As a preliminary matter, the Commission takes this opportunity to express its deep appreciation for the efforts of the many parties involved in the development of the Joint Consensus Plan, whose recommendations the Commission substantially adopts today. The broad support for the Plan among both industry and consumer advocacy groups, as reflected in the record of this proceeding, testifies to the success of the proffered proposals in meeting the goals of the Hearing Aid Compatibility Act, and in addressing the concerns of manufacturers and service providers while still advancing the interests of consumers with hearing loss in having greater access to advanced digital wireless communications. The Commission strongly encourages the wireless industry, including new entrants, and consumer groups to continue their collaborative efforts in order to ensure the successful implementation of the measures adopted. 3. The changes the Commission adopts to the handset deployment requirements include
(1)modifying the requirement, presently stayed until April 18, 2008, that manufacturers and service providers ensure that 50 percent of their digital wireless handset models meet established standards for radio frequency
(RF)interference reduction, and
(2)increasing the obligation on manufacturers and service providers to offer handset models that meet an established standard for inductive coupling capability. The Commission adopts a handset “refresh” requirement for manufacturers, obligating manufacturers to ensure annually that a certain percentage of their hearing aid-compatible handset models are newly issued that year, and it requires service providers to offer hearing aid-compatible handsets with different levels of functionality. 4. In addition to these modifications to the handset deployment requirements, the Commission adopts an updated version of the technical standard for measuring hearing aid compatibility in both acoustic coupling and inductive coupling modes, provides a phase-in period for its application as the exclusive standard, and creates a streamlined mechanism for adopting future revisions of the standard. Because the Commission finds that the established technical standard, including the most recent version of that standard adopted, provides tests for measuring hearing aid compatibility for wireless services operating over a broader range of frequencies than is currently subject to hearing aid compatibility requirements, the Commission extends the scope of these requirements to the full range of frequencies covered by the established standard. To assist the Commission in monitoring the implementation of the new requirements and to provide information to the public, the Commission also requires manufacturers and service providers to continue to file annual reports on the status of their compliance with these requirements, and the Commission requires manufacturers and service providers to publish up-to-date information on their Web sites regarding their hearing aid-compatible handset models. 5. The Commission anticipates that these inter-related changes, taken together and largely supported by manufacturers, service providers, and consumers with hearing loss, will further “ensure reasonable access to telephone service by persons with impaired hearing” as required by the Communications Act. 47 U.S.C. 610(a). The increased requirements to offer handsets with inductive coupling capability will particularly benefit the most disadvantaged wireless users in the deaf and hard of hearing community, who are more likely to rely on telecoil-equipped hearing aids. The Commission also anticipates that the requirements that manufacturers refresh their products annually and that service providers offer handset models at differing functionality levels will help to ensure that consumers with hearing loss have a variety of handsets available to them, including handsets with innovative features, a goal that the Commission has sought to encourage since 2003. At the same time, the Commission concludes that the level of obligations and the flexibility provided in the new benchmarks satisfy its obligation to “ensure that regulations adopted to implement [the Hearing Aid Compatibility Act] encourage the use of currently available technology and do not discourage or impair the development of improved technology.” 47 U.S.C. 610(e). In particular, these changes help to resolve the technical issues that have been raised regarding the difficulty of producing a wide variety of Global System for Mobile Communications
(GSM)handsets that both meet the requisite rating for acoustic coupling capability and include certain popular features, and thereby ensure that the impact of the rules remains as technology-impartial as possible while also ensuring the availability of hearing aid-compatible handsets to consumers. II. Background 6. Comments were due December 21, 2007, and reply comments were due January 7, 2008. The Commission received 19 comments and 16 reply comments. Comments came from a wide range of interests, including handset manufacturers, national, regional and small service providers, hearing loss advocacy groups, retail interests, and hearing aid manufacturers. While commenters generally support adoption of the Joint Consensus Plan, the record reveals differences regarding certain aspects of its implementation, as well as issues that are not addressed in the Plan. III. Discussion A. Hearing Aid-Compatible Handset Deployment Requirements 7. In order to promote its objective of furthering the availability of hearing aid-compatible handsets to the deaf and hard-of-hearing community, the Commission adopts several interrelated benchmarks, deadlines, and other requirements governing the deployment of hearing aid-compatible handsets. These actions, which are based largely on the Joint Consensus Plan and the proposals in the *NPRM,* balance several different approaches to improving wireless services for deaf and hard-of-hearing consumers. Based on the record, the Commission concludes that these requirements, as a whole, will offer great benefits to those consumers with hearing loss, without imposing undue costs on handset manufacturers, service providers, or consumers generally. 8. As proposed in the Joint Consensus Plan and the *NPRM,* the Commission first adopts new benchmarks and deadlines for 2008 through 2011 regarding deployment of handsets rated M3 (or higher) under American National Standards Institute
(ANSI)Standard C63.19 for RF interference reduction and handsets rated T3 (or higher) under ANSI Standard C63.19 for inductive coupling capability. As regards the requirements for RF interference reduction, the Commission recognizes the difficulties that handset manufacturers and service providers with large product lines face with respect to the 50 percent benchmark originally scheduled to go into effect on February 18, 2008, and the Commission modifies the benchmark in the near term while at the same time ensuring that consumers will have significant and increasing choices of acoustic coupling-compatible models over the next several years. At the same time, the Commission increases the upcoming benchmarks for handset models that have inductive coupling capability. In this regard, to ensure that all consumers will have options regardless of where they reside or from which carrier they obtain service, the Commission adopts the same deployment benchmarks for all service providers, although the Commission extends the compliance deadlines for service providers other than Tier I carriers in recognition of their more limited handset options and their difficulty obtaining the newest offerings. Second, as an integral part of the handset deployment objectives the Commission sets forth, the Commission adopts requirements to ensure the availability of not just more handset models, but also a range of compatible handset models throughout the manufacturer-to-consumer supply and distribution channels. The Commission thus requires all manufacturers to “refresh” their hearing aid-compatible handset product offerings annually, and all service providers to offer consumers handset models with differing levels of functionality. Third, the Commission addresses several implementation issues, including the definition of what constitutes a distinct model, the treatment of handset models that operate over multiple frequency bands and/or air interfaces, and the application of the *de minimis* rule. Finally, while the Commission encourages manufacturers and service providers, including new entrants, to deploy handset models that meet the higher hearing aid compatibility standards denoted by M4 and T4 ratings, the Commission determines consistent with the record not to adopt any requirements in this regard at this time. 1. M3 / T3 Standards 9. The parties in this proceeding are nearly unanimous in supporting the *NPRM's* tentative conclusions on the appropriate M3 and T3 benchmarks and deadlines insofar as they apply to manufacturers and Tier I carriers offering nationwide services, referencing the compromise and agreement that culminated in the Joint Consensus Plan. However, six commenting parties representing regional or smaller service providers that are not Tier I carriers—MetroPCS Communications, Inc. (MetroPCS), SouthernLINC Wireless (SouthernLINC), Virgin Mobile, USA, L.P. (Virgin Mobile), Rural Cellular Association (RCA), Chinook Wireless (Chinook), and Iowa Wireless Services, LLC (i wireless)—argue that they should not be subject to the same benchmarks or any new requirements beyond the existing mandates to offer two M3- and T3-rated (or higher) handset models per air interface. If any new requirements must apply, they argue that the benchmarks in these provisions should be reduced, proposing levels that would be approximately one-half of the Tier I levels. These commenters state that they would be forced to reduce their total product lines in order to meet the Tier I percentage benchmarks. They further contend that they have less access to hearing aid-compatible handsets than Tier I carriers, and that as a practical matter they would essentially be subject to more difficult requirements than Tier I carriers under the Joint Consensus Plan. On the other side of this issue, two advocates for the deaf and hard-of-hearing disagree, and argue that these service providers should be held to the same compatible handset deployment benchmarks as Tier I carriers because, with proper planning, these service providers can meet these benchmarks in the same, or perhaps slightly extended, timeframes. 10. For both RF interference reduction and inductive coupling capability, the Commission adopts the tentative conclusions in the *NPRM* for manufacturers and Tier I carriers, and hereby amends § 20.19(c) and
(d)of the Commission's rules to adopt the benchmarks and deadlines proposed in the *NPRM* . For service providers that are not Tier I carriers, the Commission adopts these same benchmarks, but the Commission extends their deadlines for compliance by three months in order to afford these entities additional flexibility to obtain and deploy the requisite numbers of compatible handset models. In consideration of the need for certainty, and in order to provide appropriate notification to manufacturers and service providers as regards the hearing aid compatibility obligations, the Commission had stayed enforcement of the 50 percent benchmark for deployment of handsets meeting an M3 (or higher) rating for RF interference reduction that would have become effective on February 18, 2008, for 60 days, until April 18, 2008. However, given the rule changes adopted in the *R&O* , the need for a stay is moot and it need not be extended. 11. In terms of RF interference reduction for acoustic coupling compatibility, manufacturers as of the effective date of this rule will have to meet a rating of M3 (or higher) for a minimum of one-third of their non- *de minimis* portfolio models offered to service providers per air interface in the United States. If one-third of the total number of models offered over an air interface is a fraction, manufacturers may round this number down, except that manufacturers offering four or five handset models over an air interface must offer at least two models meeting an M3 (or higher) rating. Tier I carriers, as of the effective date of this rule, will have to meet an M3 rating (or higher) for the lesser of 50 percent of their handset models per air interface (rounding fractions up) or a specific number of handset models pursuant to a schedule. For both manufacturers and service providers, these percentage and numerical obligations will remain in effect until such time as they may be changed by future Commission rulemaking action. This schedule requires Tier I carriers to provide an increasing number of handset models per air interface over which they offer service by future dates as follows: Before February 15, 2009: eight M3-rated (or higher) handset models; beginning February 15, 2009: nine M3-rated (or higher) handset models; and beginning February 15, 2010: ten M3-rated (or higher) handset models. The Joint Consensus Plan proposed that these and other deadlines would fall on the 18th of the month. For ease of administration, the Commission changes these deadlines to the 15th. Service providers not in Tier I will be subject to the same requirements, but only beginning three months after the effective date of the rules. As a result, the aforementioned requirements will take effect for such service providers as of May 15 of the respective year, rather than February 15. The Commission notes that under the revisions that it is adopting to § 20.19 of the Commission's rules, these service providers remain required to offer two handset models per air interface rated M3 or higher until the new requirements become effective to them. 12. With respect to inductive coupling capability, the new requirements establish benchmarks for both manufacturers and service providers that combine percentage and numerical measures. For both manufacturers and service providers, these percentage and numerical obligations will remain in effect until such time as they may be changed by future Commission rulemaking action. First, manufacturers will be required to meet the greater of two measures for each air interface for which they offer handsets beginning February 15, 2009:
(1)A minimum of two T3-rated (or higher) models for each air interface for which the manufacturer offers four or more handset models to service providers; or
(2)at least 20 percent / 25 percent / one-third of models that the manufacturer offers to service providers over each air interface rated T3 (or higher) beginning February 15, 2009 / 2010 / 2011 respectively. These percentage calculations will be rounded down to the nearest whole number in determining the minimum number of handsets to be produced. Each manufacturer that is not subject to the *de minimis* exception (discussed later in this summary) will thus still be required to maintain production of at least two or more T3-rated (or higher) handset models per air interface for which it offers handsets. Prior to February 15, 2009, manufacturers remain subject to the current requirement to offer at least two models rated T3 or higher per air interface. 13. Second, as of the effective date of this rule, Tier I carriers must meet the lesser of the two following measures for each air interface over which they offer service:
(1)One-third of digital wireless handset models are T3-rated (or higher) (rounding fractions up); or
(2)a schedule as follows: before February 15, 2009: three T3-rated (or higher) handsets; beginning February 15, 2009: five T3-rated (or higher) handsets; beginning February 15, 2010: seven T3-rated (or higher) handsets; and beginning February 15, 2011: ten T3-rated (or higher) handsets. 14. Third, service providers other than Tier I carriers will also be required to meet the same benchmarks as Tier I carriers, but only beginning three months after the effective date of these rules. Again, the scheduled rollout dates will be May 15 of the respective years, rather than February 15. The Commission notes that under the revisions that it is adopting to § 20.19, these service providers remain required to offer two handset models per air interface rated T3 or higher until the new requirements become effective to them. 15. Given the unanimous support in the record, the Commission finds that these benchmarks for both equipment manufacturers and Tier I carriers to deploy M3-rated and T3-rated handsets are in the public interest. The combination, two-option approach for deploying M3-rated handsets provides needed flexibility for Tier I carriers with large product lines to deploy new and additional models over time while still ensuring that substantial numbers of compatible handset models will be available to consumers. These rule changes are supported by consumer advocates, and the Commission agrees that the balance they achieved with industry representatives in the Joint Consensus Plan represents a beneficial compromise between technological constraints and the needs of hard-of-hearing consumers. No commenting party has argued that these benchmarks for manufacturers and Tier I carriers would be detrimental to consumers. This approach also is more technology-impartial than a single 50 percent requirement, reflecting the uncontroverted technological impediments to meeting the M3 rating standard for many handset models that employ a GSM air interface. Moreover, the Commission adopts this modification in conjunction with new rules requiring manufacturers to “refresh” their compatible offerings with new products annually and requiring service providers to make hearing aid-compatible models available with different levels of functionality. These requirements will directly benefit consumers needing handsets with acoustic coupling capabilities. 16. The Commission also makes its decisions regarding the benchmarks for RF interference reduction and inductive coupling capability as an integrated whole. The Commission agrees with Hearing Loss Association of America and Telecommunications for the Deaf and Hard of Hearing, Inc. (HLAA/TDI) that increased requirements for deployment of T3-rated handset models comprise a beneficial trade-off for reducing, in certain circumstances, the thresholds for deploying M3-rated handset models that would have taken effect under the existing § 20.19(c). The record supports the conclusion that customers' options for handsets that enable inductive coupling with hearing aids' telecoils have been more limited than for acoustic coupling compatibility. The current two-model rule for these entities was set in 2003 and has become out-dated, as it does not provide for an expansion of T3-rated handset options. Expanded requirements of this nature should benefit some of the most disadvantaged wireless users in the deaf and hard-of-hearing community, who are more likely to rely on telecoil-equipped hearing aids. The Commission agrees with HLAA/TDI that it is generally in the public interest to increase the benchmarks for manufacturers' and Tier I carriers' deployment of handsets meeting a T3 rating for inductive coupling capability. The Commission agrees as well with Gallaudet University Technology Access program and Rehabilitation Engineering Research Center on Telecommunications Access (Gallaudet/RERC) that additional requirements of this nature will “significantly benefit individuals with severe to profound hearing loss.” Thus, the Commission finds that an additional focus of its resources should be on making available additional T3-rated handset models. 17. The Commission also concludes that the same deadlines are appropriate for manufacturers and Tier I carriers. The Commission agrees with ATIS that a single, unified deadline as proposed in the *NPRM* and Joint Consensus Plan will improve compliance and make the rules simpler to administer. Moreover, unlike service providers not in Tier I, Tier I carriers have in the past not submitted waiver requests stating that they have experienced significant problems meeting deployment deadlines in the same time frame as manufacturers. Furthermore, unlike the initial deployment deadlines where manufacturers may have had no models certified as hearing aid-compatible until shortly before the date, Tier I carriers now need only to increase their selection from among available stock. Although AT&T, Inc. (AT&T) states that it prefers a staggering of the compliance deadlines after 2008, AT&T only cites generally the lag time for service providers to obtain handsets from manufacturers and does not provide more specific support evidencing a problem (current or past) with a unified date. The Commission also notes that ATIS, while supporting a unified deadline, states that it “would not be opposed” to a six week interval between deadlines for manufacturers and service providers. ATIS Comments at 6. The Commission therefore declines to extend the compliance deadlines for Tier I carriers. 18. The record raises separate questions regarding whether to apply the same handset deployment benchmarks to service providers other than Tier I carriers. As stated in the *NPRM,* the Joint Consensus Plan's proposals consider appropriate modifications only to the rules for manufacturers and nationwide, Tier I carriers, and they do not address the Commission's hearing aid compatibility benchmarks for regional or smaller service providers, including Tier II and Tier III carriers, or other service providers like resellers and mobile virtual network operators (MVNOs). In addition, none of the equipment manufacturers or Tier I carriers that have participated in this proceeding submitted comments on this issue. The only record the Commission has before it is comprised of the comments of six parties representing regional or smaller service providers not in Tier I—MetroPCS, SouthernLINC, Virgin Mobile, RCA, Chinook and i wireless—and two consumer advocate representatives, each group disagreeing with the other on this question. 19. After carefully considering this record in light of its past experience with non-nationwide service providers, and the costs and benefits of several possible rule change proposals, the Commission concludes that the same deployment benchmark alternatives should apply to all service providers, but it delays the compliance deadlines by three months for service providers that are not Tier I carriers. The Commission is not persuaded that service providers with small product lines will be unable to meet the 50 percent and one-third targets for handset models meeting RF interference reduction and inductive coupling capability targets, respectively. Moreover, the Commission finds that any burdens these requirements impose are necessary to ensure reasonable handset options for all hearing-impaired consumers regardless of where they reside or who they may receive service from, not just the 90 or so percent that may receive their service from Tier I carriers. Nonetheless, in recognition of the stated difficulties smaller service providers face in obtaining the latest handset models, the Commission delays each of their compliance deadlines by three months. 20. The Commission rejects the argument that the proposed benchmarks impose a “greater” burden on smaller carriers because they offer too few handset models to take advantage of the numerical alternatives, and will therefore be forced to meet the percentage benchmarks. The Commission does not accept that smaller service providers are subject to greater burdens simply because their percentages are higher: service providers with smaller product lines will be required to offer fewer hearing aid-compatible handset models than service providers with larger product lines. The alternative of offering eight to 10 handset models per air interface that meet an M3 or higher rating for RF interference reduction recognizes that carriers with large product lines may have difficulty obtaining sufficient compatible handset models to meet a 50 percent requirement, particularly since the manufacturer production benchmark is one-third going forward. In addition, the Commission finds that the availability of eight to 10 M3-rated models will provide substantial choice to hard-of-hearing consumers, especially in light of its other requirements, and therefore the Commission is not requiring service providers with large product lines to offer more models. The incremental benefits to consumers of requiring more than eight to 10 compatible models are diminished, and are outweighed by the burdens on the service provider. 21. The Commission finds that the availability of percentage benchmarks is necessary to ensure that smaller service providers are not overly burdened. Even though eight to 10 M3-rated models provide consumers with substantial choice, the Commission does not believe it reasonable to require that eight to 10 compatible models be offered by service providers with smaller product lines, including many non-nationwide service providers. Therefore, the Commission permits these service providers instead to meet the compatibility standard for 50 percent of their product lines, ranging from two to seven models per air interface depending on the total number of models offered. Similar reasoning underlies the alternative benchmarks for inductive coupling capability. The rule is designed to permit each service provider to meet the benchmark that is less burdensome for it depending on its particular situation, while providing consumers with significant choice no matter which service provider they may use. 22. The Commission is also not persuaded by arguments that service providers other than Tier I carriers will be unable to obtain sufficient hearing aid-compatible handset models to meet the benchmark percentages and therefore will have to reduce their product lines. These service providers argue that they have less access to hearing aid-compatible models than Tier I carriers, among other reasons because they must purchase handsets through third-party vendors and because the larger carriers sometimes have exclusive arrangements to obtain certain handset models. The Commission notes, however, that the number of hearing aid-compatible models these service providers must obtain to meet the percentage benchmarks is not large. For example, a service provider that offers 10 handset models over an air interface would need to offer five that meet an M3 (or higher) rating and four that meet a T3 (or higher) rating. Moreover, the percentage requirement for T3-rated (or higher) models would not become effective for such a provider until May 2009. Until then, the service provider could satisfy the rule by offering the numerical alternative of three models meeting this standard. The Commission acknowledges that many smaller service providers' offerings of compatible handsets may currently fall short of these levels. Given the substantial and increasing number of hearing aid-compatible models that are currently available, however, the Commission is convinced that, with reasonable effort, even the smallest non- *de minimis* providers can obtain enough compatible models to satisfy the particular benchmarks that are applicable to them. Commenters offer no evidence that so many hearing aid-compatible models are subject to exclusivity arrangements as to significantly diminish the number that they are able to obtain, or that large numbers of compatible models are unavailable through vendors. As it has stated in the past, the Commission expects that, if a service provider's usual vendors cannot supply appropriate handset models, it will make arrangements with other suppliers. The Commission also remains unpersuaded by Virgin Mobile's general argument that few hearing aid-compatible models are available in the lower price ranges that its customers demand. Although Virgin Mobile may reasonably select the hearing aid-compatible models that are most likely to appeal to its customer base, the Commission continues to believe it should not be relieved of its duty to make hearing aid-compatible options available to its customers simply due to its prediction that customers will not choose to purchase these models. In addition, the Commission anticipates that in the future, manufacturers may produce more hearing aid-compatible models in lower price ranges in order to facilitate carriers' fulfillment of their obligation to offer phones with multiple levels of functionality. 23. Moreover, to the extent the deployment benchmarks that the Commission adopts do impose increased burdens on small carriers, these burdens are outweighed by the benefits to consumers. Commenters representing people with hearing loss support the universal application of these benchmarks, stating that this would assist a great number of hearing aid users. These additional benchmarks, especially the new benchmarks for inductive coupling capability, should provide valuable benefits to affected consumers with profound hearing loss. Regardless of size and product line, every service provider has customers who need hearing aid-compatible phones, and it is incumbent upon each wireless service provider to make arrangements and allocate the resources that are necessary to meet their needs. 24. The Commission concludes that a three-month extension of deadlines for meeting these benchmarks, however, is appropriate with regard to service providers that are not Tier I nationwide providers, including regional and smaller providers, such as Tier II and Tier III carriers, and other service providers such as resellers and MVNOs. Five non-Tier I commenting parties argue that if they are subjected to new deployment benchmarks, they should receive extended deadlines of six months to one year following Tier I carriers' deadlines. The Commission agrees with the position of consumer advocate groups, however, that a three-month delay is more appropriate. While the Commission recognizes that smaller service providers may reasonably require some additional time to obtain up-to-date compliant products through vendors, the Commission is concerned that a longer delay would unnecessarily and unacceptably deny the benefits of its rules to consumers. Moreover, a three-month delay is consistent with past instances where the Commission has recognized that waivers of up to approximately three months for non-Tier I service providers have often been justified, but has generally denied requests for longer periods. The Commission finds that an extension beyond three months may only serve to excuse poor planning, inferior oversight, or some other factor within a service provider's control. Indeed, given that service providers have known for years that they would likely become subject to a 50 percent benchmark for handset models with RF interference reduction, which will remain the operative requirement for many of them, and at most they will have to obtain one additional handset model to satisfy the first new benchmark for inductive coupling capability, the Commission would arguably be justified, at least for the 2008 benchmarks, to afford no extension at all beyond that granted Tier I service providers. The Commission therefore concludes that a three-month delay will provide ample time for service providers not in Tier I to obtain the compliant handset models that they need to satisfy both the 2008 and future benchmarks. 2. New Requirements for Handset Deployment 25. As an integral part of the handset deployment objectives the Commission sets forth today, the Commission also adopts two new rules that together will facilitate the offering of not just more handsets, but also a range of compatible handset models throughout the manufacturer-to-consumer supply and distribution channels. The annual product refresh rule for manufacturers and the requirement that service providers offer handset models with different functionality levels should provide consumers with access to hearing aid-compatible handsets with the newest features, as well as more economical models. These proposals are an essential part of the Joint Consensus Plan, and they are broadly supported in the record. Indeed, the record demonstrates that hard-of-hearing consumers demand an increased selection of popular and innovative handsets. While requirements to deploy minimum numbers or percentages of hearing aid-compatible handset models are essential to ensure that such phones will be available to consumers, the Commission finds, based on the record and experience under the existing rules, that these additional requirements are necessary to enable consumers to select a wireless phone that is not only compatible with a given hearing aid, but that also meets their other needs as a consumer, such as offering the latest features. Accordingly, the Commission adopts the product refresh rule for manufacturers and the functionality level rule for service providers. a. Product Refresh Rule for Manufacturers 26. Every commenter to address the issue supports adoption of the proposed product refresh requirement without modification. The Commission therefore adopts this rule as set forth in § 20.19(c)(1)(ii) of the rules (set forth at the end of this summary). The Commission finds that this rule is necessary to ensure that service providers will be able to offer to consumers a selection of hearing aid-compatible models including those with the latest features. The Commission further finds that the rule will not cause undue costs to manufacturers. Indeed, all commenters representing equipment manufacturers supported the rule on grounds that it would permit them to provide consumers with a variety of devices. The Commission also corrects an apparent typographical error in the rule as proposed in the Joint Consensus Plan. As reproduced in the *NPRM,* the Joint Consensus Plan states that the number of new models to be produced is to be determined by “multiplying the total number of new [hearing aid-compatible] models offered in the United States by fifty percent.” 22 FCC Rcd 19670, 19712 App. B (2007). The Commission corrects this to clarify that the relevant figure is 50 percent of the total required number of hearing aid-compatible models. b. Rule Requiring Service Providers To Offer Models With Differing Levels of Functionality 27. Upon consideration of the record, the Commission adopts the handset functionality rule as proposed and applies it to all service providers. As applied to Tier I carriers, all commenters representing Tier I carriers support a handset functionality rule. The Commission therefore adopts the rule in order to ensure that hearing aid users can select from a variety of compliant handset models, with varying features and prices. Moreover, these commenters agree that service providers should have flexibility to define their product levels because, as ATIS states, “[i]t is not feasible to identify a uniform set of `tiers’ for all carriers that will appropriately apply to each carrier's unique set of product offerings.” ATIS Comments at 7-8. The Commission concurs that given the great variety and continual development in handset features, any effort on its part to define criteria of functionality would be infeasible and might deter innovation, and the Commission therefore prescribes no criteria. The Commission does, however, stand by its guidance that a handset's level of functionality may include its capability to operate over multiple frequency bands. While Research in Motion Limited
(RIM)objects that the availability or unavailability of a particular frequency band does not represent anything of value to a consumer, the Commission disagrees on the ground that the ability to access additional frequency bands may increase the circumstances under which the consumer can use the phone. The Commission clarifies that no service provider is required to offer phones that operate over multiple bands, and that this is simply one factor a service provider may use to distinguish the functionality of its handset models. In addition, the Commission adopts Gallaudet/RERC's suggestion to require service providers to disclose their functionality criteria in their reports to the Commission and on their Web sites, in order that both the Commission and the public may understand the basis for their distinctions. 28. Finally, the Commission determines to apply the rule to all service providers, not only nationwide Tier I carriers. Several regional and smaller service providers do not support such a requirement, arguing, for example, that such a requirement would be intrusive and that the statute does not require the Commission to ensure that hearing aid users have feature-rich phones. Other commenters, however, contend that the functionality level rule should be applied universally. For the same reasons discussed with respect to the handset deployment benchmarks, the Commission concludes that consumers with hearing loss should not be deprived of a choice of handset features based simply on their place of residence or their service provider. Moreover, given flexibility to define levels, even service providers with relatively small product lines should be able to distinguish among their handset models in a manner that permits them to define levels of functionality appropriate to their situation. The Commission does not expect a provider with four hearing aid-compatible models, for example, necessarily to offer as many levels of functionality or as broad a range of product offerings as a Tier I carrier with eight or more models, but the Commission does expect such a provider to draw some distinctions. 3. Implementation Issues a. Definition of a Model 29. RIM supports the proposal to accept a manufacturer's determination of whether a device is a distinct model. PerrineCrest Radio Consulting (PerrineCrest Radio) asserts that the Commission should further define a model, or that at a minimum, manufacturers should explain how they distinguish their models. PerrineCrest Radio argues that this would help in monitoring the effectiveness of its requirements. It does not offer any suggestion regarding how the Commission should define a model, however. 30. The Commission concludes that its proposal represents the right approach to determinations of what constitutes a “model” under its rule. Consistent with its proposal, the Commission determines that, for purposes of the hearing aid compatibility rules, a manufacturer may not characterize as separate models any devices that do not in fact possess any distinguishing variation in form, features, or capabilities. Thus, under some circumstances, handsets assigned different model numbers by the manufacturer may count as a single model under the rules, such as where multiple model numbers are assigned to the same handset to distinguish units sold to different carriers, or are used to designate other distinctions that do not relate to either form, features, or capabilities. Otherwise, the Commission finds it appropriate to defer to manufacturers regarding which devices constitute distinct models, consistent with how those devices are marketed to the public, because manufacturers are best positioned to determine when and how to market their own devices as distinct models. The Commission notes that it has, to date, deferred to manufacturer designation of distinct model lines and has not come across any instance in which such designations were made in bad faith to escape hearing aid compatibility obligations or did not otherwise reflect legitimate differences between devices. The Commission has no reason to believe that manufacturers will not continue to act in good faith in this regard. Accordingly, the Commission will accept manufacturers' determination of whether a device is a distinct model, subject only to these aforementioned restrictions. 31. While the Commission does not generally establish specific requirements regarding model distinctions, the Commission specifies one circumstance in which the Commission requires a device to be given a distinct model designation. Specifically, where changes are made to a device that result in a change in the hearing aid compatibility rating, the Commission requires manufacturers, and service providers down the distribution chain, to provide the altered device a model name/number that is distinct from the original device's designation. Based on its previous experience and the need for service providers and consumers to determine easily the compatibility of particular handset models, manufacturers and service providers should not be simultaneously offering two or more identically designated models with different hearing aid compatibility ratings. 32. The Commission will not require a new model designation where a change in rating is not the product of a change in the device but is simply the result of certifying for hearing aid compatibility a model that was not previously so certified. The Commission further clarifies that in such an instance, once the model has been certified, service providers offering that model may offer it to satisfy their deployment obligations, even if the particular units they offer were obtained from the manufacturer prior to date of certification. They must, however, ensure that such models comply with hearing aid compatibility labeling obligations, if necessary by contacting the manufacturer and requesting appropriate external labeling and inserts. Further, they may not count any model as hearing aid-compatible for periods prior to the date on which the model was certified for hearing aid compatibility. b. Multi-Mode and Multi-Band Handsets 33. Commenters generally support the proposal that a handset be considered hearing aid-compatible only if it is compatible in all frequency bands and modes over which it operates and for which there are established standards. RCA, however, opposes the proposal, arguing that it will reduce availability of hearing aid-compatible handsets, and will particularly harm small service providers whose access to such handsets is already limited. 34. In addition, although most manufacturers and service providers support the basic multi-band/mode proposal where hearing aid compatibility technical standards already exist, they oppose the proposal in the *NPRM* to automatically treat multi-band and multi-mode handsets as non-compatible if they operate over frequency bands or modes without established standards. They assert that the proposal may inhibit or delay deployment of new technologies and converged devices, and that there is no evidence that new frequency bands or air interfaces will cause interference problems. In particular, some commenters express concerns regarding the effect of such a rule on deployment of multi-mode handsets that offer Wi-Fi capability. Commenters further assert that the proposal will mislead consumers with hearing loss into concluding that all handsets operating over new frequency bands or using new technology are incompatible with hearing aid use, even if the handsets can be certified compatible in all operating modes and frequency bands that have established standards. Finally, they argue that the proposal violates the Commission's statutory obligation to “ensure that regulations adopted to implement this section encourage the use of currently available technology and do not discourage or impair the development of improved technology,” 47 U.S.C. 610(e), and would also exceed its statutory authority by effectively imposing hearing aid compatibility requirements in the absence of established standards for such compatibility. Instead of the proposed rule, they recommend that the Commission provide ANSI time to identify actual interference concerns and offer specific standards or recommendations, and otherwise permit handsets to be designated hearing aid-compatible so long as they have been certified to meet hearing aid compatibility standards in all frequency bands and operating modes that have established standards. 35. Gallaudet/RERC supports the proposal in the *NPRM* , arguing that consumers who purchase handsets labeled hearing aid-compatible have an expectation that such phones are compatible in all of their operations, and that the proposed rule will therefore prevent consumer confusion regarding hearing aid compatibility when the phone is operating over frequency bands or air interfaces that do not have standards. Gallaudet/RERC further argues that the rule will provide incentives to the wireless industry to establish standards in a timely fashion. Commenters in opposition respond that the Commission can address confusion concerns with disclosure requirements, and that there is no reason to believe that the rule will hasten development of standards. These commenters also disagree that the rule is justified to induce more rapid adoption of new standards. 36. A filing on behalf of both industry and consumer group representatives asked that the Commission hold the record open to enable them to develop a consensus proposal regarding multi-mode and multi-band phones that operate in part over air interfaces or frequency bands for which no hearing aid compatibility standards exist. As set forth in this filing, members of ATIS' Incubator Solutions #4 (AISP.4-HAC) state that they have agreed with representatives of consumers with hearing loss to develop such a proposal. The filing also states that AISP.4-HAC anticipates filing general principles regarding this consensus plan within three months of the release of the Commission's Order, with more specific information regarding this proposal to be filed within six months of the release of the Order. ATIS states that, with the exception of devices incorporating Wi-Fi capability, it is unaware of any phones currently available that operate over multiple air interfaces or frequency bands, some of which have hearing aid compatibility standards and some of which do not. Finally, with regard to devices that incorporate Wi-Fi capability, the filing states that the members of AISP.4-HAC support allowing such devices to be labeled as hearing aid-compatible if they satisfy hearing aid compatibility standards for all other frequency bands and air interfaces over which they operate. 37. In order to both protect consumers and provide clarity to industry with respect to handset offerings that already exist, while allowing further consideration of the longer-term issues, the Commission takes the following steps at this time. First, the Commission adopts the Joint Consensus Plan's proposal to clarify that, to be counted as compatible, a handset model must be hearing aid-compatible for each air interface and frequency band it uses as long as standards exist for each of those bands and interfaces. Second, the Commission leaves the record open for further submissions in the near term, including an anticipated consensus proposal, regarding whether a phone that operates in part in bands or air interfaces for which no standards exist should be counted as compatible, if it is compatible in all bands and air interfaces for which hearing aid compatibility standards exist. Finally, because there already exist a large number of handset models that operate over the Wi-Fi air interface as well as in bands and air interfaces for which there are hearing aid compatibility standards, the Commission will allow such phones on an interim basis to be counted as hearing aid-compatible if they otherwise qualify as hearing aid-compatible under its rules, but will require consumers to be informed that those phones have not been rated for hearing aid compatibility with respect to their Wi-Fi operations. 38. The Commission first adopts the Joint Consensus Plan's proposal and establishes that, to be offered as hearing aid-compatible, a handset must be hearing aid-compatible for every frequency band and air interface that it uses for which standards have been adopted by the Commission. As indicated in the *NPRM* , the Commission finds that requiring a hearing aid-compatible handset to be hearing aid-compatible in all such frequencies and modes of operation will better conform to the expectations of consumers that purchase such handsets. Conversely, allowing manufacturers and carriers to satisfy their deployment requirements with partially-compatible handsets where hearing aid compatibility standards exist, would likely cause significant confusion to consumers who purchase handsets that are labeled and offered as hearing aid-compatible, and who perhaps experience compatibility when the handset is tested in-store, only to discover later that the handset's compatibility varies depending on which of its frequency bands or air interfaces is in use at any particular moment. The Commission notes that it emphasized the benefits to hard-of-hearing consumers of being able to rely on a full range of functionality in their hearing aid-compatible handsets and of not having to learn all the technical details, such as the frequencies on which their phones operate. Further, although RCA expresses concern that the rule will discourage the manufacture of hearing aid-compatible multi-mode handsets, the Commission notes that those manufacturers to comment on the issue all support the rule as proposed in the Joint Consensus Plan, some expressly indicating that the rule will not impede the development of technology. 39. Second, except for its interim ruling with respect to the Wi-Fi air interface, the Commission does not here resolve whether, or to what extent, multi-band and multi-mode handsets should be counted as hearing aid-compatible if they operate in part over frequency bands or air interfaces for which technical standards have not yet been established. The record contains arguments both in favor of and against treating such handsets as hearing aid-compatible. Moreover, according to industry representatives, no such handsets currently exist, with the exception of devices incorporating Wi-Fi capability. The Commission accepts the proposal endorsed by both industry and consumer representatives to leave the record open so that they may develop a consensus plan on this issue in the near term. When the Commission subsequently addresses the application of hearing aid compatibility requirements to Wi-Fi operations, it will consider an appropriate transition regime to bring any requirements into effect. 40. Finally, the Commission adopts an interim rule to allow handsets with Wi-Fi capability that otherwise meet hearing aid compatibility standards to be certified as hearing aid-compatible. Unlike the situation with future air interfaces and anticipated frequencies ( *e.g.* , the 700 MHz band), many handset models are already being produced and offered to consumers with Wi-Fi capability, including a significant proportion of the newest handset models. Moreover, the Commission has not yet addressed the extent to which hearing aid compatibility requirements should apply to handset models in various configurations incorporating Wi-Fi capability (which was not originally developed for voice transmissions), an issue on which the Commission sought comment in the *NPRM* . Therefore, the Commission adopts an interim measure to provide certainty and avoid discouraging the use of currently-available Wi-Fi technology during the period until the Commission addresses the status of Wi-Fi. Specifically, the Commission will not at present preclude a handset model that incorporates a Wi-Fi air interface from being offered as hearing aid-compatible so long as the handset otherwise qualifies as hearing aid-compatible under its rules. 41. To reduce consumer confusion as much as possible, however, the Commission also will require manufacturers and service providers, where they provide hearing aid compatibility ratings for handset models that incorporate operations using a Wi-Fi air interface, to clearly disclose to consumers that the handset has not been rated for hearing aid compatibility with respect to its Wi-Fi operation. This includes phones that may be used to provide Voice over Internet Protocol using a Wi-Fi air interface. The Commission recognizes that such disclosure is not likely to fully relieve potential customer confusion regarding handsets that meet established hearing aid compatibility standards for all of their operations except Wi-Fi. Given the current circumstances, however, the Commission believes the better course is to require disclosure of the lack of a hearing aid compatibility rating over the Wi-Fi air interface rather than preclude handset models that incorporate a Wi-Fi air interface from being considered hearing aid-compatible. In addition, the Commission expects service providers to train the sales staff at their owned or operated retail outlets regarding the lack of a rating for Wi-Fi operations and its implications. To give manufacturers and service providers sufficient time to develop and implement effective means to disclose this information ( *e.g.* , inclusion of call-out cards or other media, revisions to their packaging materials, supplying of information on Web sites) where hearing aid compatibility ratings are provided, this requirement will become effective six months after the effective date of the rules adopted in the *R&O* . The Commission also notes that Working Group 6 of the ATIS incubator is developing language to inform consumers when otherwise hearing aid-compatible phones operate in part over frequency bands or air interfaces that do not have hearing aid compatibility standards. c. *De minimis* Rule 42. Most commenters addressing the issue support the Joint Consensus Plan proposal to retain the *de minimis* exception to hearing aid compatibility requirements and to codify that the exception applies on a per air interface basis. HLAA/TDI and Gallaudet/RERC propose, however, that the exception be modified so that it not apply on a permanent basis to large businesses that produce only one or two handsets with mass appeal, such as Apple's iPhone. Gallaudet/RERC argues that, if the exception applied to companies like Apple that do not routinely manufacture handsets, their handsets might be subject to the exception indefinitely, and consumers with hearing loss might never have the opportunity to use such devices. It further argues that the exception was not intended to permanently relieve large and prosperous companies whose handsets produce large profits from the obligations of § 20.19. It therefore suggests that the exception be applicable in such cases only for a certain period of time. HLAA/TDI similarly argues that the exception was only intended to protect small businesses, and should therefore be limited in its application to large businesses like Apple. In response, several commenters oppose the limitations suggested by Gallaudet/RERC and HLAA/TDI, arguing that the exception was not intended to be limited to small businesses, and that the proposed limitations risk undermining the rule's objective of preserving competition and innovation from new entrants. 43. The Commission adopts the proposal of the Joint Consensus Plan to retain the existing *de minimis* exception, which in most of its applications was not opposed in the record. The Commission further adopts the proposal to codify that the exception applies on a per air interface basis. No commenter has objected to applying the exception on a per air interface basis, and the Commission sees no reason to depart from an earlier decision that adopted that interpretation. As the Commission previously indicated, a per air interface approach to the *de minimis* exception to the handset deployment obligations follows from the deployment obligations themselves, which are also applied on a per air interface basis ( *i.e.* , manufacturers and service providers must offer the specified number of handsets for each air interface in their product lines). If the Commission were to apply the exception to the total number of handsets across a manufacturer's total product line while requiring the specified number or percentage of hearing aid-compatible handsets for each air interface, a manufacturer that offered just one handset each for four different interfaces would fall outside the exception for each of the four interfaces. This result would force the manufacturer in question to either significantly increase the number of handsets in its product line to meet a multiple-handset deployment obligation for each air interface or else withdraw some of its existing products from the U.S. wireless market, which could retard technological progress and limit competition. 44. While the Commission does not adopt at this time the new limitation proposed by HLAA/TDI and Gallaudet/RERC, the Commission leaves the record open for further comment. The Commission intends to address this issue further, taking into consideration any *ex parte* submissions it receives, in an upcoming Report and Order. 45. In addition, regardless of whether or how the Commission subsequently modifies the application of the *de minimis* exception, the Commission strongly encourages all manufacturers, including those falling within the *de minimis* exception, to consider hearing aid compatibility as an integral and early part of their handset design process and to incorporate hearing aid compatibility into their new designs wherever feasible. The Commission also strongly encourages all manufacturers, including new entrants as well as established companies, to participate in the standards-setting process so as to keep abreast of developments in this area, and to incorporate any revisions in the hearing aid compatibility standard at an early stage when designing and testing their handsets. 4. M4/T4 Standards 46. Most commenters that address this issue advise against the adoption of M4/T4 requirements, or state a preference to wait until the hearing aid compatibility rules are next reviewed in 2010 to consider any such standards. Rehabilitation Engineering Research Center for Wireless Technologies (Wireless RERC) states, on the other hand, that “the FCC needs to expand the rules * * * to increase the number of models available with M4/T4 compatibility.” Wireless RERC Comments at 5. Hearing Industries Association
(HIA)states generally that it supports mandating M4/T4 performance by handsets “if and when such performance is reasonably achievable.” 47. Given the weight of the record, especially the fact that no commenter submitted any specific proposals for new standards or rules, the Commission determines not to impose any additional benchmarks based on hearing aid compatibility standards more stringent than the M3/T3 standards in its rules and in the Joint Consensus Plan. Without more, the Commission finds that technology and the market are not yet fully enough developed to support a specific requirement at this time. Nevertheless, the Commission agrees with Gallaudet/RERC that the matter of requirements to deploy M4- or T4-rated handsets should be considered in the rulemaking review that the Commission plans to initiate in 2010. In the meantime, given the surveys and studies submitted by Wireless RERC, and the comments of HIA, the Commission encourages manufacturers and service providers, including new entrants, to develop and deploy wireless phones that meet M4 and T4 standards in order to give greater options to consumers with hearing loss. In its 2010 review, the Commission will look closely at the extent to which these handsets are commercially available, whether achieving these standards is technically feasible for all interfaces and frequency bands, and the degree to which hearing aid technologies may have improved so as to make achieving such standards unnecessary. B. 2007 ANSI C63.19 Technical Standard 1. Adoption of the 2007 Standard and Phase-in 48. Consistent with the Joint Consensus Plan and the unanimous view of commenters, the Commission adopts the 2007 ANSI C63.19 standard as a replacement for the 2001, 2005, and 2006 versions of the standard. The Commission concludes that the use of the most current testing and rating techniques will best ensure that consumers with hearing loss can obtain wireless phones that meet their needs. The Commission also adopts the transition schedule set forth in the Joint Consensus Plan (under which use of either the 2007 or 2006 standard would be permitted immediately, and the 2007 standard would become mandatory for grants of equipment authorization beginning January 1, 2010), agreeing with commenters that this affords manufacturers appropriate time to begin producing phones to the new standard. The Commission further determines not to require recertification of handsets previously certified under one of the older standards, but instead to continue recognizing such phones as hearing aid-compatible even after the 2007 standard becomes mandatory for new certifications. As AT&T observes, older models are likely to be “phased out of circulation through marketplace attrition,” which should obviate the issue. AT&T Comments at 6. Finally, no commenter addressed whether the 2001 and 2005 versions of the standard should continue to be permissible for new certifications during the transition period until 2010. To the contrary, the comments consistently assume that the choice during the transition period is between the 2006 and 2007 versions of the standard. As proposed in the Joint Consensus Plan, therefore, the Commission does not provide for the continued use of earlier versions. 49. In its comments, ANSI notes that the phase-in requirement contains an unspoken assumption, that “this would require any given mobile phone handset to be qualified under a complete version of either the 2006 or 2007 standard.” ANSI Technical Comment at 2. The Commission agrees. Accordingly, the Commission clarifies that a party can use either the 2006 or 2007 standard for new certifications through 2009, but must use a single version for all certification tests and criteria for both the M and T ratings with respect to a given device. The particular version of the standard used should be specified in the party's application for equipment certification. 50. To summarize, a newly-certified handset model or a handset model submitted for a permissive change relating to hearing aid compatibility will have to meet, at minimum, an M3 rating (for radio frequency interference reduction) or T3 rating (for inductive coupling capability) as set forth in either the 2006 or 2007 revision of the ANSI C63.19 standard to be considered compatible. Grants of equipment certification previously issued under earlier versions of the standard will remain valid for hearing aid compatibility purposes, and if a permissive change is submitted for a reason not related primarily to a handset model's hearing aid compatibility status, the analysis of the effect of that change on a phone's compliance status may use the version of the ANSI C63.19 standard under which the hearing aid compatibility certification for that model was first made. Consistent with the requirement to use a single version of the standard for all tests and criteria, however, if a permissive change is submitted for one of the hearing aid compatibility ratings, the manufacturer must also reevaluate the other hearing aid compatibility rating using the same version of the ANSI C63.19 standard. However, a manufacturer that is required to meet a T3 rating for 20 percent of its models under § 20.19(d)(1)(i) will only be able to count toward this requirement one model manufactured after January 1, 2009, and certified under a pre-2007 standard. Then, beginning on January 1, 2010, the Commission will only permit use of the 2007 version of the standard for obtaining new grants of equipment certification, while continuing to recognize the validity of existing grants under previous versions of the standard. 2. Application to Services in the 800-950 MHz and 1.6-2.5 GHz Bands 51. In the *NPRM,* the Commission observed that the 2007 version of the ANSI C63.19 standard includes target values for hearing aid compatibility procedures for operation over specific air interfaces at frequencies in the ranges of 800-950 MHz and 1.6-2.5 GHz, a broader range of frequencies than is currently covered by § 20.19(a). The Commission adopts its proposal to revise the rule to include services over any frequency band within the range covered by the ANSI C63.19-2007 standard, specifically, the 800-950 MHz and 1.6-2.5 GHz bands, to the extent that they employ air interfaces for which technical standards are established in that standard. The Commission notes that Wi-Fi technologies often operate in the 2.4 GHz band, within the frequency range addressed by the ANSI C63.19 standard. However, as noted elsewhere, the Commission has not yet determined the extent to which services and operations based on emerging technologies such as Wi-Fi should be subject to hearing aid compatibility obligations. The Commission notes that no commenter objects to this revision or indicates that any delay is necessary to meet hearing aid compatibility obligations within this frequency range. Accordingly, as of the effective date of the rules, providers of commercial mobile radio services that are operating over these frequency bands and are otherwise within the scope of § 20.19, as well as manufacturers of wireless phones used in the delivery of such services, will be subject to the same benchmark requirements that providers of cellular, Personal Communications Service (PCS), and Specialized Mobile Radio
(SMR)services have to deploy hearing aid-compatible handset models as determined using either the 2006 or 2007 version of ANSI standard C63.19. The Commission notes that the *NPRM* also requested comment on how the rules apply to mobile satellite service
(MSS)providers and whether any rule revisions are necessary respecting such providers. The Commission defers these issues to a future Report and Order. The rules it adopts in the *R&O* do not apply to MSS unless they fall within the existing scope of § 20.19(a). 3. Future Revisions and Extensions to the Technical Standard a. Rules Adopted in *R&O* 52. In the *R&O,* to help ensure that its rules continue to reflect the most current standard as ANSI adopts new revisions to the standard, the Commission, as it has previously done, delegates to the Chief, Wireless Telecommunications Bureau (WTB), and the Chief, Office of Engineering and Technology (OET), the authority to jointly adopt future versions of the ANSI C63.19 standard to the extent that the changes to the standard do not raise major compliance issues. In addition, the Commission expands its delegation to a limited extent, *i.e.* , to allow Commission staff to administer a mechanism by which new frequency bands and air interfaces for which technical standards do not currently exist may be made subject to hearing aid compatibility obligations once such standards have been established. Specifically, where future versions of the ANSI C63.19 standard have been promulgated that provide technical standards for additional frequency bands or air interfaces not covered by previous versions, the Commission directs the Chief, Wireless Telecommunications Bureau (WTB), and the Chief, Office of Engineering and Technology (OET), to initiate a rulemaking proceeding, adopting the standards as established technical standards for the new frequency bands or air interfaces if they determine, based on the record, that the standards do not impose with respect to such frequency bands or air interfaces materially greater obligations than those imposed on services already subject to § 20.19. To ensure that manufacturers and service providers have adequate time to comply with their obligations, the Commission further imposes a limitation that WTB and OET may not require manufacturers and Tier I carriers to meet deployment requirements for the relevant bands or air interfaces until at least one year after release of an order adopting standards for those bands or air interfaces, and may not require service providers other than Tier I carriers to meet such requirements sooner than 15 months after release of such order. However, manufacturers will be able to obtain hearing aid compatibility certification of handsets that can operate over the new bands or air interfaces, consistent with the multi-band/multi-mode rule, immediately upon the effective date of the rules adopted in such order. In a Report and Order regarding the 700 MHz Service, the Commission established a 24-month period for the development of standards for all of the frequencies listed in § 27.1(b) of the rules, and provided that, if such standards were promulgated within that period, the Commission would initiate “a further proceeding at that time to establish a specific timetable for deployment of hearing aid-compatible handsets for services in the relevant bands that meet the criteria discussed above.” 22 FCC Rcd 8064, 8120 (2007). Pursuant to the Commission's action in the *R&O,* this rulemaking proceeding referenced in the 700 MHz Report and Order may be undertaken by WTB and OET under delegated authority. 53. The Commission's action in this regard is broadly supported by the record. In particular, every commenter that addresses the issue generally supports establishment of a streamlined mechanism for the approval of revised standards that provide tests for new frequency bands and air interfaces. Moreover, this process addresses concerns expressed by some commenters that the Commission should provide the public an opportunity to comment on the new standard before formally approving the standard in cases where the approval of the standard will result in extending hearing aid compatibility requirements to new bands or air interfaces. Telecommunications Industry Association
(TIA)advocates that the Commission allow at least a two-year period after adoption of a new standard before requiring compliance. The Commission finds, however, that a one-year interval is generally both sufficient for industry and necessary in order to bring the benefits of hearing aid-compatible handsets promptly to consumers. Because manufacturers are already on notice that new bands and air interfaces will be subject to hearing aid compatibility requirements upon the establishment of standards, and given that manufacturers will likely be involved themselves in the standards development process, the Commission expects that they will be in a position to at least begin the process of developing hearing aid-compatible handsets for the new bands and air interfaces even before the relevant standards are approved by ANSI, not to mention during the pendency of the rulemaking proceeding. Furthermore, the industry's years of experience with hearing aid compatibility in other bands and air interfaces will enable them to achieve hearing aid-compatible designs more quickly than before. The Commission therefore adopts a minimum one-year period for manufacturers and Tier I carriers in order to ensure the offering of hearing aid-compatible handsets for new bands and air interfaces as early as reasonably possible. Consistent with its recognition elsewhere of the difficulties smaller service providers may have in procuring up-to-date handsets, the Commission prescribes a 15-month minimum interval for service providers other than Tier I carriers to begin offering hearing aid-compatible handsets for new bands and/or air interfaces. 54. Thus, in order to ensure that its rules continue to protect the ability of consumers with hearing loss to utilize services over all frequency bands and air interfaces for which standards exist, the Commission delegates authority to WTB and OET to implement rule changes to conform its rules to ANSI standards. The Commission takes this action pursuant to Section 5(c)(1) of the Communications Act, which grants the Commission authority to delegate any of its functions, with certain exceptions not relevant here. 47 U.S.C. 155(c)(1). The Commission finds that such rule changes do not involve novel questions of fact, law, or policy, and therefore are appropriately made under delegated authority. The Commission amends §§ 0.241(a)(1), 0.331(d), and 20.19 of its rules to provide the Chiefs of WTB and OET with this delegated authority. These amendments pertain to agency organization, procedure and practice. Consequently, the notice and comment provisions of the Administrative Procedure Act contained in 5 U.S.C. 553(b) are inapplicable. *See* 5 U.S.C. 553(b). b. Rules Adopted in *Recon* 55. In the *Recon,* the Commission modifies the delegated authority and procedures adopted in the *R&O* by which WTB and OET may approve the use of future versions of the ANSI C63.19 standard to the extent that the changes to the standard do not raise major compliance issues. The Commission concludes, on further consideration, that approval by the Chiefs of new versions of the ANSI C63.19 standard that do not raise major compliance issues, and that are approved for use only as optional alternatives to the other approved versions of the standard, should be codified in the rules. Therefore, if the Chiefs determine that such a new version of the hearing aid compatibility technical standard should be approved, the Commission requires them to issue an order amending § 20.19 as necessary to codify the approval of the new version for use in determining and certifying hearing aid compatibility of covered handsets, and the Commission delegates to the Chiefs the authority to conduct a notice-and-comment proceeding, to the extent required by statute or otherwise in the public interest, to adopt the requisite rule changes. The Commission does not, however, require adoption by notice-and-comment procedures if such procedures are not otherwise required by statute. 56. As before, the Commission only authorizes the Chiefs to approve new versions of the ANSI C63.19 standard pursuant to this delegation of authority where changes in the new standard do not raise major compliance issues, and subject to the limitation that the Chiefs may only permit, not require, the use of such subsequent versions of ANSI C63.19 to establish hearing aid compatibility. C. Reporting, Information, and Outreach 1. Reporting 57. The Commission adopts substantially the reporting requirements proposed in the *NPRM,* along with certain additions and changes. First, the Commission elaborates on the required content of the reports in order to ensure that they will provide complete information to the Commission and to consumers. The Commission further determines to require the same content from all providers, regardless of size. Furthermore, the Commission clarifies that the reporting requirements apply to all manufacturers and service providers, including those that come under the *de minimis* exception to the deployment benchmarks. The Commission establishes new timelines for the filing of the reports. Finally, the Commission delegates authority to prescribe a template, including the authority to require electronic filing, to WTB. 58. The Commission adopts the reporting content requirements proposed in the *NPRM* with certain elaborations and clarifications. These revised requirements will help ensure that the reports enable the Commission to fulfill its responsibilities in monitoring the status of access to hearing aid-compatible handsets and verifying compliance with its rules, and will ensure that the public has additional useful information on compatible handsets. Specifically, the Commission clarifies that manufacturers and service providers must provide the dates on which they began and ended offering specific models during the past 12 months in order to demonstrate compliance over time, instead of providing a once a year “snapshot.” The Commission further requires manufacturers to indicate if devices that they market under separate model numbers constitute a single model for purposes of the hearing aid compatibility rules. This information will enable the Commission to verify compliance with all of the hearing aid compatibility rules at all relevant times. Finally, the Commission requires each service provider to include an explanation of its methodology for dividing its hearing aid-compatible phones into different levels of functionality, which will help the Commission as well as the public know the range of compatible handsets that are being made available. The Commission requires that these reports be filed by all manufacturers and service providers, even those that fall within the *de minimis* exception, although not all data categories will apply to *de minimis* entities. 59. *The revised report content requirements are as follows for manufacturers:*
(1)Digital wireless phone handset models tested since the most recent report;
(2)compliant phone models offered to service providers since the most recent report, identified by marketing model name/number(s) and FCC ID number;
(3)for each such model, the air interface(s) and frequency band(s) over which it operates, the hearing aid compatibility ratings under ANSI C63.19 for each frequency band and air interface, the ANSI C63.19 version used, and the months in which the model was available since the most recent report;
(4)non-compliant phone models offered to service providers since the most recent report, identifying each model by marketing model name/number(s) and FCC ID number;
(5)for each non-compliant model, the air interface(s) over which it operates and the months in which the model was available since the most recent report;
(6)total numbers of compliant and non-compliant phone models offered to service providers for each air interface as of the time of the report;
(7)any instance, as of the date of the report or since the most recent report, in which multiple compliant or non-compliant devices are marketed under separate model name/numbers but constitute a single model for purposes of the hearing aid compatibility rules, identifying each device by marketing model name/number and FCC ID number;
(8)status of product labeling; and
(9)outreach efforts. 60. *The revised report content requirements are as follows for service providers:*
(1)Compliant digital wireless phone handset models offered to customers since the most recent report, identified by marketing model name/number(s) and FCC ID number;
(2)for each such model, the air interface(s) and frequency band(s) over which it operates, the hearing aid compatibility ratings under ANSI C63.19 for each frequency band and air interface, and the months in which the model was available since the most recent report;
(3)non-compliant phone models offered since the most recent report, identifying each model by marketing model name/number(s) and FCC ID number;
(4)for each non-compliant model, the air interface(s) over which it operates and the months in which the model was available since the most recent report;
(5)total numbers of compliant and non-compliant phone models offered to customers for each air interface over which the provider offers service as of the time of the report;
(6)information related to the retail availability of compliant phones;
(7)status of product labeling;
(8)outreach efforts; and
(9)the levels of functionality into which the compliant phones fall and an explanation of the service provider's methodology for determining levels of functionality. 61. The Commission further determines that the same reporting requirements should apply to all service providers. The Commission rejects arguments by RCA and SouthernLINC that less information should be required of service providers that are not Tier I carriers. The Commission finds that uniform application of reporting requirements is necessary to inform all consumers, and the Commission is unconvinced by arguments that the reports will impose unreasonable burdens. In this regard, the Commission disagrees with those commenters that suggest that some of this information can be difficult to obtain or verify. Rather, in light of the requirements the Commission adopts, this information should be readily available to service providers either from the manufacturer's previous reports to the Commission, from the manufacturer's own Web site, or from the manufacturer directly. The Commission further rejects the proposition that some of this information, in particular the frequency bands and air interfaces over which a phone operates, is unnecessary. To the contrary, this information is essential to ensure correct application of its rules requiring deployment of hearing aid-compatible phones on a per-air interface basis, as well as its requirements that phones meet hearing aid compatibility standards for all air interfaces and frequency bands over which they operate. The Commission notes that even if a provider offers service over only one air interface, hearing aid compatibility over multiple air interfaces may be important to its customers who may use their phones when roaming. 62. Furthermore, the Commission clarifies that even manufacturers and service providers that come under the *de minimis* exception to the deployment benchmarks are under an obligation to file reports to the Commission. Even though these entities may be exempt from other requirements under § 20.19, it is still necessary to obtain information from them in order to form a complete picture of the availability of hearing aid-compatible handsets, as well as to inform consumers. For instance, consumers would benefit, if *de minimis* entities do produce or market handset models that have been tested and found to be hearing aid-compatible, from having access to information about those handsets. In addition, information regarding all handset models that these entities offer will enable the Commission to verify their eligibility for the exception. Entities that come under the *de minimis* exception will not be required to provide information other than that relating to the handset models that they offer. For example, as they are not subject to product labeling requirements, they need not provide information on labeling. 63. In addition, the Commission requires each manufacturer and service provider that is required to offer one or more hearing aid-compatible handset models to identify in its report, if it maintains a public Web site, the specific Web site address at which it provides information relating to the hearing aid-compatible handsets that it offers. 64. The Commission requires manufacturers and service providers to file their initial reports under the new rules on January 15, 2009. Thereafter, the reports will be filed annually beginning July 15, 2009, for manufacturers and January 15, 2010, for service providers. The information in the reports shall be current through the end of the calendar month preceding the filing date, and the reports shall include historical information for the period since the entity filed its last report (which in most instances will be 12 months). In order to afford sufficient time for manufacturers and service providers to transition to the new data collecting and reporting regime, however, the reports filed in January 2009 will need to include information relating to compliant and non-compliant handset models offered only for the previous six months ( *i.e.* , beginning July 2008). 65. The Commission finds that this schedule appropriately balances manufacturers' and service providers' need for time to collect the information that will be required under the new reports with the public's interest in maintaining a steady flow of information. In particular, requiring the first reports to be filed in January 2009, two months after the next reports would have been filed under existing rules and 14 months after the most recent reports, affords manufacturers and service providers a reasonable period to begin collecting the new information. Although this schedule departs from the November and May dates proposed in the Joint Consensus Plan, the differences are not great, and the Commission's adopted rule expands the period of time some entities are afforded before making their first reports. The Joint Consensus Plan was apparently drafted with the assumption that new rules would be in place before November 2007, and accordingly it is not clear how the proponents would intend to apply its proposed schedule in the current time frame. It is at least arguable, however, that Tier I carriers would be required to file their initial reports in May 2008. Manufacturers would file their first reports in November 2008. This time period also gives WTB an opportunity to devise and promulgate a standard electronic format for reporting. Consistent with the Joint Consensus Plan, the Commission finds that staggering the deadlines after the initial reports will allow service providers better to incorporate more recent manufacturer information into their reports, as well as facilitating efficient administrative review. In addition, the Commission disagrees with the Joint Consensus Plan's provision for a year's delay in reporting for service providers that are not Tier I carriers, particularly in light of its decision not to require any reports until January 2009. The Commission notes that in the past all service providers have had the same reporting obligations, and finds that this proposal would create an unacceptable and unnecessary gap in the availability of information. Only one party, RCA, filed comments supporting this aspect of the Joint Consensus Plan, and one smaller service provider, i wireless, specifically rejected the year's delay. 66. Finally, the Commission delegates authority to prescribe a template, including the authority to require electronic filing, to WTB. The Commission finds that a standardized form would improve the quality and utility of the reports for the Commission, industry, and the public. Although at least one commenter prefers to rely on a narrative report format, the Commission concludes that a standardized format will assist the Commission and the public in understanding and analyzing the reports. 2. Information and Outreach 67. In their comments, HLAA/TDI and Gallaudet/RERC offer several proposals for changes to the Commission's Web site and databases, as well as proposed requirements and recommendations for manufacturers and service providers. The Commission agrees with HLAA/TDI and Gallaudet/RERC that improvements in the outreach activities of the Commission, manufacturers, and service providers would enhance the ability of consumers easily to obtain information about hearing aid-compatible handsets that meet their needs. The Commission therefore takes action on their recommendations. 68. First, HLAA/TDI and Gallaudet/RERC propose several changes to the Commission's Web site, databases, and processes, including: Developing a single location or Web site where hearing aid users can find the ratings and model numbers of compliant handsets offered by manufacturers and service providers; adding a search function to the FCC's equipment authorization database that will enable consumers to browse among phone features by category; adding links to manufacturers' and service providers' Web sites from the Commission's Disability Rights Office (DRO)'s web page; and adopting a consumer-friendly method of handling hearing aid compatibility complaints that
(1)Requires FCC resolution within 90 days,
(2)provides for a separate and identifiable electronic and telephonic FCC receptacle for hearing aid compatibility complaints, and
(3)facilitates the filing of formal hearing aid compatibility complaints. 69. The Commission directs the Consumer and Governmental Affairs Bureau (CGB), OET, and WTB to take these recommendations under advisement and to implement them to the extent feasible. The Commission concludes that all of these recommended actions, if feasible, would assist consumers. In particular, the Commission directs the Commission's DRO to include, on its Web site, links to the Web site addresses maintained by manufacturers and service providers that provide information on the hearing aid-compatible models that they offer. The idea that consumers should be able to access as much information as possible through easily accessible connections to relevant material is a fundamental one. The Commission notes, however, that because OET's database and the part 2 rules were designed to serve the equipment authorization process, there may be limits to their adaptability to provide accessible information on hearing aid compatibility certifications. In the *NPRM,* the Commission sought comment on whether to amend part 2 to require additional information regarding handset models in equipment authorization filings. The Commission defers action on these issues to a future Report and Order. The Commission declines at this time, in the absence of a more complete record, to require that hearing aid compatibility complaints be resolved within a particular time period, such as 90 days. The Commission does, however, expect that staff will make every effort to resolve such complaints within the shortest reasonable time frame, ideally within 90 days. The Commission also notes that, with its recent implementation of FCC Form 2000 online, the Commission has taken additional action to improve the manner in which it handles consumer complaints. In particular, FCC Form 2000C, the portion of Form 2000 that is used for disability access complaints, includes specific provisions for complaints relating to the hearing aid compatibility of wireless telephone equipment and service. The form is designed to be user-friendly, asking consumers targeted questions intended to facilitate processing of the complaint. 70. As proposed in the *NPRM,* HLAA/TDI specifically advocates adopting in the context of hearing aid compatibility complaints the contact information requirements for manufacturers and service providers that currently apply to complaints under Section 255 of the Communications Act, which governs access to telecommunications services by people with disabilities. Nokia Inc. (Nokia) and AT&T oppose this proposal, stating that “[a]dditional actions by the Commission are not necessary,” and that “manufacturers should not be required to comply with Section 255's reporting requirements in the [hearing aid compatibility] context.” Nokia Comments at 10. 71. After review of the record, the Commission adopts the proposal in the *NPRM* and amends its rules accordingly. Contrary to the arguments of some parties, the proposal from the *NPRM* was not to create a new mandate, but simply to alter the process under the existing part 68 mandate governing public complaints regarding hearing aid compatibility to make it conform to the part 6 rules that govern complaints under Section 255. Under the Commission's part 68 complaint procedures, which are applicable to wireless hearing aid compatibility complaints, manufacturers and service providers are required to designate a service agent to the Administrative Council for Terminal Attachment (ACTA). A consumer wishing to make a complaint must first approach ACTA to secure the contact information for the relevant industry entity, only after which can the consumer actually file a complaint. This differs from the process for Section 255 complaints in part 6 of the rules, under which the contact information is provided directly to the Commission and made available to the public via the DRO Web site. The Commission concludes that requiring provision of hearing aid compatibility contact information directly to the Commission for posting on its Web site—without otherwise changing the procedures for handling such complaints—will assist consumers and will impose little if any additional burden on manufacturers and service providers, who are already required to make the same information available to a third party. 72. In addition to improvements to the Commission's Web site, databases, and processes, the Commission finds it essential to the proper functioning of its hearing aid compatibility rules that manufacturers and service providers make certain limited categories of up-to-date information available on their Web sites. Specifically, the Commission requires manufacturers and service providers, beginning January 15, 2009, to post a list of the hearing aid-compatible models that they offer (identified by marketing model name/number(s)), the hearing aid compatibility ratings of those models, and an explanation of the rating system. In addition, as suggested by Gallaudet/RERC, the Commission requires service providers to post the level of functionality for each model and an explanation of the service provider's methodology for designating levels of functionality. This list and related information should be updated within thirty days of any relevant changes. Although manufacturers and service providers are also required to provide this information annually to the Commission, such information will inevitably become dated over the course of a year. Thus, updated Web site postings are necessary both so that consumers can obtain up-to-date hearing aid compatibility information from their service providers and so that service providers can readily obtain such information from their manufacturer suppliers. Because all of the information that the Commission is requiring to be posted on Web sites is already required either in annual reports or on product packaging and inserts, the Commission disagrees with assertions that it would be unduly burdensome for manufacturers and service providers to procure and maintain such information. As noted with respect to service providers' annual reports, although information regarding handset compatibility is in the first instance under the control of manufacturers, the requirement that manufacturers post the information means it should be readily accessible for service providers to post as well. Consistent with its decision regarding reporting requirements, in order to afford manufacturers and service providers time to compile the requisite information and make the necessary changes to their Web sites, the Commission delays the effective date of these posting requirements until January 15, 2009. 73. The Commission also requires manufacturers and service providers to include in their annual reports to the Commission the Web site address at which this information is posted. Further, if this Web site address ceases to be functional at any time prior to the next report, the Commission requires the manufacturer or service provider to inform the DRO of the revised address within 30 days of the change. These reporting requirements will enable the DRO to maintain up-to-date links for the public on its Web site. 74. In addition to this required information, HLAA/TDI advocates that the Commission strongly urge industry to post certain other information on their Web sites, including: A search function for hearing aid compatibility data to allow consumers to browse within the category for features they want; a listing of hearing aid compatibility ratings for all handset models, not just those with ratings of 3 and 4 (because hearing aid ratings are now available to consumers); volume control levels on phones; vibrating feature on phones; ring tones most suitable for people with hearing loss—those with low frequencies; devices with QWERTY keyboards that can make it easier to send e-mails and instant messages that supplement hearing aid compatibility; other features and functions on handsets; a downloadable version of a brochure on hearing aid-compatible handsets developed by ATIS WG6 (print version of brochure should be available in every store, including independent stores); and a downloadable version of a phone evaluation tool that the RERC at Gallaudet is now testing on its Web sites and in its advertising. 75. The Commission agrees that this information would be useful to consumers, and the Commission urges manufacturers and service providers to include it on their Web sites and in other publicity to the extent feasible. In recognition of the great variety of products, marketing practices, and Web site designs, however, the Commission does not at present require the posting of any specific information other than that previously described. 76. Finally, the Commission clarifies that under the labeling requirement in § 20.19(f), the M and T ratings that are required on the label are the overall, worst case ratings for the handset. The Commission recognizes that a multi-band or multi-mode handset may have different hearing aid compatibility ratings for different frequency bands or air interfaces. Consistent with its holding regarding the compatibility status of multi-band and multi-mode handsets, the Commission finds that the most useful information for consumers is a single “worst case” rating constituting the handset's lowest rating for any air interface or frequency band. Accordingly, while the Commission expects that the reports will include all hearing aid compatibility ratings assigned to a particular model, the labeling accompanying a hearing aid-compatible handset, as well as the information on a manufacturer or service provider's Web site, shall include only the lowest such rating as the rating for the handset. D. 2010 Review 77. No commenters objected to the proposed 2010 date for the next review of the hearing aid compatibility rules, although AT&T suggested that 2012 would be appropriate as well. The Commission therefore concludes to begin a further review of its hearing aid rules in 2010, after the May 2010 deployment benchmarks have passed. IV. Conclusion 78. In the *R&O,* the Commission adopts a number of inter-related changes to its wireless hearing aid compatibility rules, largely based on proposals in the Joint Consensus Plan. These changes update the requirements regarding deployment of hearing aid-compatible handsets, reporting, and outreach, as well as the standards by which hearing aid compatibility will be determined. The Commission concludes that the changes will improve access to wireless telecommunications services for persons with hearing disabilities, which continues to be a critical goal of the Commission as society increasingly relies on wireless services for social, business, and emergency communications. V. Procedural Matters A. Regulatory Flexibility Act 79. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared a Final Regulatory Flexibility Analysis
(FRFA)of the possible significant economic impact on small entities of the policies and rules addressed in the *R&O* . The FRFA is set forth in an appendix to the *R&O* . B. Congressional Review Act 80. The Commission will send a copy of the *R&O* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). C. Accessible Formats 81. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *FCC504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). VI. Final Regulatory Flexibility Analysis 82. As required by the RFA, the Commission included an Initial Regulatory Flexibility Analysis
(IRFA)of the possible significant economic impact on a substantial number of small entities of the policies and rules considered in the *NPRM* in WT Docket No. 07-250. The Commission sought written public comment on the *NPRM* in this docket, including comment on the IRFA. The FRFA conforms to the RFA. 83. Although Section 213 of the Consolidated Appropriations Act of 2000 provides that the RFA shall not apply to the rules and competitive bidding procedures for frequencies in the 746-806 MHz Band, the Commission believes that it would serve the public interest to analyze the possible significant economic impact of the proposed policy and rule changes in this band on small entities. Accordingly, this FRFA contains an analysis of this impact in connection with all spectrum that falls within the scope of the *R&O* , including spectrum in the 746-806 MHz Band. A. Need for, and Objectives of, the Rules 84. In the *R&O* , the Commission revises § 20.19 of the rules containing the hearing aid compatibility requirements applicable to providers of public mobile services and manufacturers of digital wireless handsets used in the delivery of those services. Specifically, the Commission adopts benchmark requirements for future deployment of hearing aid-compatible handsets, and related requirements, based on the proposals set forth in the *NPRM* and based on a Joint Consensus Plan developed by an ATIS working group that included nationwide carriers, handset manufacturers, and several organizations representing the interests of consumers with hearing loss. The Commission finds that these new handset deployment obligations for both manufacturers and service providers will ensure that its rules continue to be effective in an evolving marketplace of new technologies and services. Because service providers not in the Tier I category were not included in the Joint Consensus Plan, the Commission sought comment on and adopts in the *R&O* similar rule changes, with modified deadlines, for these entities. These requirements and deadlines are intended both to promote the accessibility of hearing aid-compatible handsets to all deaf and hard-of-hearing consumers, and to recognize the impediments to smaller and regional service providers obtaining the most recent handset models. In order to facilitate the continuing availability of a variety of hearing aid-compatible handset models to consumers, the Commission also adopts a requirement that manufacturers annually “refresh” their hearing aid-compatible offerings with new models, and a requirement that service providers offer hearing aid-compatible models with differing levels of functionality. The Commission further adopts an interim measure whereby phones with Wi-Fi capability that otherwise meet hearing aid compatibility standards may be counted as hearing aid-compatible, but the manufacturer and service provider must clearly disclose that they have not been rated with respect to their Wi-Fi operation. Finally, the Commission revises the annual reporting obligations of manufacturers and service providers. These amendments will, among other things, render the reports more useful to consumers who wish to know the compatibility ratings of different handset models that have been certified as hearing aid-compatible. In addition, to ensure the availability of such information on a more current basis to service providers and consumers wishing to offer or purchase hearing aid-compatible handsets, the Commission requires manufacturers and service providers to provide up-to-date information on their Web sites regarding their hearing aid-compatible handset models. 85. The Commission states that these inter-related changes, taken together and largely supported by manufacturers, service providers, and consumers with hearing loss, will further the statutory objective to “ensure reasonable access to telephone service by persons with impaired hearing.” 47 U.S.C. 610(a). Among other things, the Commission explains that the most disadvantaged wireless users in the deaf and hard-of-hearing community, who are more likely to rely on telecoil-equipped hearing aids, will benefit from rule changes that increase requirements to offer handsets with inductive coupling capability. The Commission further states that the requirements that manufacturers refresh their product offerings annually and that service providers offer hearing aid-compatible handset models at differing functionality levels will help to ensure that consumers with hearing loss have a variety of handsets available to them, including handsets with innovative user features, a goal that the Commission has sought to promote since 2003. Finally, the Commission notes its objective to ensure that the impact of the rules remains as technology-impartial as possible while also ensuring availability of hearing aid-compatible handsets to consumers. B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA 86. No comments specifically addressed the IRFA. Nonetheless, small entity issues raised in comments are addressed in the FRFA in sections D and E. C. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply 87. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the Small Business Administration (SBA). 88. *Wireless Communications Services.* This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses in the 2305-2320 MHz and 2345-2360 MHz bands. The Commission defined “small business” for the wireless communications services
(WCS)auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these definitions. The Commission auctioned geographic area licenses in the WCS service. In the auction, which commenced on April 15, 1997 and closed on April 25, 1997, there were seven bidders that won 31 licenses that qualified as very small business entities, and one bidder that won one license that qualified as a small business entity. 89. *700 MHz Guard Bands Licenses.* In the 700 MHz Guard Bands Order, the Commission adopted size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A small business in this service is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. SBA approval of these definitions is not required. An auction of 52 Major Economic Area
(MEA)licenses for each of two spectrum blocks commenced on September 6, 2000, and closed on September 21, 2000. Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of remaining 700 MHz Guard Bands licenses commenced on February 13, 2001, and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses. Subsequently, in the 700 MHz Second Report and Order, the Commission reorganized the licenses pursuant to an agreement among most of the licensees, resulting in a spectral relocation of the first set of paired spectrum block licenses, and an elimination of the second set of paired spectrum block licenses (many of which were already vacant, reclaimed by the Commission from Nextel). A single licensee that did not participate in the agreement was grandfathered in the initial spectral location for its two licenses in the second set of paired spectrum blocks. Accordingly, at this time there are 54 licenses in the 700 MHz Guard Bands and there is no auction data applicable to determine which are held by small businesses. 90. *700 MHz Band Commercial Licenses.* There is 80 megahertz of non-Guard Band spectrum in the 700 MHz Band that is designated for commercial use: 698-757, 758-763, 776-787, and 788-793 MHz Bands. With one exception, the Commission adopted criteria for defining two groups of small businesses for purposes of determining their eligibility for bidding credits at auction. These two categories are:
(1)“Small business,” which is defined as an entity that has attributed average annual gross revenues that do not exceed $40 million during the preceding three years; and
(2)“very small business,” which is defined as an entity with attributed average annual gross revenues that do not exceed $15 million for the preceding three years. In Block C of the Lower 700 MHz Band (710-716 MHz and 740-746 MHz), which was licensed on the basis of 734 Cellular Market Areas, the Commission adopted a third criterion for determining eligibility for bidding credits: An “entrepreneur,” which is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA has approved these small size standards. 91. An auction of 740 licenses for Blocks C (710-716 MHz and 740-746 MHz) and D (716-722 MHz) of the Lower 700 MHz Band commenced on August 27, 2002, and closed on September 18, 2002. Of the 740 licenses available for auction, 484 licenses were sold to 102 winning bidders. Seventy-two of the winning bidders claimed small business, very small business, or entrepreneur status and won a total of 329 licenses. A second auction commenced on May 28, 2003, and closed on June 13, 2003, and included 256 licenses: Five EAG licenses and 251 CMA licenses. Seventeen winning bidders claimed small or very small business status and won 60 licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses. 92. The auction for the remaining 62 megahertz of commercial spectrum began on January 24, 2008. A total of 214 applicants were found to be qualified bidders, of which 38 applicants claimed status as small businesses and 81 applicants claimed status as very small businesses. 93. *Government Transfer Bands.* The Commission adopted small business size standards for the unpaired 1390-1392 MHz, 1670-1675 MHz, and the paired 1392-1395 MHz and 1432-1435 MHz bands. Specifically, with respect to these bands, the Commission defined an entity with average annual gross revenues for the three preceding years not exceeding $40 million as a “small business,” and an entity with average annual gross revenues for the three preceding years not exceeding $15 million as a “very small business.” SBA has approved these small business size standards for the aforementioned bands. Correspondingly, the Commission adopted a bidding credit of 15 percent for “small businesses” and a bidding credit of 25 percent for “very small businesses.” This bidding credit structure was found to have been consistent with the Commission's schedule of bidding credits, which may be found at § 1.2110(f)(2) of the Commission's rules. The Commission found that these two definitions will provide a variety of businesses seeking to provide a variety of services with opportunities to participate in the auction of licenses for this spectrum and will afford such licensees, who may have varying capital costs, substantial flexibility for the provision of services. The Commission noted that it had long recognized that bidding preferences for qualifying bidders provide such bidders with an opportunity to compete successfully against large, well-financed entities. The Commission also noted that it had found that the use of tiered or graduated small business definitions is useful in furthering its mandate under Section 309(j) to promote opportunities for and disseminate licenses to a wide variety of applicants. An auction for one license in the 1670-1674 MHz band commenced on April 30, 2003 and closed the same day. One license was awarded. 94. *Advanced Wireless Services.* In the AWS-1 Report and Order, the Commission adopted rules that affect applicants who wish to provide service in the 1710-1755 MHz and 2110-2155 MHz bands. The Commission anticipated that the services that will be deployed in these bands may have capital requirements comparable to those in the broadband Personal Communications Service (PCS), and that the licensees in these bands will be presented with issues and costs similar to those presented to broadband PCS licensees. Further, at the time the broadband PCS service was established, it was similarly anticipated that it would facilitate the introduction of a new generation of service. Therefore, the AWS-1 Report and Order adopts the same small business size definition that the Commission adopted for the broadband PCS service and that the SBA approved. In particular, the AWS-1 Report and Order defines a “small business” as an entity with average annual gross revenues for the preceding three years not exceeding $40 million, and a “very small business” as an entity with average annual gross revenues for the preceding three years not exceeding $15 million. The AWS-1 Report and Order also provides small businesses with a bidding credit of 15 percent and very small businesses with a bidding credit of 25 percent. 95. *Wireless Cable Systems.* The SBA small business size standard for the broad census category of “Wireless Telecommunications Carriers-except satellite” appears applicable to MDS, ITFS and LMDS. The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees. Wireless cable systems use 2 GHz band frequencies of the Broadband Radio Service (“BRS”), formerly Multipoint Distribution Service (“MDS”), and the Educational Broadband Service (“EBS”), formerly Instructional Television Fixed Service (“ITFS”), to transmit video programming and provide broadband services to residential subscribers. These services were originally designed for the delivery of multichannel video programming, similar to that of traditional cable systems, but over the past several years licensees have focused their operations instead on providing two-way high-speed Internet access services. The Commission estimates that the number of wireless cable subscribers is approximately 100,000, as of March 2005. Local Multipoint Distribution Service (“LMDS”) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. The SBA small business size standard for the broad census category of Wireless Telecommunications Carriers appears applicable to MDS, ITFS and LMDS. To gauge small business prevalence for MDS, ITFS and LMDS, the Commission must use current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: All such firms having $13.5 million or less in annual receipts. This data was gathered when Cable and Other Program Distribution was the applicable NAICS Code size standard under SBA. 96. The Commission has defined small MDS (now BRS) and LMDS entities in the context of Commission license auctions. In the 1996 MDS auction, the Commission defined a small business as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. This definition of a small entity in the context of MDS auctions has been approved by the SBA. In the MDS auction, 67 bidders won 493 licenses. Of the 67 auction winners, 61 claimed status as a small business. At this time, the Commission estimates that of the 61 small business MDS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent MDS licensees that have gross revenues that are not more than $40 million and are thus considered small entities. MDS licensees and wireless cable operators that did not receive their licenses as a result of the MDS auction fall under the SBA small business size standard for Cable and Other Program Distribution. Information available to us indicates that there are approximately 850 of these licensees and operators that do not generate revenue in excess of $13.5 million annually. Therefore, the Commission estimates that there are approximately 850 small entity MDS (or BRS) providers, as defined by the SBA and the Commission's auction rules. 97. Educational institutions are included in this analysis as small entities; however, the Commission has not created a specific small business size standard for ITFS (now EBS). The Commission estimates that there are currently 2,032 ITFS (or EBS) licensees, and all but 100 of the licenses are held by educational institutions. Thus, the Commission estimates that at least 1,932 ITFS licensees are small entities. 98. In the 1998 and 1999 LMDS auctions, the Commission defined a small business as an entity that has annual average gross revenues of less than $40 million in the previous three calendar years. Moreover, the Commission added an additional classification for a “very small business,” which was defined as an entity that had annual average gross revenues of less than $15 million in the previous three calendar years. These definitions of “small business” and “very small business” in the context of the LMDS auctions have been approved by the SBA. In the first LMDS auction, 104 bidders won 864 licenses. Of the 104 auction winners, 93 claimed status as small or very small businesses. In the LMDS re-auction, 40 bidders won 161 licenses. Based on this information, the Commission believes that the number of small LMDS licenses will include the 93 winning bidders in the first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers as defined by the SBA and the Commission's auction rules. 99. *Cellular Licensees.* The SBA has developed a small business size standard for small businesses in the category “Wireless Telecommunications Carriers (except satellite).” Under that SBA category, a business is small if it has 1,500 or fewer employees. For the census category of “Cellular and Other Wireless Telecommunications,” Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this category and size standard, the majority of firms can be considered small. 100. *Broadband Personal Communications Service.* The broadband Personal Communications Service
(PCS)spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission has created a small business size standard for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years. For Block F, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 “small” and “very small” business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders. On January 26, 2001, the Commission completed the auction of 422 C and F PCS licenses in Auction 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. 101. *Specialized Mobile Radio.* The Commission awards “small entity” bidding credits in auctions for Specialized Mobile Radio
(SMR)geographic area licenses in the 800 MHz and 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years. The Commission awards “very small entity” bidding credits to firms that had revenues of no more than $3 million in each of the three previous calendar years. The SBA has approved these small business size standards for the 900 MHz Service. The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5, 1995, and closed on April 15, 1996. Sixty bidders claiming that they qualified as small businesses under the $15 million size standard won 263 geographic area licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper 200 channels began on October 28, 1997, and was completed on December 8, 1997. Ten bidders claiming that they qualified as small businesses under the $15 million size standard won 38 geographic area licenses for the upper 200 channels in the 800 MHz SMR band. A second auction for the 800 MHz band was held on January 10, 2002 and closed on January 17, 2002 and included 23 BEA licenses. One bidder claiming small business status won five licenses. 102. The auction of the 1,050 800 MHz SMR geographic area licenses for the General Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard. In an auction completed on December 5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were sold. Of the 22 winning bidders, 19 claimed “small business” status and won 129 licenses. Thus, combining all three auctions, 40 winning bidders for geographic licenses in the 800 MHz SMR band claimed status as small business. 103. In addition, there are numerous incumbent site-by-site SMR licensees and licensees with extended implementation authorizations in the 800 and 900 MHz bands. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million, or have no more than 1,500 employees. One firm has over $15 million in revenues. The Commission believes, for purposes of this analysis, that all of the remaining existing extended implementation authorizations are held by small entities, as that small business size standard is established by the SBA. 104. *Rural Radiotelephone Service.* The Commission uses the SBA definition applicable to Wireless Telecommunications Carriers (except satellite),” i.e., an entity employing no more than 1,500 persons. There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies adopted herein. 105. *Air-Ground Radiotelephone Service.* The Commission uses the SBA definition applicable to Wireless Telecommunications Carriers (except satellite),” *i.e.* , an entity employing no more than 1,500 persons. There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and the Commission estimates that almost all of them qualify as small entities under the SBA definition. 106. *Offshore Radiotelephone Service.* This service operates on several ultra high frequency
(UHF)TV broadcast channels that are not used for TV broadcasting in the coastal area of the states bordering the Gulf of Mexico. At present, there are approximately 55 licensees in this service. The Commission uses the SBA definition applicable to Wireless Telecommunications Carriers (except satellite),” *i.e.* , an entity employing no more than 1,500 persons. The Commission is unable at this time to estimate the number of licensees that would qualify as small entities under the SBA definition. The Commission assumes, for purposes of this analysis, that all of the 55 licensees are small entities, as that term is defined by the SBA. 107. *Mobile Satellite Service Carriers.* Neither the Commission nor the U.S. Small Business Administration has developed a small business size standard specifically for mobile satellite service licensees. The appropriate size standard is therefore the SBA standard for Satellite Telecommunications, which provides that such entities are small if they have $13.5 million or less in annual revenues. Currently, the Commission's records show that there are 31 entities authorized to provide voice and data MSS in the United States. The Commission does not have sufficient information to determine which, if any, of these parties are small entities. The Commission notes that small businesses are not likely to have the financial ability to become MSS system operators because of high implementation costs, including construction of satellite space stations and rocket launch, associated with satellite systems and services. 108. *Wireless Communications Equipment Manufacturers.* The SBA has established a small business size standard for wireless communications equipment manufacturers. Under the Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing standard, firms are considered small if they have 750 or fewer employees. Census Bureau data for 1997 indicates that, for that year, there were a total of 1,215 establishments in this category. Of those, there were 1,150 that had employment under 500, and an additional 37 that had employment of 500 to 999. The Commission estimates that the majority of wireless communications equipment manufacturers are small businesses. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 109. The Commission adopts reporting and outreach requirements that will involve some recordkeeping and other compliance requirements for small entities. Under the decision in the *R&O* , manufacturers and service providers, including those that are small entities, will continue to file regular reports with the Commission detailing their hearing aid compatibility efforts. In order to improve the existing reports for consumers and industry and meet the Commission's hearing aid compatibility objectives (see section A), however, the Commission adopts new content requirements for these reports. The Commission also adopts a new outreach obligation for manufacturers and service providers that maintain public Web sites to post up-to-date information involving some of this content, and to report and keep updated to the Commission a working link to the web location at which this information is posted. Finally, because many handset models are currently being offered that operate over both established CMRS interfaces and the Wi-Fi air interface for which no established hearing aid compatibility standards exist, the Commission allows such phones on an interim basis to be counted as hearing aid-compatible if they otherwise qualify as hearing aid-compatible under its rules, but requires consumers to be informed that those phones have not been rated for hearing aid compatibility with respect to their Wi-Fi operations. Section E summarizes additional detail about these reporting and outreach requirements that the Commission adopts in the *R&O* . 110. The projected reporting, recordkeeping, and other compliance requirements resulting from the *R&O* will apply to all entities in the same manner. As discussed in section E, the Commission finds that applying the same rules equally to all entities in this context promotes fairness. The Commission does not believe that the costs and/or administrative burdens associated with the rules will unduly burden small entities. Moreover, any costs and burdens assumed by small entities will be offset by the benefits obtained by consumers. The revisions the Commission adopts should benefit consumers by giving them more information and more options for gaining access to hearing aid compatibility information. E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 111. The RFA requires an agency to describe in the IRFA any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives:
(1)The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities;
(3)the use of performance, rather than design, standards; and
(4)an exemption from coverage of the rule, or any part thereof, for small entities. The Commission considered these alternatives with respect to all of the requirements that it is imposing on small entities in the *R&O,* and this FRFA incorporates by reference all discussion in the *R&O* that considers the impact on small entities of the rules adopted by the Commission. In addition, the Commission's consideration of those issues as to which the impact on small entities was specifically discussed in the record is summarized as follows: 112. *Hearing Aid-Compatible Handset Deployment Benchmarks and Deadlines.* In accordance with its objective of furthering the availability of hearing aid-compatible handsets to the deaf and hard-of-hearing community, the Commission considered several different proposals for handset deployment benchmarks and deadlines. These alternatives balanced several different approaches to improving wireless services for deaf and hard-of-hearing consumers. For example, the Commission considered the possibility of applying to small entities different benchmarks for offering handset models meeting M3 and T3 (or higher) hearing aid compatibility ratings. Six parties representing regional or smaller service providers submitted comments in favor of lower benchmarks for smaller service providers. 113. Ultimately, the Commission adopted identical benchmark alternatives for all manufacturers and all service providers (including small manufacturers and service providers). The Commission decided on a single set of deployment benchmark alternatives for all service providers (other than those coming under the *de minimis* exception) in accordance with its objective of furthering the availability of hearing aid-compatible handsets for all consumers regardless of where they reside. Under these alternatives for both M3 and T3 ratings, service providers may meet hearing aid compatibility standards for either a minimum number or minimum percentage of the handset models that they offer, whichever is less. Thus, under the percentage alternative, service providers with smaller product lines, including many small entities, are relieved of the burden of having to offer larger numbers of hearing aid-compatible models required of larger service providers. The Commission considered the alternative of reducing the benchmarks still further for smaller service providers, but determined that the increased relief of burdens that would be achieved by doing so was outweighed by the public interest in ensuring availability of hearing aid-compatible handsets to all consumers who need them, which is the primary objective of this proceeding. 114. In addition, to minimize the economic burden to service providers that are small entities, the Commission extended future hearing aid compatibility compliance deadlines for non-nationwide service providers by three months. The Commission provided this additional time in recognition that smaller service providers have few handset options and more difficulty in obtaining the newest offerings than their nationwide counterparts. In reaching this decision, the Commission considered and rejected other alternatives. In particular, five non-nationwide carriers submitted comments asking for extended deadlines of six months to one year following Tier I carriers' deadlines. The Commission did not agree with the extension of deadlines beyond three months, because it determined that such action would amount to an unacceptable and unnecessary denial of handset benefits to consumers. The Commission noted that the extension of three months is consistent with past orders where it has found that many smaller service providers justified waivers of approximately three months from prior hearing aid compatibility deadlines, but denied most requests for longer periods of delay. 115. In considering these deployment benchmarks and deadlines, the Commission also adopted the proposal of the Joint Consensus plan to retain the existing *de minimis* exception. Under this exception, manufacturers and service providers that offer two or fewer digital wireless handset models in the U.S. per air interface are exempt from hearing aid compatibility requirements (other than certain reporting requirements), and those offering three handset models per air interface are required to offer one hearing aid-compatible model. The Commission kept this rule, which minimizes economic impact on certain small entities, in recognition that exempting from hearing aid compatibility requirements all companies with very small product lines promotes innovation and competition. 116. *Other Hearing Aid-Compatible Handset Deployment Obligations.* In addition to handset deployment benchmarks and deadlines, the Commission adopted rules requiring handset manufacturers to refresh their hearing aid-compatible product offerings annually, and requiring service providers to offer to consumers hearing aid-compatible handsets with differing levels of functionality. The objective of these rules is to ensure that hearing aid users can select from a variety of compliant handset models, with varying features and prices. In adopting these rules, the Commission considered comments of several smaller service providers that the requirement to offer compatible models with differing levels of functionality is unnecessary and intrusive as applied to non-nationwide service providers. In response, the Commission acknowledged that it does not expect a service provider with four hearing aid-compatible models, for example, necessarily to offer as many levels of functionality or as broad a range of product offerings as a provider with eight or more models. Therefore, the Commission crafted the rule to afford service providers flexibility to define their levels of functionality in a manner appropriate to their situation. Nonetheless, the Commission determined that even the smallest service providers should be able to distinguish among their offerings in some manner, and that requiring them to do so offers benefits to consumers that outweigh the relatively small burden on small entities. 117. *Reporting, Information, and Outreach.* As noted in section D, the Commission adopted reporting and other compliance requirements that will apply to all entities irrespective of their size. The *R&O* requires manufacturers and all service providers to file reports annually. This requirement to file annual reports continues a requirement that exists under the current rules. However, the *R&O* adds new required content to the reports, including:
(1)Model name/numbers and FCC ID numbers;
(2)the air interfaces and frequency bands over which each model operates;
(3)information regarding handset models offered throughout the period since the previous report, including the months during which each model was available; and
(4)for service providers, their models' levels of functionality and their methodology for dividing hearing aid-compatible handset models into different levels of functionality. 118. The Commission in the past has stated that annual hearing aid compatibility reports serve a dual purpose of assisting the Commission in monitoring handset deployment progress and providing valuable information to the public concerning the technical testing and commercial availability of hearing aid compatible handsets for consumers. The new content requirements in the *R&O* will result in better information to the Commission and to consumers. Some comments on the *NPRM* asserted that additional reporting requirements would be burdensome, particularly to smaller service providers, and the Commission considered whether any alternatives could serve consumers' needs in a manner less burdensome to small entities. As the Commission found, however, all of the information to be included in the reports is either within the service provider's control or can be readily gathered from manufacturers' Web sites or their previous reports. Thus, the Commission found that these reports will not impose any unreasonable burden on manufacturers and service providers, whether large or small. Furthermore, in order to ensure proper implementation of the hearing aid compatibility rules and to consumers, the Commission found it extremely important to obtain the information in question from all service providers without exception. Accordingly, the Commission found that other alternatives would not provide it with the information necessary to accomplish its objectives. 119. The Commission also considered whether, as advocated by one commenter, the initial reports under the new rules should be delayed by one year for service providers that are not Tier I carriers. The Commission found that this proposal would create an unacceptable and unnecessary gap in the availability of information. Moreover, in order to ease the burden of compliance for all manufacturers and service providers, the Commission determined not to require the next reports from any entities until January 15, 2009. 120. The Commission further authorized the Wireless Telecommunications Bureau to prescribe a uniform template for the annual reports and require electronic filing. The Commission considered whether to allow regulated entities, including small entities, alternatively to use a narrative format. To assist the Commission and consumers in understanding and analyzing the reports, it concluded that a uniform, electronic format will not impose a significant increase in economic burdens. 121. In addition to regular reporting, the *R&O* will require manufacturers and service providers that have public Web sites to post certain information, including the hearing aid-compatible handset models that they offer, the ratings of those models, an explanation of the rating system, and, for service providers, those models' levels of functionality and their methodology for determining levels of functionality. This information must be kept current within 30 days. In addition, service providers must include this web address in their reports to the Commission, and inform the Commission within 30 days if the address ceases to be functional. As with the annual reports, the Commission considered whether it could adopt less burdensome requirements for small entities, and concluded that it needed to impose the same requirements on all manufacturers and service providers to serve the purpose of providing critical information to all consumers. Moreover, because all of the information to be posted is also required in the reports to the Commission or in packaging inserts, the burden of maintaining it on the Web site should be small. Finally, as with the reports, the Commission eased the burden of coming into compliance for all entities by delaying the effective date of this requirement until January 15, 2009. 122. *Final Regulatory Flexibility Certification
(FRFC)for Order on Reconsideration and Erratum.* The modifications in the *Recon* to the Commission process for approving new versions of the hearing aid compatibility technical standard do not place any new burdens on small entities. Therefore, the Commission certifies, pursuant to Section 605(b) of the RFA, that the action taken in the *Recon* will not have a significant economic impact on a substantial number of small entities. F. Report to Congress 123. The Commission will send a copy of the *R&O,* including the FRFA, and a copy of the *Recon,* including the FRFC, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the *R&O,* including the FRFA, and a copy of the *Recon,* including the FRFC, to the Chief Counsel for Advocacy of the SBA. Copies of the *R&O* and FRFA and the *Recon* and FRFC (or summaries thereof) are also being published in the **Federal Register** . VII. Ordering Clauses 124. *It is ordered* that, pursuant to the authority of Sections 4(i), 303(r), and 710 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 610, the *R&O* is hereby adopted. 125. *It is further ordered* that parts 0, 20 and 68 of the Commission's Rules, 47 CFR parts 0, 20 and 68, are amended as specified in an Appendix to the *R&O,* effective June 6, 2008. 126. *It is further ordered* that the information collections contained in the *R&O will become effective* following approval by the Office of Management and Budget. The Commission will publish a document at a later date establishing the effective date. 127. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the *R&O,* including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. 128. *It is further ordered* that, pursuant to the authority of Sections 4(i), 303(r), and 710 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 610, and Section 1.108 of the Commission's rules, 47 CFR 1.108, the *Recon* is hereby adopted. 129. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the *Recon* , including the FRFC, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects 47 CFR Part 0 Organization and functions (government agencies). 47 CFR Part 20 Communications common carriers, Communications equipment. Incorporation by Reference. 47 CFR Part 68 Administrative practice and procedure. Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 0, 20, and 68 as follows: PART 0—COMMISSION ORGANIZATION 1. The authority citation for part 0 continues to read as follows: Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155. 2. Section 0.241 is amended by revising paragraph (a)(1) to read as follows: § 0.241 Authority delegated.
(a)* * *
(1)Notices of proposed rulemaking and of inquiry and final orders in rulemaking proceedings, inquiry proceedings and non-editorial orders making changes, except that the Chief of the Office of Engineering and Technology is delegated authority, together with the Chief of the Wireless Telecommunications Bureau, to adopt certain technical standards applicable to hearing aid compatibility under § 20.19 of this chapter, as specified in § 20.19(k). 3. Section 0.331 is amended by adding a new sentence after the second sentence in paragraph
(d)introductory text to read as follows: § 0.331 Authority delegated.
(d)* * * Adoption of certain technical standards applicable to hearing aid compatibility under § 20.19 of this chapter made together with the Chief of the Office of Engineering and Technology, as specified in § 20.19(k) of this chapter, also need not be referred to the Commission. * * * PART 20—COMMERCIAL MOBILE RADIO SERVICES 4. The authority citation for part 20 continues to read as follows: Authority: 47 U.S.C. 154, 160, 201, 251-254, 303, 332, and 710 unless otherwise noted. 5. Section 20.19 is revised to read as follows: § 20.19 Hearing aid-compatible mobile handsets.
(a)Scope of section; definitions.
(1)The hearing aid compatibility requirements of this section apply to providers of digital CMRS in the United States to the extent that they offer real-time, two-way switched voice or data service that is interconnected with the public switched network and utilizes an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless hand-offs of subscriber calls, and such service is provided over frequencies in the 800-950 MHz or 1.6-2.5 GHz bands using any air interface for which technical standards are stated in the standard document “American National Standard Methods of Measurement of Compatibility Between Wireless Communication Devices and Hearing Aids,” American National Standards Institute
(ANSI)C63.19-2007 (June 8, 2007).
(2)The requirements of this section also apply to the manufacturers of the wireless handsets that are used in delivery of the services specified in paragraph (a)(1) of this section.
(3)*Definitions* . For purposes of this section:
(i)*Manufacturer* refers to a wireless handset manufacturer to which the requirements of this section apply.
(ii)*Model* refers to a wireless handset device that a manufacturer has designated as a distinct device model, consistent with its own marketing practices. However, if a manufacturer assigns different model device designations solely to distinguish units sold to different carriers, or to signify other distinctions that do not relate to either form, features, or capabilities, such designations shall not count as distinct models for purposes of this section.
(iii)*Service provider* refers to a provider of digital CMRS to which the requirements of this section apply.
(iv)*Tier I carrier* refers to a CMRS provider that offers such service nationwide.
(b)*Hearing aid compatibility; technical standards.* A wireless handset used for digital CMRS only over the frequency bands and air interfaces referenced in paragraph (a)(1) of this section is hearing aid-compatible with regard to radio frequency interference or inductive coupling if it meets the applicable technical standard(s) set forth in paragraphs (b)(1) and (b)(2) of this section for all frequency bands and air interfaces over which it operates, and the handset has been certified as compliant with the test requirements for the applicable standard pursuant to § 2.1033(d) of this chapter. A wireless handset that incorporates a Wi-Fi air interface is hearing aid-compatible if the handset otherwise satisfies the requirements of this paragraph.
(1)For radio frequency interference.
(i)*Applicable technical standards prior to 2010.* Beginning June 6, 2008 and until January 1, 2010, a wireless handset submitted for equipment certification or for a permissive change relating to hearing aid compatibility must meet, at a minimum, the M3 rating associated with the technical standard set forth in either the standard document “American National Standard Methods of Measurement of Compatibility Between Wireless Communication Devices and Hearing Aids,” ANSI C63.19-2006 (June 12, 2006) or ANSI C63.19-2007 (June 8, 2007)—each available for purchase from the American National Standards Institute. Any grants of certification issued before June 6, 2008 under previous versions of ANSI C63.19 remain valid for hearing aid compatibility purposes.
(ii)*Applicable technical standards beginning in 2010.* On or after January 1, 2010, a wireless handset submitted for equipment certification or for a permissive change relating to hearing aid compatibility must meet, at a minimum, the M3 rating associated with the technical standard set forth in ANSI C63.19-2007 (June 8, 2007). Any grants of certification issued before January 1, 2010, under the earlier versions of ANSI C63.19 remain valid for hearing aid compatibility purposes.
(2)For inductive coupling.
(i)*Applicable technical standards prior to 2010.* Beginning June 6, 2008 and until January 1, 2010, a wireless handset submitted for equipment certification or for a permissive change relating to hearing aid compatibility must meet, at a minimum, the T3 rating associated with the technical standard set forth in either the standard document “American National Standard Methods of Measurement of Compatibility Between Wireless Communication Devices and Hearing Aids,” ANSI C63.19-2006 (June 12, 2006) or ANSI C63.19-2007 (June 8, 2007). Any grants of certification issued before June 6, 2008 under previous versions of ANSI C63.19 remain valid for hearing aid compatibility purposes.
(ii)*Applicable technical standards beginning in 2010.* On or after January 1, 2010, a wireless handset submitted for equipment certification or for a permissive change relating to hearing aid compatibility must meet, at a minimum, the T3 rating associated with the technical standard set forth in ANSI C63.19-2007 (June 8, 2007). Any grants of certification issued before January 1, 2010, under the earlier versions of ANSI C63.19 remain valid for hearing aid compatibility purposes.
(3)[Reserved].
(4)All factual questions of whether a wireless handset meets the technical standard(s) of this paragraph shall be referred for resolution to the Chief, Office of Engineering and Technology, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
(5)The following standards are incorporated by reference in this section: American National Standards Institute Accredited Standards Committee on Electromagnetic Compatibility, C63 TM , “American National Standard Methods of Measurement of Compatibility Between Wireless Communication Devices and Hearing Aids,” ANSI C63.19-2006 (June 12, 2006), Institute of Electrical and Electronics Engineers, Inc., publisher; and American National Standards Institute Accredited Standards Committee on Electromagnetic Compatibility, C63 TM , “American National Standard Methods of Measurement of Compatibility Between Wireless Communication Devices and Hearing Aids,” ANSI C63.19-2007 (June 8, 2007), Institute of Electrical and Electronics Engineers, Inc., publisher. These incorporations by reference were approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are incorporated as they exist on the date of the approval, and notice of any change in these materials will be published in the **Federal Register** . The materials are available for inspection at the Federal Communications Commission (FCC), 445 12th St., SW., Reference Information Center, Room CY-A257, Washington, DC 20554 and at the National Archives and Records Administration (NARA). For information on the availability of these materials at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . The materials are also available for purchase from IEEE Operations Center, 445 Hoes Lane, Piscataway, NJ 08854-4141, by calling
(732)981-0060, or going to *http://www.ieee.org/portal/site* .
(c)*Phase-in of requirements relating to radio frequency interference.* The following applies to each manufacturer and service provider that offers wireless handsets used in the delivery of the services specified in paragraph
(a)of this section and that does not fall within the *de minimis* exception set forth in paragraph
(e)of this section.
(1)*Manufacturers.*
(i)*Number of hearing aid-compatible handset models offered.* For each digital air interface for which it offers wireless handsets to service providers, each manufacturer of wireless handsets must:
(A)If it offers four to six models, ensure that at least two of its handset models offered to service providers comply with the requirements set forth in paragraph (b)(1) of this section; or
(B)If it offers more than six models, ensure that at least one-third of its handset models offered to service providers (rounded down to the nearest whole number) comply with the requirements set forth in paragraph (b)(1) of this section.
(ii)*Refresh requirement.* Beginning in calendar year 2009, and for each year thereafter that it elects to produce a new model, each manufacturer that offers any new model for a particular air interface during the calendar year must “refresh” its offerings of hearing aid-compatible handset models by offering a mix of new and existing models that comply with paragraph (b)(1) of this section according to the following requirements:
(A)For manufacturers that offer three models per air interface, at least one new model rated M3 or higher shall be introduced every other calendar year.
(B)For manufacturers that offer four or more models operating over a particular air interface, the number of models rated M3 or higher that must be new models introduced during that calendar year is equal to one-half of the minimum number of models rated M3 or higher required for that air interface (rounded up to the nearest whole number).
(2)*Tier I carriers.* For each digital air interface for which it offers wireless handsets to customers, each Tier I carrier must either:
(i)Ensure that at least fifty
(50)percent of the handset models it offers comply with paragraph (b)(1) of this section, calculated based on the total number of unique digital wireless handset models the carrier offers nationwide; or
(ii)Ensure that it offers, at a minimum, the following specified number of handset models that comply with paragraph (b)(1) of this section:
(A)Prior to February 15, 2009, at least eight
(8)handset models;
(B)Beginning February 15, 2009, at least nine
(9)handset models; and
(C)Beginning February 15, 2010, at least ten
(10)handset models.
(3)*Service providers other than Tier I carriers.* For each digital air interface for which it offers wireless handsets to customers, each service provider other than a Tier I carrier must:
(i)Prior to September 7, 2008, include in the handset models it offers at least two handset models that comply with paragraph (b)(1) of this section;
(ii)Beginning September 7, 2008, either:
(A)Ensure that at least fifty
(50)percent of the handset models it offers comply with paragraph (b)(1) of this section, calculated based on the total number of unique digital wireless handset models the service provider offers nationwide; or
(B)Ensure that it offers, at a minimum, the following specified number of handset models that comply with paragraph (b)(1) of this section: ( *1* ) Until May 15, 2009, at least eight
(8)handset models; ( *2* ) Beginning May 15, 2009, at least nine
(9)handset models; and ( *3* ) Beginning May 15, 2010, at least ten
(10)handset models.
(4)*All service providers.* The following requirements apply to Tier I carriers and all other service providers.
(i)*In-store testing.* Each service provider must make available for consumers to test, in each retail store owned or operated by the provider, all of its handset models that comply with paragraph (b)(1) of this section.
(ii)*Offering models with differing levels of functionality.* Each service provider must offer its customers a range of hearing aid-compatible models with differing levels of functionality ( *e.g.* , operating capabilities, features offered, prices). Each provider may determine the criteria for determining these differing levels of functionality, and must disclose its methodology to the Commission pursuant to paragraph (i)(3)(vii) of this section.
(d)*Phase-in of requirements relating to inductive coupling capability.* The following applies to each manufacturer and service provider that offers wireless handsets used in the delivery of the services specified in paragraph
(a)of this section and that does not fall within the *de minimis* exception set forth in paragraph
(e)of this section.
(1)*Manufacturers.* Each manufacturer offering to service providers four or more handset models in a digital air interface for use in the United States or imported for use in the United States must ensure that it offers to service providers, at a minimum, the following number of handset models that comply with the requirements set forth in paragraph (b)(2) of this section, whichever number is greater in any given year:
(i)At least two
(2)handset models in that air interface; or
(ii)At least the following percentage of handset models (rounded down to the nearest whole number):
(A)Beginning February 15, 2009, at least twenty
(20)percent of its handset models in that air interface, provided that, of any such models introduced during calendar year 2009, one model may be rated using ANSI C63.19-2006 (June 12, 2006), and all other models introduced during that year or subsequent years shall be rated using ANSI C63.19-2007 (June 8, 2007) or subsequently adopted version as may be approved pursuant to paragraph (k);
(B)Beginning February 15, 2010, at least twenty-five
(25)percent of its handset models in that air interface; and
(C)Beginning February 15, 2011, at least one-third of its handset models in that air interface.
(2)*Tier I carriers.* For each digital air interface for which it offers wireless handsets to service providers, each Tier I carrier must:
(i)Ensure that at least one-third of the handset models it offers comply with paragraph (b)(2) of this section, calculated based on the total number of unique digital wireless handset models the carrier offers nationwide; or
(ii)Ensure that it offers, at a minimum, the following specified number of handset models that comply with paragraph (b)(2) of this section:
(A)Prior to February 15, 2009, at least three
(3)handset models;
(B)Beginning February 15, 2009, at least five
(5)handset models;
(C)Beginning February 15, 2010, at least seven
(7)handset models; and
(D)Beginning February 15, 2011, at least ten
(10)handset models.
(3)*Service providers other than Tier I carriers.* For each digital air interface for which it offers wireless handsets to customers, each service provider other than a Tier I carrier must:
(i)Prior to September 7, 2008, include in the handset models it offers at least two handset models that comply with paragraph (b)(2) of this section;
(ii)Beginning September 7, 2008, either:
(A)Ensure that at least one-third of the handset models it offers comply with paragraph (b)(2) of this section, calculated based on the total number of unique digital wireless handset models the carrier offers nationwide; or
(B)Ensure that it offers, at a minimum, the following specified number of handset models that comply with paragraph (b)(2) of this section: ( *1* ) Until May 15, 2009, at least three
(3)handset models; ( *2* ) Beginning May 15, 2009, at least five
(5)handset models; ( *3* ) Beginning May 15, 2010, at least seven
(7)handset models; and ( *4* ) Beginning May 15, 2011, at least ten
(10)handset models.
(4)*All service providers.* The following requirements apply to Tier I carriers and all other service providers.
(i)*In-store testing.* Each service provider must make available for consumers to test, in each retail store owned or operated by the provider, all of its handset models that comply with paragraph (b)(2) of this section.
(ii)*Offering models with differing levels of functionality.* Each service provider must offer its customers a range of hearing aid-compatible models with differing levels of functionality ( *e.g.* , operating capabilities, features offered, prices). Each provider may determine the criteria for determining these differing levels of functionality, and must disclose its methodology to the Commission pursuant to paragraph (i)(3)(vii) of this section.
(e)*De minimis exception.*
(1)Manufacturers or service providers that offer two or fewer digital wireless handsets in an air interface in the United States are exempt from the requirements of this section in connection with that air interface, except with regard to the reporting requirements in paragraph
(i)of this section. Service providers that obtain handsets only from manufacturers that offer two or fewer digital wireless handset models in an air interface in the United States are likewise exempt from the requirements of this section other than paragraph
(i)of this section in connection with that air interface.
(2)Manufacturers or service providers that offer three digital wireless handset models in an air interface must offer at least one handset model compliant with paragraphs (b)(1) and (b)(2) of this section in that air interface. Service providers that obtain handsets only from manufacturers that offer three digital wireless handset models in an air interface in the United States are required to offer at least one handset model in that air interface compliant with paragraphs (b)(1) and (b)(2) of this section.
(f)*Labeling and disclosure requirements.*
(1)*Labeling requirements.* Manufacturers and service providers shall ensure that handsets that are hearing aid-compatible, as defined in paragraph
(b)of this section, clearly display the rating, as defined in paragraphs (b)(1) and (b)(2) of this section, on the packaging material of the handset. In the event that a hearing aid-compatible handset achieves different radio interference or inductive coupling ratings over different air interfaces or different frequency bands, the RF interference reduction and inductive coupling capability ratings displayed shall be the lowest rating assigned to that handset for any air interface or frequency band. An explanation of the ANSI C63.19 rating system must also be included in the device's user's manual or as an insert in the packaging material for the handset.
(2)*Disclosure requirement relating to handsets with Wi-Fi capability.* Beginning December 7, 2008, each manufacturer and service provider shall ensure that, wherever it provides hearing aid compatibility ratings for a handset model that incorporates a Wi-Fi air interface, it discloses to consumers, by clear and effective means ( *e.g.* , inclusion of call-out cards or other media, revisions to packaging materials, supplying of information on Web sites) that the handset has not been rated for hearing aid compatibility with respect to Wi-Fi operation.
(g)*Model designation requirements.* Where a manufacturer has made physical changes to a handset that result in a change in the hearing aid compatibility rating under paragraph (b)(1) or (b)(2) of this section, the altered handset must be given a model designation distinct from that of the handset prior to its alteration.
(h)*Web site requirements.* Beginning January 15, 2009, each manufacturer and service provider subject to this section that operates a publicly-accessible Web site must make available on its Web site a list of all hearing aid-compatible models currently offered, the ratings of those models, and an explanation of the rating system. Each service provider must also specify on its Web site, based on the levels of functionality that the service provider has defined, the level that each hearing aid-compatible model falls under as well as an explanation of how the functionality of the handsets varies at the different levels.
(i)*Reporting requirements.*
(1)*Reporting dates.* Manufacturers shall submit reports on efforts toward compliance with the requirements of this section on January 15, 2009 and on July 15, 2009, and on an annual basis on July 15 thereafter. Service providers shall submit reports on efforts toward compliance with the requirements of this section on January 15, 2009, and annually thereafter. Information in the reports must be up-to-date as of the last day of the calendar month preceding the due date of the report.
(2)*Content of manufacturer reports.* Reports filed by manufacturers must include:
(i)Digital wireless handset models tested, since the most recent report, for compliance with the applicable hearing aid compatibility technical ratings;
(ii)Compliant handset models offered to service providers since the most recent report, identifying each model by marketing model name/number(s) and FCC ID number;
(iii)For each compliant model, the air interface(s) and frequency band(s) over which it operates, the hearing aid compatibility ratings for each frequency band and air interface under ANSI Standard C63.19, the ANSI Standard C63.19 version used, and the months in which the model was available to service providers since the most recent report;
(iv)Non-compliant models offered to service providers since the most recent report, identifying each model by marketing model name/number(s) and FCC ID number;
(v)For each non-compliant model, the air interface(s) over which it operates and the months in which the model was available to service providers since the most recent report;
(vi)Total numbers of compliant and non-compliant models offered to service providers for each air interface as of the time of the report;
(vii)Any instance, as of the date of the report or since the most recent report, in which multiple compliant or non-compliant devices were marketed under separate model name/numbers but constitute a single model for purposes of the hearing aid compatibility rules, identifying each device by marketing model name/number and FCC ID number;
(viii)Status of product labeling;
(ix)Outreach efforts; and
(x)If the manufacturer maintains a public Web site, the Web site address of the page(s) containing the information regarding hearing aid-compatible handset models required by paragraph
(h)of this section. Note to Paragraph (i)(2): For reports due on January 15, 2009, information provided with respect to paragraphs (i)(2)(ii) through(i)(2)(v) and (i)(2)(vii) and (i)(2)(viii) need be provided only for the six-month period from July 1 to December 31, 2008.
(3)*Content of service provider reports.* Reports filed by service providers must include:
(i)Compliant handset models offered to customers since the most recent report, identifying each model by marketing model name/number(s) and FCC ID number;
(ii)For each compliant model, the air interface(s) and frequency band(s) over which it operates, the hearing aid compatibility ratings for each frequency band and air interface under ANSI Standard C63.19, and the months in which the model was available since the most recent report;
(iii)Non-compliant models offered since the most recent report, identifying each model by marketing model name/number(s) and FCC ID number;
(iv)For each non-compliant model, the air interface(s) over which it operates and the months in which the model was available since the most recent report;
(v)Total numbers of compliant and non-compliant models offered to customers for each air interface over which the service provider offers service as of the time of the report;
(vi)Information related to the retail availability of compliant handset models;
(vii)The levels of functionality into which the compliant handsets fall and an explanation of the service provider's methodology for determining levels of functionality;
(viii)Status of product labeling;
(ix)Outreach efforts; and
(x)If the service provider maintains a public Web site, the Web site address of the page(s) containing the information regarding hearing aid-compatible handset models required by paragraph
(h)of this section. Note to Paragraph (i)(3): For reports due on January 15, 2009, information provided with respect to paragraphs (i)(3)(i) through (i)(3)(iv) and (i)(3)(vi) through (i)(3)(viii) need be provided only for the six-month period from July 1 to December 31, 2008.
(4)*Format.* The Wireless Telecommunications Bureau is delegated authority to approve or prescribe formats and methods for submission of these reports. Any format that the Bureau may approve or prescribe shall be made available on the Bureau's Web site.
(j)*Enforcement.* Enforcement of this section is hereby delegated to those states that adopt this section and provide for enforcement. The procedures followed by a state to enforce this section shall provide a 30-day period after a complaint is filed, during which time state personnel shall attempt to resolve a dispute on an informal basis. If a state has not adopted or incorporated this section, or failed to act within six
(6)months from the filing of a complaint with the state public utility commission, the Commission will accept such complaints. A written notification to the complainant that the state believes action is unwarranted is not a failure to act. The procedures set forth in part 68, subpart E of this chapter are to be followed.
(k)*Delegation of rulemaking authority.*
(1)The Chief of the Wireless Telecommunications Bureau and the Chief of the Office of Engineering and Technology are delegated authority, by notice-and-comment rulemaking, to issue an order amending this section to the extent necessary to adopt technical standards for additional frequency bands and/or air interfaces upon the establishment of such standards by ANSI Accredited Standards Committee C63 TM , provided that the standards do not impose with respect to such frequency bands or air interfaces materially greater obligations than those imposed on other services subject to this section. Any new obligations on manufacturers and Tier I carriers pursuant to paragraphs
(c)through
(i)of this section as a result of such standards shall become effective no less than one year after release of the order adopting such standards, and any new obligations on other service providers shall become effective no less than 15 months after the release of such order.
(2)The Chief of the Wireless Telecommunications Bureau and the Chief of the Office of Engineering and Technology are delegated authority, by notice-and-comment rulemaking if required by statute or otherwise in the public interest, to issue an order amending this section to the extent necessary to approve any version of the technical standards for radio frequency interference or inductive coupling adopted subsequently to ANSI C63.19-2007 for use in determining whether a wireless handset meets the appropriate rating over frequency bands and air interfaces for which technical standards have previously been adopted either by the Commission or pursuant to paragraph (k)(1) of this section. This delegation is limited to the approval of changes to the technical standard that do not raise major compliance issues. Further, by such approvals, the Chiefs may only permit, and not require, the use of such subsequent versions of standard document ANSI C63.19 to establish hearing aid compatibility. PART 68—CONNECTION OF TERMINAL EQUIPMENT TO THE TELEPHONE NETWORK 6. The authority citation for part 68 continues to read as follows: Authority: Secs. 4, 5, 303, 48 Stat., as amended, 1066, 1068, 1082; (47 U.S.C. 154, 155, 303). 7. Section 68.418 is amended by revising paragraph
(b)to read as follows: § 68.418 Procedure; designation of agents for service.
(b)To ensure prompt and effective service of informal complaints filed under this subpart, every responsible party of equipment approved pursuant to this part shall designate and identify one or more agents upon whom service may be made of all notices, inquiries, orders, decisions, and other pronouncements of the Commission in any matter before the Commission. Such designation shall be provided to the Commission and shall include a name or department designation, business address, telephone number, and, if available, TTY number, facsimile number, and Internet e-mail address. The Commission shall make this information available to the public. [FR Doc. E8-9855 Filed 5-6-08; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 25 [IB Docket No. 07-253; FCC 08-98] Ancillary Terrestrial Components in the 1.6/2.4 GHz Big LEO Bands AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: Currently, Globalstar, Inc. (Globalstar) operates a Mobile-Satellite Service
(MSS)system in the 1610-1626.5 MHz band (Big LEO L-band) and the 2483.5-2500 MHz band (Big LEO S-band). Globalstar, a code division multiple access
(CDMA)system, is authorized to operate an ancillary terrestrial component
(ATC)in the 1610-1615.5 MHz and 2487.5-2493 MHz segments of the Big LEO bands. By this decision, the Federal Communications Commission (Commission) increases the spectrum in which Big LEO MSS systems using CDMA technology operate ATC. As a result, the Commission increases the spectrum in which Globalstar may operate ATC in the Big LEO L-band to include the 1610-1617.775 MHz band, an increase of 2.275 megahertz, and in the Big LEO S-band to include the 2483.5-2495 MHz band, an increase of six megahertz. DATES: Effective June 6, 2008. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Howard Griboff, 202/418-0657. SUPPLEMENTARY INFORMATION: The 1610-1626.5 MHz band and 2483.5-2500 MHz band were allocated to the MSS for low-earth orbiting satellites in 1994. Currently, CDMA MSS systems, of which Globalstar is the only operational system, have exclusive MSS use of the 1610-1617.775 MHz segment of the L-band and the 2483.5-2500 MHz segment of the L-band. ATC allows MSS systems to provide coverage in areas where the satellite signal is blocked, particularly in side buildings, by using terrestrial base stations that operate in the same frequency bands as the satellite systems. In order for an MSS system to operate ATC, it must meet several criteria to ensure that the ATC is part of the MSS system and not a stand-alone terrestrial system. In 2003, the Commission authorized CDMA Big LEO MSS systems to operate ATC in 11 megahertz of their authorized spectrum: 5.5 megahertz at 1610-1615.5 MHz in the Big LEO L-band, and 5.5 megahertz at 2487.5-2493 MHz in the Big LEO S-band. In 2006, Globalstar requested that the Commission authorize it to operate ATC in all of the spectrum assigned to Globalstar, currently the 1610-1618.725 MHz and 2483.5-2500 MHz bands. By a Report and Order and Order Proposing Modification, the Commission increases the spectrum in which CDMA Big LEO MSS systems may operate ATC to 7.775 megahertz at 1610-1617.775 MHz in the Big LEO L-band and 11.5 megahertz at 2483.5-2495 MHz in the Big LEO S-band, a total increase of 8.775 megahertz from the previous ATC authorization of eleven megahertz to an ATC authorization of 19.275 megahertz. The Commission does not authorize CDMA Big LEO MSS operators to operate ATC in the L-band segment at 1617.775-1618.725 MHz because that segment is shared time division multiple access
(TDMA)Big LEO MSS, and it is highly likely that ATC would cause harmful interference to the only TDMA Big LEO MSS currently operational, operated by Iridium Satellite LLC. The Commission also does not authorize ATC in the 2495-2500 MHz segment of the Big LEO S-band because that segment is shared with the fixed and mobile services, including the Broadband Radio Service/Educational Broadband Service (BRS/EBS), and it is highly likely that ATC would cause harmful interference to that service. The Commission also establishes strict out-of-band emissions limits for the upper edge of the ATC S-band (2495 MHz) to ensure that ATC will not cause harmful interference to BRS Channel 1 operations in the 2496-2502 MHz band. The Commission proposes to modify Globalstar's MSS license pursuant to its authority under Section 316 of the Communications Act, to reflect that Globalstar will have authority to operate ATC in the bands 1610-1617.775 MHz and 2483.5-2495 MHz. This license modification will serve the public interest by providing more capable and flexible MSS/ATC service offerings in the Big LEO bands. Globalstar may protest the proposed modification of its license within 30 days of publication of this Report and Order and Order Proposing Modification in the **Federal Register** . This Report and Order and Order Proposing Modification does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). The Commission will send a copy of this Report and Order and Order Proposing Modification in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 25 Satellites. Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 25 to read as follows: PART 25—SATELLITE COMMUNICATIONS 1. The authority citation for part 25 continues to read: Authority: 47 U.S.C. 701-744. Interprets or applies Sections 4, 301, 302, 303, 307, 309 and 332 of the Communications Act, as amended, 47 U.S.C. Sections 154, 301, 302, 303, 307, 309 and 332, unless otherwise noted. 2. Revise paragraphs (a)(2)(iii) and (b)(5)(ii) of § 25.149 to read as follows: § 25.149 Application requirements for ancillary terrestrial components in the mobile-satellite service networks operating in the 1.5/1.6 GHz, 1.6/2.4 GHz and 2 GHz mobile-satellite service.
(a)* * *
(2)* * *
(iii)In the 1610-1626.5 MHz/2483.5-2500 MHz bands (Big LEO bands), ATC operations are limited to the 1610-1617.775 MHz, 1621.35-1626.5 MHz, and 2483.5-2495 MHz bands and to the specific frequencies authorized for use by the MSS licensee that seeks ATC authority.
(b)* * *
(5)* * *
(ii)In the Big LEO bands, MSS ATC is limited to no more than 7.775 MHz of spectrum in the L-band and 11.5 MHz of spectrum in the S-band. Licensees in these bands may implement ATC only on those channels on which MSS is authorized, consistent with the Big LEO band-sharing arrangement. 3. Add paragraph
(d)to § 25.254 to read as follows: § 25.254 Special requirements for ancillary terrestrial components operating in the 1610-1626.5 MHz/2483.5-2500 MHz bands.
(d)To avoid interference to an adjacent channel licensee in the Broadband Radio Service (BRS), the power of any ATC base station emission above 2495 MHz shall be attenuated below the transmitter power
(P)measured in watts in accordance with the standards below. If these measures do not resolve a documented interference complaint received from the adjacent channel BRS licensee, the provisions of § 25.255 shall apply.
(1)For base stations, the attenuation shall be not less than 43 + 10 log
(P)dB at the upper edge of the authorized ATC band, unless a documented interference complaint is received from an adjacent channel licensee in the BRS. Provided that a documented interference complaint cannot be mutually resolved between the parties, the following additional attenuation requirements set forth in subsections (2)-(5) shall apply:
(2)If a pre-existing BRS base station suffers harmful interference from emissions caused by a new or modified ATC base station located 1.5 km or more away, within 24 hours of the receipt of a documented interference complaint the ATC licensee must attenuate its emissions by at least 67 + 10 log
(P)dB measured at 3 megahertz above the edge of the authorized ATC band, and shall immediately notify the complaining licensee upon implementation of the additional attenuation.
(3)If a pre-existing BRS base station suffers harmful interference from emissions caused by a new or modified ATC base station located less than 1.5 km away, within 24 hours of the receipt of a documented interference complaint the ATC licensee must attenuate its emissions by at least 67 + 10 log
(P)−20 log(D <sup>km</sup> /1.5) dB measured at 3 megahertz above the edge of the authorized ATC band, or if both base stations are co-located, limit its undesired signal level at the pre-existing BRS base station receiver(s) to no more than −107 dBm measured in a 5.5 megahertz bandwidth and shall immediately notify the complaining licensee upon such reduction in the undesired signal level.
(4)If a new or modified BRS base station suffers harmful interference from emissions caused by a pre-existing ATC base station located 1.5 km or more away, within 60 days of receipt of a documented interference complaint the licensee of the ATC base station must attenuate its base station emissions by at least 67 + 10 log
(P)dB measured at 3 megahertz above the edge of the authorized ATC band.
(5)If a new or modified BRS base station suffers harmful interference from emissions caused by a pre-existing ATC base station located less than 1.5 km away, within 60 days of receipt of a documented interference complaint:
(i)the ATC licensee must attenuate its base station emissions by at least 67 + 10 log
(P)−20 log(D <sup>km</sup> /1.5) dB measured 3 megahertz above the edge of the authorized ATC band, or
(ii)if both base stations are co-located, the ATC licensee must limit its undesired signal level at the new or modified BRS base station receiver(s) to no more than −107 dBm measured in a 5.5 megahertz bandwidth.
(6)Compliance with these rules is based on the use of measurement instrumentation employing a resolution bandwidth of 1 MHz or greater. However, in the 1 MHz bands immediately above and adjacent to the 2495 MHz a resolution bandwidth of at least one percent of the emission bandwidth of the fundamental emission of the transmitter may be employed. A narrower resolution bandwidth is permitted in all cases to improve measurement accuracy, provided the measured power is integrated over the full required measurement bandwidth (i.e., 1 MHz or 1 percent of emission bandwidth, as specified). The emission bandwidth is defined as the width of the signal between two points, one below the carrier center frequency and one above the carrier center frequency, outside of which all emissions are attenuated at least 26 dB below the transmitter power. When an emission outside of the authorized bandwidth causes harmful interference, the Commission may, at its discretion, require greater attenuation than specified in this section. [FR Doc. E8-10095 Filed 5-6-08; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF HOMELAND SECURITY 48 CFR Part 3002 Homeland Security Acquisition Regulation (HSAR); Definitions of Words and Terms CFR Correction In title 48 of the Code of Federal Regulations, chapter 29 to end, revised as of October 1, 2007, on page 66, in 3002.101, remove the definition of “Organizational Element (OE)”. [FR Doc. E8-10061 Filed 5-6-08; 8:45 am] BILLING CODE 1505-01-D DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 Fisheries Off West Coast States CFR Correction In title 50 of the Code of Federal Regulations, part 660 to end, revised as of October 1, 2007, on page 194, in part 660, reinstate § 660.510 to read as follows: § 660.510 Fishing seasons. All seasons will begin at 0001 hours and terminate at 2400 hours local time. Fishing seasons for the following CPS species are:
(a)*Pacific sardine.* January 1 to December 31, or until closed under § 660.509.
(b)*Pacific mackerel.* July 1 to June 30, or until closed under § 660.509. [FR Doc. E8-10062 Filed 5-6-08; 8:45 am] BILLING CODE 1505-01-D 73 89 Wednesday, May 7, 2008 Proposed Rules FEDERAL RESERVE SYSTEM 12 CFR Part 261a [Docket No. R-1313] Privacy Act of 1974; Privacy Act Regulation AGENCY: Board of Governors of the Federal Reserve System. ACTION: Proposed rule. SUMMARY: The Board of Governors of the Federal Reserve System (Board) proposes to amend its regulation implementing the Privacy Act of 1974 (Privacy Act). The primary changes concern: the waiver of copying fees charged to current and former Board employees, and applicants for Board employment, for access to their records under the Privacy Act; amending special procedures for the release of medical records to permit the Board's Chief Privacy Officer to also consult with the Board's Employee Assistance Program counselor to determine whether the disclosure of medical records directly to the requester could have an adverse effect on the requester; changes to procedures for requests by current Board employees for access to their personnel records; changes to the time limits for responding to requests for access to information and amendment of records; and updates to the exemptions claimed for certain systems of records. In addition, the Board is proposing to make minor editorial and technical changes to ensure that the Board's regulation is consistent with the Board's published systems of records and is clearer. DATES: Comment must be received on or before June 6, 2008. ADDRESSES: You may submit comments, identified by Docket No. R-1313, by any of the following methods: • *Agency Web site: http://www.federalreserve.gov.* Follow the instructions for submitting comments at *http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.* • *Federal eRulemaking Portal:* *http://www.regulations.gov.* Follow the instructions for submitting comments. • *E-mail: regs.comments@federalreserve.gov.* Include docket number in the subject line of the message. • *FAX:* 202/452-3819 or 202/452-3102. • *Mail:* Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, NW., Washington, DC 20551. All public comments are available from the Board's Web site at *http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm* as submitted, unless modified for technical reasons. Accordingly, your comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper in Room MP-500 of the Board's Martin Building (20th and C Streets, NW.) between 9 a.m. and 5 p.m. on weekdays. FOR FURTHER INFORMATION CONTACT: Brad Fleetwood, Senior Counsel,
(202)452-3721, Legal Division. For user of Telecommunications Device for the Deaf
(TDD)only, contact
(202)263-4869. SUPPLEMENTARY INFORMATION: The Board's Privacy Act Regulation was last revised in 2002 (67 FR 44526, July 3, 2002). Since that time, in its ongoing review of this regulation and the Board's Privacy Act systems of records, the Board has determined that certain additional changes should be made to the regulation to improve procedures and to make the regulation clearer and more understandable. Below is an explanation of the proposed substantive changes. The Privacy Act (5 U.S.C. 552a(f)(5)) permits agencies to assess fees for copying requested records. Section 261a.4(a) of the Board's current regulation states that the duplication fee for Privacy Act requests will be the same as that charged for duplication of records in response to a Freedom of Information Act request (currently $.10/page). Section 261a.4(c) states that duplication fees totaling $50 or less will be waived in the connection with a request by an employee, former employee, or applicant for employment for records for use in prosecuting a grievance or complaint of discrimination against the Board; but the Secretary of the Board also may waive fees exceeding that amount. A review of current Board practice revealed that all copying fees are waived in connection with any request by current or former Board employees, and applicants for Board employment. Accordingly, the Board proposes to amend the regulation to conform to this practice. Currently, section 261a.7 of the Board's Regulation permits the Chief Privacy Officer, in consultation with the Board's physician, to determine that disclosure of medical records directly to the requester could have an adverse effect on the requester. In that situation, the Board would transmit the records to a licensed physician named by the requester, and the physician would disclose the records to the requester in a manner deemed appropriate by the physician. The Board proposes to amend the regulation to permit the Chief Privacy Officer to also consult with the Board's Employee Assistance Program
(EAP)counselor to determine whether the disclosure of medical records directly to the requester could have an adverse effect on the requester. Currently, section 261a.5 provides that any person seeking to learn of the existence of, or to gain access to, an individual's record in a system of records shall submit a request in writing to the Secretary of the Board, except that a request by a current Board employee for that employee's personnel records may be made in person during regular business hours at the Human Resources Function of the Board's Management Division. The Board proposes to modify this provision and require all requests for access, including those made by current Board employees for access to their personnel records, to be submitted in writing to the Secretary of the Board. The proposed change will facilitate appropriate tracking and processing of all Privacy Act requests. Currently, § 261.a(6)(b) states that individuals' requests for access to information shall be acknowledged, or where practicable, substantially responded to within 10 business days from receipt of the request. After a review of the Board's actual practice, the Board proposes to modify this time limit to provide the Board 20 business days to respond, where practicable. Currently, § 261.a(9)(a) states that to the extent possible, a determination upon a request to amend a record shall be made within 10 business days after receipt of the request. The Privacy Act requires agencies to respond to requests to amend records promptly. Thus, the Board proposes to change its regulation to require the Board to respond promptly to such requests. The current regulation sets out, in § 261.12, the statutory exceptions to restrictions on disclosure. Because this provision adds no substantive or interpretative matter to the statutory provision, the proposal simply references the statutory exception provision in the text of proposed § 261a.11 relating to restrictions on disclosure. The Board recently updated its Privacy Act systems of records, and the Board is now updating the exemptions listed under § 261a.13 (to be renumbered § 261a.12) to conform to the exemptions approved for each of the Board's Privacy Act systems of records. In addition, under § 261a.12(d), the Board has clarified that all Office of Inspector the General Investigatory Records held in system BGFRS/OIG-1 are exempt from parts of the Privacy Act under 5 U.S.C. 552a(j)(2). The remaining proposed changes are technical or editorial in nature and should not have a substantive effect on any persons. INITIAL REGULATORY FLEXIBILITY ANALYSIS The Privacy Act Regulation sets forth the procedures by which individuals may request access and amendment to records maintained in systems of records at the Board. The Board certifies that this rule will not have a significant economic impact on a substantial number of small entities, because it does not apply to business entities. List of Subjects in 12 CFR Part 261a Privacy. For the reasons set forth in the preamble, the Board proposes to revise 12 CFR part 261a to read as follows: PART 261a—RULES REGARDING ACCESS TO PERSONAL INFORMATION UNDER THE PRIVACY ACT 1974 Subpart A—General Provisions Sec. 261a.1 Authority, purpose and scope. 261a.2 Definitions. 261a.3 Custodian of records; delegations of authority. 261a.4 Fees. Subpart B—Procedures for Requests by Individual to Whom Record Pertains 261a.5 Request for access to record. 261a.6 Board procedures for responding to request for access. 261a.7 Special procedures for medical records. 261a.8 Request for amendment of record. 261a.9 Board review of request for amendment of record. 261a.10 Appeal of adverse determination of request for access or amendment. Subpart C—Disclosure of Records 261a.11 Restrictions on disclosure. 261a.12 Exempt Records. Authority: 5 U.S.C. 552a. Subpart A—General Provisions § 261a.1 Authority, purpose and scope.
(a)*Authority.* This part is issued by the Board of Governors of the Federal Reserve System (the Board) pursuant to the Privacy Act of 1974 (5 U.S.C. 552a).
(b)*Purpose and scope.* This part implements the provisions of the Privacy Act of 1974 with regard to the maintenance, protection, disclosure, and amendment of records contained within systems of records maintained by the Board. It sets forth the procedures for requests for access to, or amendment of, records concerning individuals that are contained in systems of records maintained by the Board. § 261a.2 Definitions. *For the purposes of this part, the following definitions apply:*
(a)*Business day* means any day except Saturday, Sunday, or a legal Federal holiday.
(b)*Guardian* means the parent of a minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction.
(c)*Individual* means a natural person who is either a citizen of the United States or an alien lawfully admitted for permanent residence.
(d)*Maintain* includes maintain, collect, use, or disseminate.
(e)*Record* means any item, collection, or grouping of information about an individual maintained by the Board that contains the individual's name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a fingerprint, voice print, or photograph.
(f)*Routine use* means, with respect to disclosure of a record, the use of such record for a purpose that is compatible with the purpose for which it was collected or created.
(g)*System of records* means a group of any records under the control of the Board from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.
(h)*You* means an individual making a request under the Privacy Act.
(i)*We* means the Board. § 261a.3 Custodian of records; delegations of authority.
(a)*Custodian of records.* The Secretary of the Board is the official custodian of all Board records.
(b)*Delegated authority of Secretary.* The Secretary of the Board is authorized to—
(1)Respond to requests for access to, accounting of, or amendment of records contained in a system of records, except for such requests regarding systems of records maintained by the Board's Office of the Inspector General (OIG);
(2)Approve the publication of new systems of records and amend existing systems of records, except systems of records exempted pursuant to § 261a.13(b),
(c)and (d); and
(3)File any necessary reports related to the Privacy Act.
(c)*Delegated authority of designee.* Any action or determination required or permitted by this part to be done by the Secretary of the Board may be done by a Deputy or Associate Secretary or other responsible employee of the Board who has been duly designated for this purpose by the Secretary.
(d)*Delegated authority of Inspector General.* The Inspector General is authorized to respond to requests for access or amendment for systems of records maintained by the OIG. § 261a.4 Fees.
(a)*Copies of records.* We will provide you with copies of records you request under § 261a.5 of this part at the same cost we charge for duplication of records and/or production of computer output under the Board's Rules Regarding Availability of Information, 12 CFR part 261.
(b)*No fee.* We will not charge you a fee if—
(1)Your total charges are less than $5, or
(2)You are a Board employee or former employee, or an applicant for employment with the Board, and you request records pertaining to you. Subpart B—Procedures for Requests by Individuals to Whom Record Pertains § 261a.5 Request for access to record.
(a)*Procedures for making request.*
(1)Except as provided in paragraph (a)(2) of this section, if you (or your guardian) want to learn of the existence of, or to gain access to, your record in a system of records, you may submit a request in writing to the Secretary of the Board, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, NW., Washington, DC 20551.
(2)If you want to request information contained in a system of records maintained by the Board's OIG, you may submit the request in writing to the Inspector General, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, NW., Washington, DC 20551.
(b)*Contents of request.* Your request must include—
(1)A statement that the request is made pursuant to the Privacy Act of 1974;
(2)The name of the system of records you believe contains the record you request, or a concise description of that system of records;
(3)Information necessary to verify your identity pursuant to paragraph
(c)of this section; and
(4)Any other information that may assist us in identifying the record you seek ( *e.g.* , maiden name, dates of employment, etc.).
(c)*Verification of identity.* We will require proof of your identity, and we reserve the right to determine whether the proof you submit is adequate. In general, we will consider the following to be adequate proof of identity:
(1)If you are a current Board employee, your Board identification card; or
(2)If you are not a current Board employee, either—
(i)Two forms of identification, including one photo identification, or
(ii)A notarized statement attesting to your identity.
(d)*Verification of identity not required.* We will not require verification of identity when the records you seek are available to any person under the Freedom of Information Act (5 U.S.C. 552).
(e)*Request for accounting of previous disclosures.* You may request an accounting of previous disclosures of records pertaining to you in a system of records as provided in 5 U.S.C. 552a(c). § 261a.6 Board procedures for responding to request for access.
(a)*Compliance with Freedom of Information Act.* We will handle every request made pursuant to § 261a.5 of this part as a request for information pursuant to the Freedom of Information Act, except that the time limits set forth in paragraph
(b)of this section and the fees specified in § 261a.4 of this part will apply to such requests.
(b)*Time for response.* We will acknowledge every request made pursuant to § 261a.5 of this part within 20 business days from receipt of the request and will, where practicable, respond to each request within that 20-day period. When a full response is not practicable within the 20-day period, we will respond as promptly as possible.
(c)*Disclosure.*
(1)When we disclose information in response to your request, except for information maintained by the Board's OIG, you may inspect or copy it during regular business hours at the Board's Freedom of Information Office, or you may request that we mail it to you.
(2)When the information to be disclosed is maintained by the Board's OIG, the OIG will make the information available for inspection and copying or will mail it to you on request.
(3)You may bring with you anyone you choose to see the requested material.
(d)*Denial of request.* If we deny a request made pursuant to § 261a.5 of this part, we will tell you the reason(s) for denial and the procedures for appealing the denial. § 261a.7 Special procedures for medical records. If you request medical or psychological records pursuant to § 261a.5, we will disclose them directly to you unless the Chief Privacy Officer, in consultation with the Board's physician or Employee Assistance Program counselor, determines that such disclosure could have an adverse effect on you. If the Chief Privacy Officer makes that determination, we will provide the information to a licensed physician or other appropriate representative you name, who may disclose those records to you in a manner he or she deems appropriate. § 261a.8 Request for amendment of record.
(a)*Procedures for making request.*
(1)If you wish to amend a record that pertains to you in a system of records, you may submit a request in writing to the Secretary of the Board (or to the Inspector General for records in a system of records maintained by the OIG) in an envelope clearly marked “Privacy Act Amendment Request.”
(2)Your request for amendment of a record must—
(i)Identify the system of records containing the record for which amendment is requested;
(ii)Specify the portion of that record requested to be amended; and
(iii)Describe the nature of and reasons for each requested amendment.
(3)We will require you to verify your identity under the procedures set forth in § 261a.5(c) of this part, unless you have already done so in a related request for access or amendment.
(b)*Burden of proof.* Your request for amendment of a record must tell us why you believe the record is not accurate, relevant, timely, or complete. You have the burden of proof for demonstrating the appropriateness of the requested amendment, and you must provide relevant and convincing evidence in support of your request. § 261a.9 Board review of request for amendment of record.
(a)*Time limits.* We will acknowledge your request for amendment of your record within 10 business days after we receive your request. In the acknowledgment, we may request additional information necessary for a determination on the request for amendment. We will make a determination on a request to amend a record promptly.
(b)*Contents of response to request for amendment.* When we respond to a request for amendment, we will tell you whether your request is granted or denied. If we deny the request, in whole or in part, we will tell you—
(1)Why we denied the request (or portion of the request);
(2)That you have a right to appeal; and
(3)How to file an appeal. § 261a.10 Appeal of adverse determination of request for access or amendment.
(a)*Appeal.* You may appeal a denial of a request made pursuant to § 261a.5 or § 261a.8 of this part within 10 business days after we notify you that we denied your request. Your appeal must—
(1)Be made in writing to the Secretary of the Board, with the words “PRIVACY ACT APPEAL” written prominently on the first page;
(2)Specify the background of the request; and
(3)Provide reasons why you believe the initial denial is in error.
(b)*Determination.* We will make a determination on your appeal within 30 business days from the day we receive it, unless we extend the time for good cause.
(1)If we grant your appeal regarding a request for amendment, we will take the necessary steps to amend your record, and, when appropriate and possible, notify prior recipients of the record of our action.
(2)If we deny your appeal, we will inform you of such determination, tell you our reasons for the denial, and tell you about your right to file a statement of disagreement and your right to have a court review our decision.
(c)*Statement of disagreement.*
(1)If we deny your appeal regarding a request for amendment, you may file a concise statement of disagreement with the denial. We will maintain your statement with the record you sought to amend, and any disclosure of the record will include a copy of your statement of disagreement.
(2)When practicable and appropriate, we will provide a copy of the statement of disagreement to any prior recipients of the record. Subpart C—Disclosure of Records § 261a.11 Restrictions on disclosure. We will not disclose any record about you contained in a system of records to any person or agency without your prior written consent unless the disclosure is authorized by 5 U.S.C. 552a(b). § 261a.12 Exempt Records.
(a)*Information compiled for civil action.* This regulation does not permit you to have access to any information compiled in reasonable anticipation of a civil action or proceeding.
(b)*Law enforcement information.* Pursuant to 5 U.S.C. 552a(k)(2), we have determined that it is necessary to exempt the systems of records listed below from the requirements of the Privacy Act concerning access to records, accountings of disclosures of records, maintenance of only relevant and necessary information in files, and certain publication provisions, respectively, 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G),
(H)and (I), and (f), and §§ 261a.5, 261a.7, and 261a.8 of this part. The exemption applies only to the extent that a system of records contains investigatory materials compiled for law enforcement purposes.
(1)BGFRS-1 Recruiting and Placement Records.
(2)BGFRS 2 Personnel Security Systems.
(3)BGFRS 4 General Personnel Records.
(4)BGFRS 5 EEO Discrimination Complaint File.
(5)BGFRS 18 Consumer Complaint Information.
(6)BGFRS 21 Supervisory Enforcement Actions and Special Examinations Tracking System.
(7)BGFRS 31 Protective Information System.
(8)BGFRS 32 Visitor Registration System.
(9)BGFRS 36 Federal Reserve Application Name Check System.
(10)BGFRS/OIG 1 OIG Investigative Records.
(c)*Confidential references.* Pursuant to 5 U.S.C. 552a(k)(5), we have determined that it is necessary to exempt the systems of records listed below from the requirements of the Privacy Act concerning access to records, accountings of disclosures of records, maintenance of only relevant and necessary information in files, and certain publication provisions, respectively, 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G),
(H)and (I), and (f), and §§ 261a.5, 261a.7, and 261a.8 of this part. The exemption applies only to the extent that a system of records contains investigatory material compiled to determine an individual's suitability, eligibility, and qualifications for Board employment or access to classified information, and the disclosure of such material would reveal the identity of a source who furnished information to the Board under a promise of confidentiality.
(1)BGFRS-1 Recruiting and Placement Records.
(2)BGFRS-2 Personnel Security Systems.
(3)BGFRS-4 General Personnel Records.
(4)BGFRS-10 General Files on Board Members.
(5)BGFRS-11 Official General Files.
(6)BGFRS-13 Federal Reserve System Bank Supervision Staff Qualifications.
(7)BGFRS-14 General File on Federal Reserve Bank and Branch Directors.
(8)BGFRS-25 Multi-Rater Feedback Records.
(9)BGFRS/OIG-1 OIG Investigative Records.
(10)BGFRS/OIG-2 OIG Personnel Records.
(d)*Criminal law enforcement information.* Pursuant to 5 saU.S.C. 552a(j)(2), we have determined that the OIG Investigative Records (BGFRS/OIG-1) are exempt from the Privacy Act, except the provisions regarding disclosure, the requirement to keep an accounting, certain publication requirements, certain requirements regarding the proper maintenance of systems of records, and the criminal penalties for violation of the Privacy Act, respectively, 5 U.S.C. 552a(b), (c)(1), and (2), (e)(4)(A) through (F), (e)(6), (e)(7), (e)(9), (e)(10), (e)(11) and (i). By order of the Board of Governors of the Federal Reserve System, April 30, 2008. Jennifer J. Johnson, Secretary of the Board. [FR Doc. E8-9927 Filed 5-6-08; 8:45 am] BILLING CODE 6210-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0174; Directorate Identifier 2008-NE-03-AD] RIN 2120-AA64 Airworthiness Directives; CFM International, S.A. CFM56-5B1/P; -5B2/P; -5B3/P; -5B3/P1; -5B4/P; -5B4/P1; -5B5/P; -5B6/P; -5B7/P; -5B8/P; and -5B9/P Turbofan Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for CFM International, S.A. CFM56-5B1/P; -5B2/P; -5B3/P; -5B3/P1; -5B4/P; -5B4/P1; -5B5/P; -5B6/P; -5B7/P; -5B8/P; and -5B9/P turbofan engines. This proposed AD would require initial and repetitive eddy current inspections
(ECIs)of certain part number (P/N) low-pressure
(LP)turbine rear frames. This proposed AD results from a refined lifing analysis by the engine manufacturer that shows the need to identify initial and repetitive inspection thresholds for inspecting certain LP turbine rear frames. We are proposing this AD to detect low-cycle-fatigue cracks in the LP turbine rear frame, which could result in engine separation from the airplane, possibly leading to loss of control of the airplane. DATES: We must receive any comments on this proposed AD by July 7, 2008. ADDRESSES: Use one of the following addresses to comment on this proposed AD. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. • *Hand Delivery:* Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Fax:*
(202)493-2251. You can get the service information identified in this proposed AD from CFM International, Technical Publications Department, 1 Neumann Way, Cincinnati, OH 45215; telephone
(513)552-2800; fax
(513)552-2816. FOR FURTHER INFORMATION CONTACT: Stephen Sheely, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *stephen.k.sheely@faa.gov;* telephone
(781)238-7750; fax
(781)238-7199. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send us any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2008-0174; Directorate Identifier 2008-NE-03-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed 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 proposed AD. Using the search function of the Web site, anyone can find and read the comments in any of our dockets, including, if provided, the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78). Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is the same as the Mail address provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. Discussion CFM International, S.A. performed a refined lifing analysis that shows the need to identify initial and repetitive inspection thresholds for inspecting LP turbine rear frames, P/Ns 338-171-703-0; 338-171-704-0; 338-171-705-0; and 338-171-706-0. These parts are installed in CFM56-5B1/P; -5B2/P; -5B3/P; -5B3/P1; -5B4/P; -5B4/P1; -5B5/P; -5B6/P; -5B7/P; -5B8/P; and -5B9/P turbofan engines. This proposed AD would require initial and repetitive ECIs of these LP turbine rear frames. This condition, if not corrected, could result in low-cycle-fatigue cracks in the LP turbine rear frame, engine separation from the airplane, possibly leading to loss of control of the airplane. Relevant Service Information We have reviewed and approved the technical contents of CFM International, S.A. Service Bulletin No. CFM56-5B S/B 72-0620, Revision 1, dated December 20, 2007, that describes procedures for performing ECIs of the LP turbine rear frame. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. We are proposing this AD, which would require initial and repetitive ECIs of the affected P/N LP turbine rear frames. Costs of Compliance We estimate that this proposed AD would affect 426 CFM56-5B series turbofan engines installed on airplanes of U.S. registry. We estimate that it would take about 3 work-hours to perform an eddy current inspection of an LP turbine rear frame. The average labor rate is $80 per work-hour. A replacement LP turbine rear frame costs about $102,240. If all 426 LP turbine rear frames needed replacement, we estimate the total cost of the proposed AD to U.S. operators to be $43,656,480. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed 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. Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. You may get a copy of this summary at the address listed under ADDRESSES . List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new airworthiness directive: **CFM International, S.A.:** Docket No. FAA-2008-0174; Directorate Identifier 2008-NE-03-AD. Comments Due Date
(a)The Federal Aviation Administration
(FAA)must receive comments on this airworthiness directive
(AD)action by July 7, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to CFM International, S.A. CFM56-5B1/P; -5B2/P; -5B3/P; -5B3/P1; -5B4/P; -5B4/P1; -5B5/P; -5B6/P; -5B7/P; -5B8/P; and -5B9/P turbofan engines with low-pressure
(LP)turbine rear frames, part numbers 338-171-703-0; 338-171-704-0; 338-171-705-0; and 338-171-706-0, installed. These engines are installed on, but not limited to, Airbus A318, A319, A320, and A321 series airplanes. Unsafe Condition
(d)This AD results from a refined lifing analysis by the engine manufacturer that shows the need to identify initial and repetitive inspection thresholds for inspecting certain LP turbine rear frames. We are issuing this AD to detect low-cycle-fatigue cracks in the LP turbine rear frame, which could result in engine separation from the airplane, possibly leading to loss of control of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done. Initial Inspection
(f)Perform an initial eddy current inspection
(ECI)of the LP turbine rear frame using paragraphs 3.A. through 3.A.(7)(d) of the Accomplishment Instructions of CFM International, S.A. Service Bulletin
(SB)No. CFM56-5B S/B 72-0620, Revision 1, dated December 20, 2007, at the following compliance times:
(1)For commercial engine applications, within 25,000 cycles-since-new
(CSN)on the LP turbine rear frame.
(2)For corporate engine applications, within 19,000 CSN on the LP turbine rear frame.
(3)For engines with unknown LP turbine rear frame CSN, within 300 cycles from the effective date of this AD. Repetitive Inspections
(g)Perform repetitive ECIs of the LP turbine rear frame using paragraphs 3.A. through 3.A.(7)(d) of the Accomplishment Instructions of CFM International, S.A. SB No. CFM56-5B S/B 72-0620, Revision 1, dated December 20, 2007. Use the inspection intervals in paragraph 3.A.(8) of the Accomplishment Instructions of CFM International, S.A. SB No. CFM56-5B S/B 72-0620, Revision 1, dated December 20, 2007. LP Turbine Rear Frame Removal Criteria
(h)Remove LP turbine rear frames from service that have a single crack length of 2.56 inches (65 mm) or longer, or multiple cracks with accumulated crack length of 2.56 inches (65 mm) or longer. Alternative Methods of Compliance
(i)The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Related Information
(j)European Aviation Safety Agency AD 2007-0221, dated August 13, 2007, also addresses the subject of this AD.
(k)Contact Stephen Sheely, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *stephen.k.sheely@faa.gov;* telephone
(781)238-7750; fax
(781)238-7199, for more information about this AD. Issued in Burlington, Massachusetts, on April 29, 2008. Peter A. White, Assistant Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E8-10050 Filed 5-6-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0520; Directorate Identifier 2008-NM-018-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 777-200 Series Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for certain Boeing Model 777-200 series airplanes. This proposed AD would require repetitive inspections for any wrinkle in certain external skin panels, and for cracking at the fuselage bulkhead shear tie end fastener locations at certain stations of section 48 of the fuselage; and doing related investigative and corrective actions if necessary. This proposed AD results from a report of cracks found in the external skin on the left and right sides of the Section 48 panel of the fuselage on two airplanes with skin wrinkles found at two of the external crack locations. We are proposing this AD to detect and correct wrinkles and cracks in certain external skin panels of Section 48, which could join together and result in reduced structural integrity of support structure for the vertical and horizontal stabilizers and inability of the airplane to sustain limit loads. DATES: We must receive comments on this proposed AD by June 23, 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. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Duong Tran, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6452; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0520; Directorate Identifier 2008-NM-018-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We have received a report of cracks found in the external skin on the left and right sides of the section 48 panel of the fuselage on two airplanes. There were ten external skin cracks on one airplane with 22,732 total flight hours and 20,286 total flight cycles; the cracks were 0.20 to 0.50 inch in length at Stations 2195.75 and 2221.65, between Stringers 6 to 10 on the left and right sides. In addition, skin wrinkles 4.5 and 5.0 inches long and 1.0 inch wide and 0.014 inch deep were found at two of the external skin crack locations. A second report indicated that three external skin cracks, 0.12 to 0.20 inches in length were found at Station 2195.75, above Stringer 7 on the left side, on an airplane with 22,147 total flight hours and 19,281 total flight cycles. This condition, if not corrected, could result in reduced structural integrity of support structure for the vertical and horizontal stabilizers and inability of the airplane to sustain limit loads. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 777-53A0051, dated November 8, 2007. The alert service bulletin describes procedures for repetitive general visual inspections for any wrinkle of the external skin at Stations 2195.75, 2221.65, and 2245.70 of the Section 48 panel of the fuselage, between stringers 5 and 10 on the left and right sides. The service bulletin also describes procedures for repetitive high frequency eddy current
(HFEC)and detailed inspections for cracking at the fuselage bulkhead shear tie end fastener locations of the external skin at Stations 2195.75, 2221.65, and 2245.70 of the section 48 panel of the fuselage; between stringers 5 and 10 on the left and right sides. In addition, the service bulletin describes performing related investigative and corrective actions if necessary. The corrective actions include removing any skin wrinkle, repairing any skin crack, and installing a skin repair if any wrinkle or crack is found. The related investigative actions include an internal HFEC inspection of the repair doubler edge row fasteners for cracking if a skin repair is installed. The service bulletin also recommends contacting Boeing for repair data if any crack is found that is 1.0 or more inches in length. The compliance times for the inspections specified in the service bulletin are as follows: • General visual and external HFEC inspections for any wrinkle and cracking of the skin panels and bulkhead shear tie end fastener locations at Stations 2195.75, 2221.65, and 2245.70 of the Section 48 panel of the fuselage, between stringers 5 and 10: Before 16,000 total flight cycles or within 2,300 flight cycles after the date on the service bulletin, whichever occurs later. If no wrinkle or skin crack is found, the service bulletin specifies repeating the inspections thereafter at intervals not to exceed 4,500 flight cycles. • Internal HFEC inspection of the repair doubler shear tie end fasteners and external and internal detailed inspection of the tripler, doubler, skin, shear tie, stringer, or fuselage bulkhead (fastener locations): Within 30,000 flight cycles after installation of the repair. • Internal HFEC inspection of the repair doubler edge row fasteners and external and internal detailed inspection of the tripler, doubler, skin, shear tie, stringer or fuselage bulkhead within the repair area: Before 30,000 total flight cycles, or within 16,000 flight cycles after installation of the repair, whichever occurs first. If no cracking is found, the service bulletin describes repeating the inspections thereafter at intervals not to exceed 16,000 flight cycles. If any crack is found, the service bulletin recommends contacting Boeing for repair data and repairing. FAA's Determination and Requirements of This Proposed AD We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and Service Information.” Difference Between the Proposed AD and Service Information The alert service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways: • Using a method that we approve; or • Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings. Costs of Compliance We estimate that the inspections in this proposed AD would affect 13 airplanes of U.S. registry. We also estimate that it would take about 15 work-hours per product to comply with this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this proposed AD to the U.S. operators to be $15,600, or $1,200 per product, per inspection cycle. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866, 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Boeing** : Docket No. FAA-2008-0520; Directorate Identifier 2008-NM-018-AD. Comments Due Date
(a)We must receive comments by June 23, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Boeing Model 777-200 series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 777-53A0051, dated November 8, 2007. Unsafe Condition
(d)This AD results from a report of cracks found in the external skin on the left and right sides of the section 48 fuselage panel on two airplanes with skin wrinkles found at two of the external crack locations. We are issuing this AD to detect and correct wrinkles and cracks in certain external skin panels of section 48, which could join together and result in reduced structural integrity of support structure for the vertical and horizontal stabilizers and inability of the airplane to sustain limit loads. Compliance
(e)Comply with this AD within the compliance times specified, unless already done. Repetitive Inspections/Investigative and Corrective Actions
(f)At the applicable compliance times specified in paragraph 1.E., “Compliance” of Boeing Alert Service Bulletin 777-53A0051, dated November 8, 2007, except as provided by paragraph
(g)of this AD: Do the applicable inspections for any wrinkle of the external skin and for cracking at the fuselage bulkhead shear tie end fastener locations at Stations 2195.75, 2221.65, and 2245.70 of the section 48 panel of the fuselage, between stringers 5 and 10 on the left and right sides; and do all the applicable investigative and corrective actions; by doing all of the applicable actions in accordance with the Accomplishment Instructions of the service bulletin, except as provided by paragraph
(h)of this AD. Do all applicable investigative and corrective actions before further flight. Repeat the applicable inspections thereafter at the applicable intervals specified in paragraph 1.E. of the service bulletin. Exception to Compliance Times
(g)Where Boeing Alert Service Bulletin 777-53A0051, dated November 8, 2007, specifies counting the compliance time from “* * * the date on this service bulletin,” this AD requires counting the compliance time from the effective date of this AD. Exception to Corrective Actions
(h)If any damage beyond the repair limits specified in Boeing Alert Service Bulletin 777-53A0051, dated November 8, 2007, is found during any inspection required by this AD, and the service bulletin specifies to contact Boeing for appropriate action: Before further flight, repair the crack using a method approved in accordance with the procedures specified in paragraph
(i)of this AD. Alternative Methods of Compliance (AMOCs) (i)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, ATTN: Duong Tran, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6452; fax
(425)917-6590 has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(3)An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane. Issued in Renton, Washington, on April 25, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-10059 Filed 5-6-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0043; Directorate Identifier 2007-NM-058-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747SR, and 747SP Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of comment period. SUMMARY: The FAA is revising an earlier NPRM for an airworthiness directive
(AD)that applies to certain Boeing Model 747 series airplanes. The original NPRM would have superseded an existing AD that currently requires inspecting to detect cracking in certain lower lobe fuselage skin lap joints, doing repetitive inspections for cracking at certain fastener locations having countersunk fasteners, and replacing countersunk fasteners with protruding head fasteners at certain fastener locations. The original NPRM proposed to replace a previous high-frequency eddy current
(HFEC)inspection method with a new HFEC inspection method, add a one-time inspection for cracking of certain airplanes, and terminate the adjustment factor for the inspection compliance times based on cabin differential pressure. The original NPRM also included an inspection at an additional lap joint. The original NPRM resulted from reports of fuselage skin cracks found at certain countersunk fastener locations in the upper row of lap joints near the wing-to-body fairings, and from a report that the presence of Alodine-coated rivets could cause faulty results during the required inspections using the optional sliding probe HFEC inspection method specified in the existing AD. This new action revises the original NPRM by including inspections at additional lap joint locations and by removing inspections at certain other lap joint locations. We are proposing this supplemental NPRM to prevent reduced structural integrity of the fuselage. DATES: We must receive comments on this supplemental NPRM by June 2, 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. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Ivan Li, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6437; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0043; Directorate Identifier 2007-NM-058-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with a notice of proposed rulemaking
(NPRM)for an AD (the “original NPRM”) to supersede AD 94-15-06, amendment 39-8977 (59 FR 37659, July 25, 1994). The original NPRM applied to certain Boeing Model 747 series airplanes. The original NPRM was published in the **Federal Register** on October 17, 2007 (72 FR 58777). The original NPRM proposed to retain certain requirements of AD 94-15-06. The original NPRM also proposed to replace a previous high-frequency eddy current
(HFEC)inspection method with a new HFEC inspection method, add a one-time inspection for cracking of certain airplanes, and terminate the adjustment factor for the inspection compliance times based on cabin differential pressure. The original NPRM also proposed to require an inspection at an additional lap joint. Actions Since Original NPRM Was Issued Since we issued the original NPRM, we have determined that the requirements of AD 94-15-06 included additional errors in lap joint locations that would require a general visual inspection for countersunk fasteners for certain Boeing Model 747SP airplanes. The errors are as follows: • The requirements of AD 94-15-06 included body station
(BS)520 to 1000 at stringer (S)-34L, S-34R, S-39L, S-39R, S-44L, and S-44R, but should have included only BS 560 to 800 at those stringer locations. (See paragraph (j)(2) of this supplemental NPRM.) • The requirements of AD 94-15-06 included BS 1480 to 1741 at S-34L, S-34R, S-40L, and S-40R, but should have included only BS 1640 to 1741 at those stringer locations. (See paragraph (j)(2) of this supplemental NPRM.) • The requirements of AD 94-15-06 did not include BS 1741 to 1901 at S-34L, S-34R, S-40L, and S-40R. (See paragraph (q)(1) of this supplemental NPRM.) • The requirements of AD 94-15-06 did not include the lap joint at stringer location S-46L in the list of lap joints requiring inspection for Model 747SP airplanes. We included BS 520 to 1000 at that stringer location in the original NPRM, but should instead have included BS 1640 to 1901. (See paragraph (q)(1) of this supplemental NPRM.) Therefore, we have revised paragraphs (j)(2) and (q)(1) of this supplemental NPRM to correct the body station and stringer locations. Comments We have considered the following comments on the original NPRM. Request To Revise Alternative Methods of Compliance (AMOCs) Paragraph Boeing requests that we revise paragraph (v)(4) of the original NPRM to read: “AMOCs approved previously in accordance with AD 94-15-06 for airplane line numbers 630 through 814 inclusive, are approved as AMOCs for the corresponding provisions of this AD if the AMOC does not involve using the existing sliding probe HFEC or alternate skin inspection method specified in Boeing Service Bulletin 747-53A2312, Revision 2, dated October 8, 1992, or an earlier version. AMOCs approved previously in accordance with AD 94-15-06 for airplane line numbers 201 through 629 inclusive are approved as AMOCs for the corresponding provisions of this AD regardless if the AMOC involves using the existing sliding probe HFEC or alternate skin inspection method specified in Boeing Service Bulletin 747-53A2312, Revision 2, dated October 8, 1992, or an earlier version.” Boeing explains that for airplane line numbers 630 through 814, the sliding probe HFEC inspection method can produce incorrect results due to the possibility that Alodine rivets are installed. However, airplanes with line numbers in the range 201 through 629 did not have Alodine rivets installed in production, and therefore the sliding probe HFEC inspection method is a valid inspection. We agree with the commenter for the reasons stated. We have included the requested information in a revised paragraph (v)(4) and a new paragraph (v)(5) in this supplemental NPRM. Request To Specify Use of Only Revision 3 of Service Bulletin Boeing requests that we specify in paragraph
(q)of the original NPRM that Boeing Alert Service Bulletin 747-53A2312, Revision 3, dated February 8, 2007 (the appropriate source of service information for certain actions proposed in the NPRM), must be used after the effective date of the AD. Boeing explains that this change would ensure that the most recent revision of the service bulletin is followed. We agree with Boeing's request. The procedures in Revision 2 of the service bulletin specify to inspect a smaller area than that specified in Revision 3. Therefore, we have changed paragraph
(q)of this supplemental NPRM to include only Revision 3 of the service bulletin as the appropriate source of service information for doing the proposed actions. Request To Revise “Actions Since Existing AD Was Issued” Section of NPRM Boeing asks that we revise the “Actions Since Existing AD Was Issued” paragraph of the original NPRM to add the words “for certain airplanes” to the end of the following sentence: “The sliding probe HFEC (high frequency eddy current) inspection specified in the previous revisions of the service bulletin would no longer be allowed in this proposed AD.” Boeing explains that Boeing Alert Service Bulletin 747-53A2312, Revision 3, allows using the sliding probe procedure as an alternative HFEC inspection procedure for Group 1 airplanes only, as specified in Note 2 of Figure 5 of the service bulletin. Those airplanes were not delivered with Alodine rivets. We partially agree. We agree that the sliding probe HFEC inspection procedure is an acceptable inspection procedure for Group 1 airplanes, as the commenter explained. However the “Actions Since Existing AD Was Issued” section of the preamble of the original NPRM is not repeated in this supplemental NPRM. Therefore, we have not changed this supplemental NPRM in this regard. Request To Revise “Relevant Service Information” Section of NPRM Boeing asks that we delete the words “and repair if necessary” from the end of the following sentence in the “Relevant Service Information” section of the original NPRM: “However, Revision 3 * * * gives instructions for a special (one-time) inspection for cracking of airplanes * * * and on which the sliding probe HFEC inspection method was used during the last skin inspection, and repair if necessary.” Boeing states that this change would eliminate potential confusion because the sliding probe inspection does not apply to modifications or repairs. We disagree with the requested change. The phrase “repair if necessary” is intended to state that the repair is necessary if a crack is found during the special (one-time) inspection. Furthermore, the “Relevant Service Information” section is not repeated in this supplemental NPRM. Therefore, we have not changed this supplemental NPRM in this regard. Request To Capitalize “Alodine” Boeing points out that the term “Alodine” in the original NPRM should be capitalized because “Alodine” is a trademarked name. We agree. We have revised several sections of this supplemental NPRM to reflect this change. Explanation of Clarification We have clarified paragraph (p), “Post-modification Inspections for all Airplanes,” of this supplemental NPRM to specify that the post-modification inspection is done at all fastener locations where a countersunk fastener was found during the inspection required by paragraph
(j)or (q)(1) of the proposed AD. FAA's Determination and Proposed Requirements of the Supplemental NPRM The changes to the body station and stringer locations and the change to the service information specified in paragraph
(q)discussed above expand the scope of the original NPRM; therefore, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment on this supplemental NPRM. Costs of Compliance There are about 348 airplanes in the worldwide fleet. We estimate that this proposed AD would affect 90 airplanes of U.S. registry. The issue associated with Alodine-coated aluminum rivets occurs on 162 airplanes in the worldwide fleet and affects 24 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The average labor rate is $80 per work hour. Estimated Costs Action Work hours Parts Number of affected airplanes Cost per airplane Fleet cost Inspections (required by AD 94-15-06 and retained in this AD) 14 $0 90 $1,120, per inspection cycle $100,800, per inspection cycle. Inspections (required by AD 94-15-06 and retained in this AD) 82 0 90 $6,560, per inspection cycle $590,400, per inspection cycle. Modification (required by AD 94-15-06 and retained in this proposed AD) 124 ( 1 ) 90 $9,920 $892,800. One-time inspection (new proposed action) 4 0 24 $320 $7,680. 1 Minimal. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. *For the reasons discussed above, I certify that the proposed regulation:* 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this supplemental NPRM and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by removing amendment 39-8977 (59 FR 37659, July 25, 1994) and by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-0043; Directorate Identifier 2007-NM-058-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by June 2, 2008. Affected ADs
(b)This AD supersedes AD 94-15-06. Applicability
(c)This AD applies to Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747SR, and 747SP series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 747-53A2312, Revision 3, dated February 8, 2007. Unsafe Condition
(d)This AD results from reports of fuselage skin cracks found at certain countersunk fastener locations in the upper row of lap joints near the wing-to-body fairings, and from a report that the presence of Alodine-coated rivets could cause faulty results during the required inspections using the optional sliding probe HFEC inspection method specified in AD 94-15-06. We are issuing this AD to prevent reduced structural integrity of the fuselage. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Requirements of AD 94-15-06 With Revised Body Station and Stringer Locations Inspections for Airplanes Having Line Numbers 201 through 765 Inclusive
(f)For airplanes having line numbers 201 through 765 inclusive: Conduct a high frequency eddy current
(HFEC)inspection to detect cracking of the lower lobe lap joints in the vicinity of the wing-to-body fairings, in accordance with Boeing Alert Service Bulletin 747-53A2312, dated June 12, 1989; Revision 1, dated March 29, 1990; Revision 2, dated October 8, 1992; or Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD; at the time specified in paragraph (f)(1), (f)(2), (f)(3), or (f)(4) of this AD, as applicable. As of the effective date of this AD, only Revision 3 shall be used. Repeat this inspection thereafter at intervals not to exceed 4,000 landings until the inspection required by paragraph
(j)of this AD is accomplished.
(1)For airplanes that have accumulated less than 11,200 total landings as of February 5, 1990 (the effective date of AD 90-01-07, amendment 39-6440, which was superseded by AD 94-15-06): Prior to the accumulation of 11,000 total landings, or within the next 1,000 landings after February 5, 1990, whichever occurs later.
(2)For airplanes that have accumulated 11,200 or more total landings but less than 15,201 total landings as of February 5, 1990: Within the next 1,000 landings after February 5, 1990, or prior to the accumulation of 15,500 total landings, whichever occurs earlier.
(3)For airplanes that have accumulated 15,201 or more total landings but less than 18,200 total landings as of February 5, 1990: Within the next 300 landings after February 5, 1990, or prior to the accumulation of 18,250 total landings, whichever occurs earlier.
(4)For airplanes that have accumulated 18,200 or more landings as of February 5, 1990: Within the next 50 landings after February 5, 1990. Repair and Modification for Airplanes Having Line Numbers 201 Through 765 Inclusive
(g)For airplanes having line numbers 201 through 765 inclusive: Accomplish the requirements of paragraphs (g)(1) and (g)(2) of this AD.
(1)If any cracking is detected during the inspections required by paragraph
(f)of this AD, prior to further flight, repair in accordance with Boeing Alert Service Bulletin 747-53A2312, dated June 12, 1989; Revision 1, dated March 29, 1990; Revision 2, dated October 8, 1992; or Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD. As of the effective date of this AD, only Revision 3 shall be used.
(2)Prior to the accumulation of 20,000 total landings, or within the next 3,000 landings after February 5, 1990 (the effective date of AD 90-01-07), whichever occurs later, modify the airplane by replacing countersunk fasteners in the upper row of the lower lobe lap joints in the vicinity of the wing-to-body fairings with protruding head fasteners, in accordance with the procedures described in Boeing Alert Service Bulletin 747-53A2312, dated June 12, 1989; Revision 1, dated March 29, 1990; Revision 2, dated October 8, 1992; or Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD. As of the effective date of this AD, only Revision 3 shall be used. Adjustments for Cabin Differential Pressure for Airplanes Having Line Numbers 201 Through 765 Inclusive
(h)For airplanes having line numbers 201 through 765 inclusive: Before the effective date of this AD, for purposes of complying with paragraphs
(f)and
(g)of this AD, the number of landings may be determined to equal the number of pressurization cycles where the cabin pressure differential was greater than 2.0 psi.
(i)For airplanes having line numbers 201 through 765 inclusive: Before the effective date of this AD, for Model 747SR series airplanes only, based on continued mixed operation of lower cabin differentials, the inspection and modification compliance times specified in paragraphs
(f)and
(g)of this AD may be multiplied by a 1.2 adjustment factor. General Visual Inspection for Countersunk Fasteners for All Airplanes
(j)*For all airplanes:* Prior to the accumulation of 11,000 total landings, or within 1,000 landings after August 24, 1994 (the effective date of AD 94-15-06), whichever occurs later, conduct a general visual inspection, unless previously accomplished within the last 3,000 landings prior to August 24, 1994, to determine if countersunk fasteners have been installed in the lap joints listed in paragraph (j)(1) or (j)(2) of this AD, as applicable, in accordance with the procedures described in Boeing Service Bulletin 747-53A2312, Revision 2, dated October 8, 1992; or Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD. As of the effective date of this AD, only Revision 3 shall be used. Accomplishment of this inspection terminates the inspection requirements of paragraph
(f)of this AD.
(1)For Model 747-100, -200, -300, -400, and 747SR series airplanes: From body stations
(BS)741 to 1000 at stringers (S)-34L, S-34R, S-39L, S-39R, S-44L, and S-44R, and from BS 1480 to 1741 at S-34L, S-34R, S-40L, and S-40R.
(2)For Model 747SP series airplanes: From BS 560 to 800 at S-34L, S-34R, S-39L, S-39R, S-44L, and S-44R, and from BS 1640 to 1741 at S-34L, S-34R, S-40L, and S-40R. Corrective Action for Countersunk Fasteners for All Airplanes
(k)*For all airplanes:* If no countersunk fastener is found in the upper row of a lap joint during the inspection required by paragraph
(j)of this AD, no further action is required by this AD for that lap joint.
(l)*For all airplanes:* If any countersunk fastener is found in the upper row of a lap joint during the inspection required by paragraph
(j)of this AD, prior to further flight, perform a high frequency eddy current
(HFEC)inspection to detect cracking at all fastener locations in the lap joint where a countersunk fastener was found during the inspection required by paragraph
(j)of this AD, in accordance with the procedures described in Boeing Service Bulletin 747-53A2312, Revision 2, dated October 8, 1992; or Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD. As of the effective date of this AD, only Revision 3 shall be used. Repetitive Inspections
(m)If no cracking is detected during any inspection required by paragraphs
(l)and
(q)of this AD, at any fastener location where a countersunk fastener was found during the inspection required by paragraph
(j)or (q)(1) of this AD, repeat the HFEC inspection thereafter at intervals not to exceed 4,000 landings, in accordance with the procedures described in Boeing Service Bulletin 747-53A2312, Revision 2, dated October 8, 1992; or Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD. As of the effective date of this AD, only Revision 3 shall be used. As an alternative to the HFEC inspection, operators may perform a detailed inspection to detect cracking at any fastener location where a countersunk fasteners was found, in accordance with the procedures described in Boeing Service Bulletin 747-53A2312, Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD. Perform the detailed inspection within the next 4,000 landings after the HFEC inspection required by paragraph
(l)of this AD, and repeat the inspection thereafter at intervals not to exceed 500 landings. At any of the subsequent inspection cycles, operators may use either inspection method provided that the corresponding inspection interval is used to determine the compliance time of the next inspection.
(n)If cracking is detected during any inspection required by paragraph (l), (m), (p), or
(q)of this AD, at any fastener location where a countersunk fastener was found during the inspection required by paragraph
(j)or (q)(1) of this AD, prior to further flight, repair and modify that lap joint in accordance with Boeing Service Bulletin 747-53A2312, Revision 2, dated October 8, 1992; or Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD. As of the effective date of this AD, only Revision 3 shall be used. Accomplishment of this repair and modification terminates the repetitive inspections required by paragraph
(m)of this AD for that lap joint. Modification of Countersunk Fasteners for All Airplanes
(o)For all airplanes: Prior to the accumulation of 20,000 total landings or within 1,000 landings after August 24, 1994, whichever occurs later, modify all fastener locations where a countersunk fastener was found during the inspections required by paragraph
(j)of this AD, in accordance with the procedures described in Boeing Service Bulletin 747-53A2312, Revision 2, dated October 8, 1992; or Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD. As of the effective date of this AD, only Revision 3 shall be used. For purposes of complying with the requirements of this paragraph, fastener locations that were previously modified in accordance with paragraph
(g)or
(n)of this AD do not need to be modified again. Accomplishment of this modification terminates the repetitive inspections required by paragraph
(m)of this AD for the modified fastener locations. Post-Modification Inspections for All Airplanes
(p)For all airplanes: Prior to the accumulation of 10,000 total landings following the modification required by paragraph (g), (n), (o),
(q)or
(s)of this AD, perform an HFEC inspection to detect cracking at all fastener locations where a countersunk fastener was found during the inspection required by paragraph
(j)or (q)(1) of this AD, and repeat this inspection thereafter at intervals not to exceed 4,000 landings, in accordance with the procedures described in Boeing Service Bulletin 747-53A2312, Revision 2, dated October 8, 1992; or Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD. As of the effective date of this AD, only Revision 3 shall be used. New Requirements of This AD General Visual Inspection for Countersunk Fasteners and Modification for Model 747SP Airplanes at Stringers S-34L, S-34R, S-40L, S-40R, and S-46L
(q)For Model 747SP series airplanes having line numbers 201 through 814 inclusive, do the actions in paragraphs (q)(1) and (q)(2) of this AD at the times specified in those paragraphs.
(1)Prior to the accumulation of 11,000 total landings, or within 1,000 landings as of the effective date of this AD, whichever occurs later, unless previously accomplished within the last 3,000 landings prior to the effective date of this AD, conduct a general visual inspection of the lap joint from BS 1640 to 1901 at stringer S-46L, and from BS 1741 to 1901 at S-34L, S-34R, S-40L, and S-40R, to determine if countersunk fasteners have been installed in the specified area, in accordance with the procedures described in Boeing Service Bulletin 747-53A2312, Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD.
(i)If no countersunk fastener is found in the upper row of the lap joint during the inspection, no further action is required by this AD for the lap joint.
(ii)If any countersunk fastener is found in the upper row of the lap joint, prior to further flight, perform an HFEC inspection to detect cracking at all fastener locations where a countersunk fastener was found, in accordance with the procedures described in Boeing Service Bulletin 747-53A2312, Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD. A. If no cracking is found, repeat the inspection thereafter in accordance with the requirements of paragraph
(m)of this AD. B. If any cracking is found, prior to further flight, repair and modify the lap joint as required by paragraph
(n)of this AD.
(2)Prior to the accumulation of 20,000 total landings, or within 1,000 landings as of the effective date of this AD, whichever occurs later, modify all fastener locations where a countersunk fastener was found, during the inspection required by paragraph (q)(1) of this AD, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 747-53A2312, Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD. For purposes of complying with the requirements of this AD, fastener locations that were previously modified in accordance with paragraph
(n)of this AD do not need to be modified again. Accomplishment of this modification terminates the repetitive inspections required by paragraph
(m)of this AD for the modified fastener locations. Adjustments to Compliance Time: Cabin Differential Pressure
(r)For the purposes of calculating the compliance threshold and repetitive intervals for actions required by paragraphs
(f)and
(g)of this AD, as of the effective date of this AD: All flight cycles, including the number of flight cycles in which cabin differential pressure is at 2.0 psi or less, must be counted when determining the number of flight cycles that have occurred on the airplane, and a 1.2 adjustment factor may not be used. However, for airplanes on which the repetitive intervals for the actions required by paragraph
(f)of this AD have been calculated in accordance with paragraph
(h)and/or
(i)of this AD by excluding the number of flight cycles in which cabin differential pressure is at 2.0 pounds psi or less, and/or by using a 1.2 adjustment factor: Continue to adjust the repetitive intervals in accordance with paragraph
(h)and/or
(i)of this AD until the next inspection required by paragraph
(f)of this AD is accomplished. Thereafter, no adjustment to compliance times based on paragraph
(h)and/or
(i)of this AD is allowed. Special One-Time Inspection for Cracking of Certain Airplanes
(s)For airplanes with line numbers 630 through 814 inclusive that meet the conditions specified in paragraphs (s)(1) and (s)(2) of this AD: Within 300 flight cycles after the effective date of this AD, or within 500 flight cycles after the most recent sliding probe inspection done in accordance with Boeing Alert Service Bulletin 747-53A2312, Revision 1, dated March 29, 1990; or Revision 2, dated October 8, 1992; whichever occurs later, do a special one-time HFEC inspection or a special one-time detailed inspection for cracking, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2312, Revision 3, dated February 8, 2007. If any cracking is found in a lap joint, before further flight, repair and modify that lap joint in accordance with Boeing Service Bulletin 747-53A2312, Revision 3, dated February 8, 2007; except as provided by paragraph
(u)of this AD. Accomplishment of this repair and modification terminates the repetitive inspections required by paragraph
(m)of this AD for that lap joint. This special one-time inspection is not required for lap joints that have been modified in accordance with paragraph (g), (n), (o), or
(q)of this AD.
(1)Airplanes that have not been modified in accordance with paragraph
(g)or
(o)of this AD.
(2)Airplanes on which the sliding probe HFEC inspection method specified in Boeing Service Bulletin 747-53A2312, Revision 1, dated March 29, 1990; or Revision 2, dated October 8, 1992; was used during the last skin inspection required by paragraph (f), (l), or
(m)of this AD. Actions After the Special One-Time Inspection if No Cracking Is Found
(t)For airplanes specified in paragraph
(s)of this AD on which no cracking is found during the special one-time inspection, do the applicable repetitive inspections specified in paragraph (t)(1) or (t)(2) of this AD.
(1)If the special one-time inspection was done using the HFEC inspection method in accordance with paragraph
(s)of this AD, perform the next inspection required by paragraph
(m)of this AD within the next 4,000 flight cycles after doing the inspection required by paragraph
(s)of this AD, and repeat the inspection thereafter in accordance with paragraph
(m)of this AD.
(2)If the special one-time inspection was done using the detailed inspection method in accordance with paragraph
(s)of this AD, perform the next inspection required by paragraph
(m)of this AD within the next 500 flight cycles after doing the inspection required by paragraph
(s)of this AD, and repeat the inspection thereafter in accordance with paragraph
(m)of this AD. Contacting the Manufacturer
(u)Where Boeing Alert Service Bulletin 747-53A2312, Revision 3, dated February 8, 2007, specifies to contact Boeing for appropriate action for a repair or inspection, before further flight, do the applicable action in paragraph (u)(1) or (u)(2) of this AD.
(1)Do the repair using a method approved in accordance with the procedures specified in paragraph
(v)of this AD.
(2)Do the inspection using a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. For a repair method to be approved by the Manager, Seattle ACO, as required by this paragraph, the Manager's approval letter must specifically refer to this AD. Alternative Methods of Compliance (AMOCs) (v)(1) The Manager, Seattle ACO, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(3)An AMOC that provides an acceptable level of safety shall be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4)AMOCs approved previously in accordance with AD 94-15-06 for airplane line numbers 630 through 814 inclusive are approved as AMOCs for the corresponding provisions of this AD if the AMOC does not involve using the existing sliding probe HFEC skin inspection method specified in Boeing Service Bulletin 747-53A2312, Revision 2, dated October 8, 1992, or an earlier version. In addition, the provisions of paragraph
(r)of this AD must be applied to AMOCs approved previously in accordance with AD 94-15-06, amendment 39-8977, where applicable.
(5)AMOCs approved previously in accordance with AD 94-15-06 for airplane line numbers 201 through 629 inclusive are approved as AMOCs for the corresponding provisions of this AD. In addition, the provisions of paragraph
(r)of this AD must be applied to AMOCs approved previously in accordance with AD 94-15-06, where applicable. Issued in Renton, Washington, on April 30, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-10060 Filed 5-6-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0194; Directorate Identifier 2007-NM-263-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135BJ Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of comment period. SUMMARY: We are revising an earlier NPRM for the products listed above. This action revises the earlier NPRM by expanding the scope. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Fuel system reassessment, performed according to RBHA-E88/SFAR-88 (Regulamento Brasileiro de Homologacao Aeronautica 88/Special Federal Aviation Regulation No. 88), requires the inclusion of new maintenance tasks in the Critical Design Configuration Control Limitations (CDCCL) and in the Fuel System Limitations (FSL), necessary to preclude ignition sources in the fuel system. * * * The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by May 27, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Po rtal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building, Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0194; Directorate Identifier 2007-NM-263-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We proposed to amend 14 CFR part 39 with an earlier NPRM for the specified products, which was published in the **Federal Register** on February 21, 2008 (73 FR 9500). That earlier NPRM proposed to require actions intended to address the unsafe condition for the products listed above. Since that earlier NPRM was issued, we have determined that for certain airplanes the initial compliance times for doing the tasks specified in paragraph (f)(2) of the earlier NPRM must be reduced. That earlier NPRM resulted from Brazilian Airworthiness Directive 2007-08-01, dated September 27, 2007 (referred to after this as “the MCAI”). The MCAI does not provide an initial compliance time for doing the tasks. In the earlier NPRM we proposed an initial compliance time that started from the effective date of the AD; or the date of issuance of the original Brazilian standard airworthiness certificate or the date of issuance of the original Brazilian export certificate of airworthiness; whichever occurs later. Although unstated in the MCAI, we have determined that the intent of the MCAI is for the initial compliance time to start from the initial delivery date of the airplane in order to address the identified unsafe condition in a timely manner. We have also revised the initial compliance times for clarity by providing a threshold and grace period for each task. We have revised this supplemental NPRM by adding Table 1 to specify the initial compliance times for each task. You may obtain further information by examining the MCAI in the AD docket. Comments We have considered the following comments received on the earlier NPRM. Request To Clarify Compliance Times EMBRAER requests that we revise the NPRM to enable operators to comply if replacement parts are not immediately available. EMBRAER states that paragraph (section) A2.5.1 of Appendix 2 of the EMBRAER Legacy BJ Maintenance Planning Guide
(MPG)MPG-1483, Revision 5, dated March 22, 2007, contains provisions to allow operators to implement the required fuel system limitation inspections in a more timely manner. EMBRAER therefore requests that we revise the NPRM to include paragraph A2.5.1 of the MPG. We do not agree with the request to include MPG paragraph A2.5.1, which describes deferring the first mandatory inspections to the next “C” check (5,000 flight hours). However, as described previously, we have revised paragraph (f)(2) of the supplemental NPRM to clarify the initial compliance times. With these revised compliance times, there should be sufficient spare parts. In addition, if an operator decides that more compliance time is needed, the operator may request an alternative method of compliance
(AMOC)in accordance with paragraph (g)(1) of the supplemental NPRM. Clarification of Increased Costs The original NPRM specified that about 37 airplanes would be affected by that proposed action. We have determined that about 49 airplanes would be affected by this proposed action, and have revised the Costs of Compliance accordingly in this supplemental NPRM. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Certain changes described above expand the scope of the earlier NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this proposed AD. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a **Note** within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 49 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $3,920, 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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Empresa Brasileira de Aeronautica S.A. (Embraer):** Docket No. FAA-2008-0194; Directorate Identifier 2007-NM-263-AD. Comments Due Date
(a)We must receive comments by May 27, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to all EMBRAER Model EMB-135BJ airplanes, certificated in any category. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph
(g)of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane. Subject
(d)*Air Transport Association
(ATA)of America Code 28:* Fuel. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Fuel system reassessment, performed according to RBHA-E88/SFAR-88, requires the inclusion of new maintenance tasks in the Critical Design Configuration Control Limitations (CDCCL) and in the Fuel System Limitations (FSL), necessary to preclude ignition sources in the fuel system. * * * The corrective action is revising the Airworthiness Limitations Section
(ALS)of the Instructions for Continued Airworthiness
(ICA)to incorporate new limitations for fuel tank systems. Actions and Compliance
(f)Unless already done, do the following actions.
(1)The term “MPG,” as used in this AD, means the EMBRAER Legacy BJ Maintenance Planning Guide
(MPG)MPG-1483, Revision 5, dated March 22, 2007.
(2)Before December 16, 2008, revise the ALS of the ICA to incorporate Section A2.5.2, Fuel System Limitation Items, of Appendix 2 of the MPG. For all tasks identified in Section A2.5.2 of Appendix 2 of the MPG, the initial compliance times start from the applicable times specified in Table 1 of this AD; and the repetitive inspections must be accomplished thereafter at the interval specified in section A2.5.2 of Appendix 2 of the MPG, except as provided by paragraphs (f)(4) and
(g)of this AD. Table 1.—Initial Inspections Reference No. Description Compliance time (whichever occurs later) Threshold Grace period 28-11-00-720-001-A00 Functionally Check critical bonding integrity of selected conduits inside the wing tank, Fuel Pump and FQIS connectors at tank wall by conductivity measurements Before the accumulation of 30,000 total flight hours Within 90 days after the effective date of this AD. 28-13-01-720-002-A00 Functionally Check Aft Fuel tank critical bonding integrity of Fuel Pump, FQGS and Low Level SW connectors at tank wall by conductivity measurements Before the accumulation of 30,000 total flight hours Within 90 days after the effective date of this AD. 28-15-04-720-001-A00 Functionally Check Fwd Fuel tank critical bonding integrity of Fuel Pump, FQGS and Low Level SW connectors at tank wall by conductivity measurements Before the accumulation of 30,000 total flight hours Within 90 days after the effective date of this AD. 28-21-01-220-001-A00 Inspect Wing Electric Fuel Pump Connector Before the accumulation of 10,000 total flight hours Within 90 days after the effective date of this AD. 28-23-03-220-001-A00 Inspect Pilot Valve harness inside the conduit Before the accumulation of 20,000 total flight hours Within 90 days after the effective date of this AD. 28-23-04-220-001-A00 Inspect Vent Valve harness inside the conduit Before the accumulation of 20,000 total flight hours Within 90 days after the effective date of this AD. 28-41-01-720-001-A00 Functionally Check Fuel Conditioning Unit
(FCU)Before the accumulation of 10,000 total flight hours Within 90 days after the effective date of this AD. 28-41-03-220-001-A00 Inspect FQIS harness for clamp and wire jacket integrity Before the accumulation of 20,000 total flight hours Within 90 days after the effective date of this AD. 28-46-02-220-001-A00 Aft Fuel Tank Internal Inspection: FQGS harness and Low Level SW harness for clamp and wire jacket integrity Before the accumulation of 20,000 total flight hours Within 90 days after the effective date of this AD. 28-46-04-220-001-A00 Fwd Fuel Tank Internal Inspection: FQGS harness and Low Level SW harness for clamp and wire jacket integrity Before the accumulation of 20,000 total flight hours Within 90 days after the effective date of this AD. 28-46-05-720-001-A00 Functionally Check Auxiliary Fuel Conditioning Unit
(FCU)Before the accumulation of 10,000 total flight hours Within 90 days after the effective date of this AD.
(3)Before December 16, 2008, or within 90 days after the effective date of this AD, whichever occurs first, revise the ALS of the ICA to incorporate items 1, 2, and 3 of Section A2.4, Critical Design Configuration Control Limitation (CDCCL), of Appendix 2 of the MPG.
(4)After accomplishing the actions specified in paragraphs (f)(2) and (f)(3) of this AD, no alternative inspections, inspection intervals, or CDCCLs may be used unless the inspections, intervals, or CDCCLs are part of a later revision of Appendix 2 of the MPG that is approved by the Manager, ANM-116, FAA, or ANAC (or its delegated agent); or unless the inspections, intervals, or CDCCLs are approved as an alternative method of compliance
(AMOC)in accordance with the procedures specified in paragraph
(g)of this AD. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows:
(1)The MCAI specifies a compliance date of “Before December 31, 2008” for doing the ALI revisions. We have already issued regulations that require operators to revise their maintenance/inspection programs to address fuel tank safety issues. The compliance date for these regulations is December 16, 2008. To provide for coordinated implementation of these regulations and this AD, we are using this same compliance date in this AD.
(2)The MCAI specifies a compliance time of 180 days to revise the ALS of the ICA to incorporate items 1, 2, and 3 of Section A2.4 of Appendix 2 of the MPG. This AD requires a compliance time of 90 days to do this revision. This difference has been coordinated with ANAC. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, 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: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to Brazilian Airworthiness Directive 2007-08-01, effective September 27, 2007; and Sections A2.5.2, Fuel System Limitation Items, and A2.4, Critical Design Configuration Control Limitation (CDCCL), of Appendix 2 of the MPG; for related information. Issued in Renton, Washington, on April 30, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-10063 Filed 5-6-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0182; Directorate Identifier 2007-NM-262-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135ER, -135KE, -135KL, and -135LR Airplanes, and Model EMB-145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of comment period. SUMMARY: We are revising an earlier NPRM for the products listed above. This action revises the earlier NPRM by expanding the scope. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Fuel system reassessment, performed according to RBHA-E88/SFAR-88 (Regulamento Brasileiro de Homologacao Aeronautica 88/Special Federal Aviation Regulation No. 88), requires the inclusion of new maintenance tasks in the Critical Design Configuration Control Limitations (CDCCL) and in the Fuel System Limitations (FSL), necessary to preclude ignition sources in the fuel system. * * * The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by May 27, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0182; Directorate Identifier 2007-NM-262-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We proposed to amend 14 CFR part 39 with an earlier NPRM for the specified products, which was published in the **Federal Register** on February 21, 2008 (73 FR 9497). That earlier NPRM proposed to require actions intended to address the unsafe condition for the products listed above. Since that earlier NPRM was issued, we have determined that for certain airplanes the initial compliance times for doing the tasks specified in paragraph (f)(2) of the earlier NPRM must be reduced. That earlier NPRM resulted from Brazilian Airworthiness Directive 2007-08-02, effective September 27, 2007 (referred to after this as “the MCAI”). The MCAI does not provide an initial compliance time for doing the tasks. In the original NPRM, we proposed an initial compliance time that started from the effective date of the AD; or the date of issuance of the original Brazilian standard airworthiness certificate or the date of issuance of the original Brazilian export certificate of airworthiness; whichever occurs later. Although unstated in the MCAI, we have determined that the intent of the MCAI is for the initial compliance time to start from the initial delivery date of the airplane in order to address the identified unsafe condition in a timely manner. We have also revised the initial compliance times for clarity by providing a threshold and grace period for each task. We have revised this supplemental NPRM by adding Table 1 to specify the initial compliance times for each task. You may obtain further information by examining the MCAI in the AD docket. Comments We have considered the following comments received on the earlier NPRM. Request To Clarify Compliance Times EMBRAER and ExpressJet request that we revise the NPRM to include paragraph (section) A2.5.1 of Appendix 2 of EMBRAER EMB-135/ERJ-140/EMB-145 Maintenance Review Board Report
(MRBR)MRB-145/1150, Revision 10, dated August 4, 2006. The commenters assert that paragraph A2.5.1 contains provisions to allow operators to implement the required fuel system limitation inspections in a timely manner. ExpressJet asserts that without the inclusion of paragraph A2.5.1, operators will be non-compliant with the AD immediately upon the inclusion of paragraph A.2.5.2 into the maintenance programs. Finally, ExpressJet asserts that operators will not have sufficient spare parts and states that they have been informed that the manufacturer of replacement parts required by these new limitations will be unable to meet the demand, which could lead to immediate grounding of airplanes. The commenters therefore request that we revise the NPRM to include paragraph A2.5.1 of the MRBR so operators are able to comply with the AD in an achievable time frame. We do not agree with this request to include MRBR paragraph A2.5.1, which describes deferring the first mandatory inspections to the next “C” check (5,000 flight hours). However, as described previously, we have revised the initial compliance times specified in paragraph (f)(2) of the supplemental NPRM. With these revised compliance times, there should be sufficient spare parts. In addition, if an operator decides that more compliance time is needed, the operator may request an alternative method of compliance
(AMOC)in accordance with paragraph (g)(1) of the supplemental NPRM. New Service Information Since the NPRM was issued, we have reviewed sections A2.5.2, Fuel System Limitation Items, and A2.4, Critical Design Configuration Control Limitation (CDCCL), of Appendix 2 of the EMBRAER EMB-135/ERJ-140/EMB-145 MRBR MRB-145/1150, Revision 11, dated September 19, 2007 (we referred to the EMBRAER EMB-135/ERJ-140/EMB-145 MRBR MRB-145/1150, Revision 10, dated August 4, 2006, as the appropriate source of service information for doing the actions specified in the NPRM). No changes were made to the tasks specified in the MRBR. We have revised this AD to refer to Revision 11 of the MRBR. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Certain changes described above expand the scope of the earlier NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this proposed AD. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 704 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $56,320, 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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Empresa Brasileira De Aeronautica S.A. (Embraer):** Docket No. FAA-2008-0182; Directorate Identifier 2007-NM-262-AD. Comments Due Date
(a)We must receive comments by May 27, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to EMBRAER Model EMB-135ER, -135KE, -135KL, and -135LR airplanes, and Model EMB-145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes; certificated in any category; except for Model EMB-145LR airplanes modified according to Brazilian Supplemental Type Certificate 2002S06-09, 2002S06-10, or 2003S08-01. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph
(g)of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane. Subject
(d)Air Transport Association
(ATA)of America Code 28: Fuel. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Fuel system reassessment, performed according to RBHA-E88/SFAR-88, requires the inclusion of new maintenance tasks in the Critical Design Configuration Control Limitations (CDCCL) and in the Fuel System Limitations (FSL), necessary to preclude ignition sources in the fuel system. * * * The corrective action is revising the Airworthiness Limitations Section
(ALS)of the Instructions for Continued Airworthiness
(ICA)to incorporate new limitations for fuel tank systems. Actions and Compliance
(f)Unless already done, do the following actions.
(1)The term “MRBR,” as used in this AD, means the EMBRAER EMB-135/ERJ-140/EMB-145 Maintenance Review Board Report
(MRBR)MRB-145/1150, Revision 11, dated September 19, 2007.
(2)Before December 16, 2008, revise the ALS of the ICA to incorporate Section A2.5.2, Fuel System Limitation Items, of Appendix 2 of the MRBR. For all tasks identified in section A2.5.2 of Appendix 2 of the MRBR, the initial compliance times start from the applicable times specified in Table 1 of this AD; and the repetitive inspections must be accomplished thereafter at the interval specified in Section A2.5.2 of Appendix 2 of the MRBR, except as provided by paragraphs (f)(4) and
(g)of this AD. Table 1.—Initial Inspections Reference No. Description Compliance time (whichever occurs later) Threshold Grace period 28-11-00-720-001-A00 Functionally Check critical bonding integrity of selected conduits inside the wing tank, Fuel Pump and FQIS connectors at tank wall by conductivity measurements Before the accumulation of 30,000 total flight hours Within 90 days after the effective date of this AD. 28-17-01-720-001-A00 Functionally Check critical bonding integrity of Fuel Pump, VFQIS and Low Level SW connectors at tank wall by conductivity measurements Before the accumulation of 30,000 total flight hours Within 90 days after the effective date of this AD. 28-21-01-220-001-A00 Inspect Electric Fuel Pump Connector Before the accumulation of 10,000 total flight hours Within 90 days after the effective date of this AD. 28-23-03-220-001-A00 Inspect Pilot Valve harness inside the conduit Before the accumulation of 20,000 total flight hours Within 90 days after the effective date of this AD. 28-23-04-220-001-A00 Inspect Vent Valve harness inside the conduit Before the accumulation of 20,000 total flight hours Within 90 days after the effective date of this AD. 28-27-01-220-001-A00 Inspect Electric Fuel Transfer Pump Connector Before the accumulation of 10,000 total flight hours Within 90 days after the effective date of this AD. 28-41-01-720-001-A00 Functionally Check Fuel Conditioning Unit
(FCU)Before the accumulation of 10,000 total flight hours Within 90 days after the effective date of this AD. 28-41-03-220-001-A00 Inspect FQIS harness for clamp and wire jacket integrity Before the accumulation of 20,000 total flight hours Within 90 days after the effective date of this AD. 28-41-04-720-001-A00 Functionally Check Ventral Fuel Conditioning Unit
(VFCU)Before the accumulation of 10,000 total flight hours Within 90 days after the effective date of this AD. 28-41-07-220-001-A00 Inspect VFQIS and Low Level SW Harness for clamp and wire jacket integrity Before the accumulation of 20,000 total flight hours Within 90 days after the effective date of this AD.
(3)Before December 16, 2008, or within 90 days after the effective date of this AD, whichever occurs first, revise the ALS of the ICA to incorporate items 1, 2, and 3 of section A2.4, Critical Design Configuration Control Limitation (CDCCL), of Appendix 2 of the MRBR.
(4)After accomplishing the actions specified in paragraphs (f)(2) and (f)(3) of this AD, no alternative inspections, inspection intervals, or CDCCLs may be used unless the inspections, intervals, or CDCCLs are part of a later revision of Appendix 2 of the MRBR that is approved by the Manager, ANM-116, FAA, or ANAC (or its delegated agent); or unless the inspections, intervals, or CDCCLs are approved as an alternative method of compliance
(AMOC)in accordance with the procedures specified in paragraph
(g)of this AD. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows: The MCAI specifies a compliance date of “Before December 31, 2008” for doing the ALI revisions. We have already issued regulations that require operators to revise their maintenance/inspection programs to address fuel tank safety issues. The compliance date for these regulations is December 16, 2008. To provide for coordinated implementation of these regulations and this AD, we are using this same compliance date in this AD. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, 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: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to Brazilian Airworthiness Directive 2007-08-02, effective September 27, 2007; and sections A2.5.2, Fuel System Limitation Items, and A2.4, Critical Design Configuration Control Limitation (CDCCL), of Appendix 2 of the MRBR; for related information. Issued in Renton, Washington, on April 30, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-10065 Filed 5-6-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0521; Directorate Identifier 2008-NM-040-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Following in-flight test deployments, several Air-Driven generators
(ADGs)failed to come on-line. Investigation revealed that, as a result of a wiring anomaly that had not been detected during ADG manufacture, a short circuit was possible between certain internal wires and their metallic over-braided shields, which could result in the ADG not providing power when deployed. * * * The unsafe condition is that failure of the ADG could lead to loss of several functions essential for safe flight. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by June 6, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Fabio Buttitta, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7303; fax
(516)794-5531. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0521; Directorate Identifier 2008-NM-040-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2008-09, dated February 5, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Following in-flight test deployments, several Air-Driven generators
(ADGs)failed to come on-line. Investigation revealed that, as a result of a wiring anomaly that had not been detected during ADG manufacture, a short circuit was possible between certain internal wires and their metallic over-braided shields, which could result in the ADG not providing power when deployed. This directive mandates checking of the ADG and modification of the ADG internal wiring, if required. It also prohibits future installation of unmodified ADGs. The unsafe condition is that failure of the ADG could lead to loss of several functions essential for safe flight. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Bombardier has issued Service Bulletin 601R-24-113, Revision A, dated August 11, 2005. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 686 products of U.S. registry. We also estimate that it would take about 5 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $274,400, or $400 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Bombardier, Inc. (Formerly Canadair):** Docket No. FAA-2008-0521; Directorate Identifier 2008-NM-040-AD. Comments Due Date
(a)We must receive comments by June 6, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes; certificated in any category; having serial numbers
(SNs)7305 through 7990 and 8000 and subsequent. Subject
(d)Air Transport Association
(ATA)of America Code 24: Electrical Power. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Following in-flight test deployments, several Air-Driven generators
(ADGs)failed to come on-line. Investigation revealed that, as a result of a wiring anomaly that had not been detected during ADG manufacture, a short circuit was possible between certain internal wires and their metallic over-braided shields, which could result in the ADG not providing power when deployed. This directive mandates checking of the ADG and modification of the ADG internal wiring, if required. It also prohibits future installation of unmodified ADGs. The unsafe condition is that failure of the ADG could lead to loss of several functions essential for safe flight. Actions and Compliance
(f)Unless already done, do the following actions.
(1)For airplanes having serial number
(SN)7305 through 7990 and 8000 through 8083: Within 12 months after the effective date of this AD, inspect the SN of the installed ADG. A review of airplane maintenance records is acceptable in lieu of this inspection if the serial number of the ADG can be conclusively determined from that review.
(i)If the serial number is not listed in paragraph 1.A of Bombardier Service Bulletin 601R-24-113, Revision A, dated August 11, 2005, no further action is required by this AD.
(ii)If the serial number is listed in paragraph 1.A of Bombardier Service Bulletin 601R-24-113, Revision A, dated August 11, 2005, before further flight, inspect the ADG identification plate and, as applicable, do the actions of paragraph (f)(1)(ii)(A) or (f)(1)(ii)(B) of this AD.
(A)If the identification plate is marked with the symbol “24-2”, no further action is required by this AD.
(B)If the identification plate is not marked with the symbol “24-2”, modify the ADG wiring in accordance with the Accomplishment Instructions of the service bulletin.
(2)For airplanes having SN 7305 through 7990 and 8000 and subsequent: As of the effective date of this AD, no ADG as described in Table 1 of this AD may be installed on any airplane, unless the identification plate of the ADG is identified with the symbol “24-2” (refer to Hamilton Sundstrand Service Bulletin ERPS10AG-24-2 for further information). Table 1.—ADG Identification ADG part No.— Having ADG serial No.— 604-90800-1 (761339C), 604-90800-17 (761339D), or 604-90800-19 (761339E) 0101 through 0132, 0134 through 0167, 0169 through 0358, 0360 through 0438, 0440 through 0456, 0458 through 0467, 0469, 0471 through 0590, 0592 through 0597, 0599 through 0745, 0747 through 1005, or 1400 through 1439.
(3)Actions done before the effective date of this AD according to Bombardier Service Bulletin 601R-24-113, dated April 22, 2004, are considered acceptable for compliance with the corresponding actions specified in this AD, provided the ADG has not been replaced since those actions were done. FAA AD Differences Note 1: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, New York Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Fabio Buttitta, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7303; fax
(516)794-5531. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI Canadian Airworthiness Directive CF-2008-09, dated February 5, 2008, and Bombardier Service Bulletin 601R-24-113, Revision A, dated August 11, 2005, for related information. Issued in Renton, Washington, on April 25, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-10097 Filed 5-6-08; 8:45 am] BILLING CODE 4910-13-P FEDERAL TRADE COMMISSION 16 CFR Part 317 [Project No. P082900] RIN 3084-AB12 Prohibitions On Market Manipulation and False Information in Subtitle B of the Energy Independence and Security Act of 2007 AGENCY: Federal Trade Commission. ACTION: Advance notice of proposed rulemaking; request for public comment. SUMMARY: The Federal Trade Commission (FTC or Commission) is requesting comment on the manner in which it should carry out its rulemaking responsibilities under Section 811 of Subtitle B of Title VIII of The Energy Independence and Security Act of 2007 (EISA). DATES: Comments must be received on or before June 6, 2008. ADDRESSES: Interested parties are invited to submit written comments electronically or in paper form. Comments should refer to “Market Manipulation Rulemaking, P082900” to facilitate the organization of comments. Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with Commission Rule 4.9(c). 1 1 The comment must be accompanied by an explicit request for confidential treatment, including the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. The request will be granted or denied by the Commission’s General Counsel, consistent with applicable law and the public interest. *See* Commission Rule 4.9(c), 16 CFR 4.9(c) (2008). Because paper mail in the Washington-area, and specifically to the FTC, is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted by using the following weblink: *https://secure.commentworks.com/ftc-marketmanipulationANPR/* (and following the instructions on the web-based form). To ensure that the Commission considers an electronic comment, you must file it on the web-based form at the weblink ( *https://secure.commentworks.com/ftc-marketmanipulationANPR/* ). If this notice appears at *http://www.regulations.gov* , you may also file an electronic comment through that Web site. The Commission will consider all comments that regulations.gov forwards to it. You may also visit the FTC website at ( *http://www.ftc.gov/opa/index.shtml* ) to read the Advance Notice of Proposed Rulemaking and the news release describing it. A comment filed in paper form should include the “Market Manipulation Rulemaking, P082900” reference both in the text and on the envelope, and should be mailed to the following address: Federal Trade Commission, Market Manipulation Rulemaking, P.O. Box 2846, Fairfax, VA 22031-0846. This address does not accept courier or overnight deliveries. Courier or overnight deliveries should be delivered to: Federal Trade Commission/Office of the Secretary, Room H-135 (Annex G), 600 Pennsylvania Avenue, NW, Washington, DC 20580. The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC website, to the extent practicable, at *http://www.ftc.gov* . As a matter of discretion, the FTC makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC website. More information, including routine uses permitted by the Privacy Act, may be found in the FTC’s privacy policy, at ( *http://www.ftc.gov/ftc/privacy.htm* ). FOR FURTHER INFORMATION CONTACT: John H. Seesel, Associate General Counsel for Energy, Federal Trade Commission, Market Manipulation Rulemaking, P.O. Box 2846, Fairfax, VA 22031-0846,
(202)326-3772. SUPPLEMENTARY INFORMATION: I. Statutory Framework Subtitle B of EISA, which became effective on December 19, 2007, 2 includes two substantive sections respectively entitled “Prohibition On Market Manipulation” (Section 811) and “Prohibition On False Information” (Section 812). Section 811 prohibits “any person” from directly or indirectly
(1)using or employing “any manipulative or deceptive device or contrivance,”
(2)“in connection with the purchase or sale of crude oil gasoline or petroleum distillates at wholesale,”
(3)that violates a rule or regulation that the Federal Trade Commission “may prescribe as necessary or appropriate in the public interest or for the protection of United States citizens.” Section 812 prohibits “any person” from reporting information that is “required by law to be reported” — and that is “related to the wholesale price of crude oil gasoline or petroleum distillates” — to a Federal department or agency if the person
(1)“knew, or reasonably should have known, [that] the information [was] false or misleading;” and
(2)intended such false or misleading information “to affect data compiled by the department or agency for statistical or analytical purposes with respect to the market for crude oil, gasoline, or petroleum distillates.” 2 Pub. L. 110-140, 121 Stat. 1723 (December 19, 2007), Title VIII, Subtitle B, *to be codified* at 42 U.S.C. 17301-17305. Section 813 provides that Subtitle B “shall be enforced by the Federal Trade Commission in the same manner, by the same means, and with the same jurisdiction” as though “all applicable terms” of the Federal Trade Commission Act (FTC Act) were incorporated into and made a part of Subtitle B. Consequently, any entity subject to Commission jurisdiction under the FTC Act is subject to the Commission’s enforcement of Subtitle B, and must comply with Section 812 and any rule promulgated under Section 811 of Subtitle B. 3 Section 813 further provides that the violation of any provision of Subtitle B “shall be treated as an unfair or deceptive act or practice proscribed under a rule issued under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)),” even though rules and regulations that the Commission may prescribe are to be issued under Subtitle B. 4 3 Section 811 and Section 812 of Subtitle B expressly cover “any person.” The Administrative Procedure Act, 5 U.S.C. 551(2), defines “person” as including “an individual, partnership, corporation, association, or public or private organization other than an agency.” Similarly, the FTC’s jurisdiction under the FTC Act covers “persons, partnerships, or corporations.” 15 U.S.C. 45(a)(2). While the FTC Act applies broadly, certain entities are wholly or partly exempt from Commission authority under that Act. These include banks, savings and loan institutions, federal credit unions, transportation and communications common carriers, air carriers, and livestock firms. 15 U.S.C. 45(a)(2). In addition, the term “corporation,” as defined in Section 4 of the FTC Act, does not extend to entities not organized to carry on business for their own profit or that of their members. 15 U.S.C. 44. 4 *See* EISA Section 811 (defining acts or practices that shall be unlawful under “rules and regulations as the Federal Trade Commission may prescribe as necessary or appropriate in the public interest or for the protection of United States citizens”). Because the rulemaking procedures for the issuance of trade regulation rules are limited to rules promulgated “under” Section 18(a)(1)(B) of the FTC Act ( *see* 15 U.S.C. 57a(a)(1)(B)), the issuance of rules and regulations under EISA Section 811 is instead governed by the notice-and-comment requirements of the Administrative Procedure Act, 5 U.S.C. 553, and Part 1, Subpart C, of the Commission Rules of Practice for the adoption of non-Section 18 rules. *See* 16 CFR 1.21-1.26. The Commission could seek a number of different types of relief against a person who violated Subtitle B. In particular, Section 13(b) of the FTC Act permits the Commission to file a federal court civil action seeking a temporary restraining order or a preliminary injunction to prevent any “person, partnership, or corporation” from violating a rule promulgated under EISA Section 811 or from violating EISA Section 812, and to secure a permanent injunction “in proper cases.” In such a proceeding, the Commission would also be able to secure corollary equitable relief, such as an asset freeze, disgorgement, and/or the appointment of a receiver. 15 U.S.C. 53(b). Moreover, Section 19 of the FTC Act permits the Commission to file a federal court civil action in its own name against any person, partnership, or corporation that “violates any rule . . . respecting unfair or deceptive acts or practices . . . ,” 5 and permits the court to grant relief needed: 5 15 U.S.C. 57b(a)(1). to redress injury to consumers or other persons, partnerships, and corporations resulting from the rule violation . . . [including but not limited to] rescission or reformation of contracts, the refund of money or return of property, the payment of damages, and public notification respecting the rule violation. . . . 6 6 15 U.S.C. 57b(b). Furthermore, Section 5(m)(1)(A) of the FTC Act permits the Commission, by referral to the Department of Justice, to file a federal court civil action to recover civil penalties of up to $11,000 7 per violation from: 7 This amount has been adjusted upward from the original statutory amount of $10,000 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996. 28 U.S.C. 2461. any person, partnership, or corporation which violates any rule under [the FTC Act] respecting unfair or deceptive acts or practices . . . with actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is unfair or deceptive and is prohibited by such rule. 8 8 15 U.S.C. 45(m)(1)(A). Section 16(a)(1) of the FTC Act requires the Commission to refer such actions to the United States Attorney General in the first instance, and permits the Commission to file such actions in its own name if “the Attorney General fails within 45 days after receipt of such notification to commence . . . such action.” 15 U.S.C. 56(a)(1). Because Section 813 of the EISA provides that a violation of Subtitle B shall be treated as a violation of such a rule, any person that violates Subtitle B is subject to these civil penalties. Section 814(a) of Subtitle B further provides that — “[i]n addition to any penalty applicable” under the FTC Act — “any supplier that violates section 811 or 812 shall be punishable by a civil penalty of not more than $1,000,000.” 9 Both Section 5(m)(1)(C) of the FTC Act, 15 U.S.C. 45(m)(1)(C), and Section 814(c)(1) of the EISA provide that each day of a continuing violation shall be considered a separate violation. 9 It is not clear whether the use of the term “supplier” in Section 814 is intended to limit use of the remedy available under that section to violations committed by suppliers through *sales* of crude oil, gasoline, or petroleum distillates, or was intended to extend to violations committed by suppliers through *purchases* of such products as well. Commenters are encouraged to discuss this point. Section 815(a) provides that nothing in Subtitle B “limits or affects” Commission authority “to bring an enforcement action or take any other measure” under the FTC Act or “any other provision of law.” Section 815(b) provides that “[n]othing in [Subtitle B] shall be construed to modify, impair, or supersede the operation”
(1)of any of the antitrust laws (as defined in Section 1(a) of the Clayton Act, 15 U.S.C. 12(a)) or
(2)of Section 5 of the FTC Act “to the extent that . . . [S]ection 5 applies to unfair methods of competition.” Section 815(c) provides that nothing in Subtitle B “preempts any State law.” II. Overview of the Advance Notice of Proposed Rulemaking Section 811 applies to violations of “such rules and regulations as the Federal Trade Commission may prescribe as necessary or appropriate in the public interest or for the protection of United States citizens.” This Advance Notice of Proposed Rulemaking seeks public comment from interested parties, including other federal agencies and the States, on whether, and if so in what manner, the Commission should promulgate a rule pursuant to Section 811 in order to ensure that the rule, on balance, carries out the objectives of the statute by prohibiting practices that constitute manipulative or deceptive devices or contrivances to the benefit of the public interest. 10 10 The prohibitions embodied in Section 812 of EISA became effective with enactment of EISA on December 19, 2007. These prohibitions therefore already apply to any person subject to the jurisdiction granted to the Commission by the FTC Act, and the Commission may seek legal and equitable relief to remedy violations of Section 812 in the manner described above, through civil actions in federal court. The Commission has devoted substantial resources to enforcing the antitrust laws in various parts of the petroleum industry, including in the refining and distribution of crude oil, gasoline, and petroleum distillates. The Commission has also expended significant research efforts in this same space. As a consequence, the Commission and its staff have experience with many parts of the petroleum industry. The Commission will draw upon this foundation in conducting this Rulemaking proceeding. The Commission’s consumer protection efforts provide a second important foundation for conducting this Rulemaking proceeding, and in particular for determining the extent to which the law of unfairness and deception can inform the Commission’s interpretation of a “manipulative or deceptive device or contrivance.” 11 In interpreting Section 5 of the FTC Act, the Commission has determined that a representation, omission, or practice is deceptive if
(1)it is likely to mislead consumers acting reasonably under the circumstances; and
(2)it is material, that is, likely to affect consumers’ conduct or decisions with respect to the product at issue. 12 Section 5 also provides that an act or practice is unfair if the injury to consumers it causes or is likely to cause
(1)is substantial;
(2)is not outweighed by countervailing benefits to consumers or to competition; and
(3)is not reasonably avoidable by consumers themselves. 13 11 The term “manipulative or deceptive” arguably can be read as a single adjective. That is the approach the Federal Energy Regulatory Commission followed in promulgating the Final Rule discussed *infra* , in reliance on the fact that, with respect to Securities Rule 10b-5 cases, the Supreme Court had “concluded that both [manipulative and deceptive] require ‘misrepresentation.’” *Federal Energy Regulatory Commission, 18 CFR Part 1c: Prohibition of Energy Market Manipulation: Final Rule* , 71 FR 4244, 4253 n. 107 (January 26, 2006). By contrast, however, the FTC has for many years vigorously enforced the separate prohibition of “deceptive acts or practices” embodied in Section 5 of the FTC Act, 15 U.S.C. 45. 12 *See generally* Federal Trade Commission Policy Statement on Deception, *appended to Cliffdale Assocs.* , 103 F.T.C. 110, 174-83 (1984). 13 15 U.S.C. 45(n); *see generally* Federal Trade Commission Policy Statement on Unfairness, appended to *International Harvester, Co.* , 104 F.T.C. 949, 1070-76 (1984). Neither deception nor unfairness requires a showing of scienter. As a consequence of the foregoing law enforcement, research, and related efforts — through both its competition mission and its consumer protection mission — the Commission and its staff have gained an understanding of the domestic petroleum industry; of how participants in the industry compete; of how prices of gasoline and other refined petroleum products are determined; and of how particular practices may, in specific circumstances, constitute either unfair methods of competition or unfair or deceptive acts or practices, in violation of Section 5 of the FTC Act. The Commission expects to use this experience and understanding to effectuate the objectives of Subtitle B. Through this Advance Notice of Proposed Rulemaking, the Commission expects to secure new and valuable information concerning how best to achieve those objectives. Commenters are encouraged to review this document in its entirety and offer comments concerning any of the points or questions raised, as well as any other relevant issue. III. The Antecedents of Section 811 and Relevant Legal Precedent The manner in which the courts and regulatory agencies have interpreted provisions similar to those comprising Section 811 is relevant both to formulating a rule under Section 811 and to determining how the resultant formulation will fare in the courts. Public comment will provide critical information in that regard. While there are substantial similarities among prior interpretations and their contexts, there are substantial differences as well. In order to provide a framework within which commenters can develop and provide their own assessments for purposes of considering a rule under Section 811, we offer a brief discussion of the statutory and regulatory antecedents of Section 811, and court interpretations of similar statutes and regulations. The Commission encourages comment on these or any other aspects of precedent that may help to guide the Commission’s approach in this Rulemaking. Establishing a violation of Section 811 first requires a showing that a person 14 directly or indirectly used or employed a “manipulative or deceptive device or contrivance.” In determining the contours of this requirement — including determining the state of mind that is required — commenters are encouraged to address the extent to which the Commission can or should rely on four separate sets of existing statutory and regulatory constructs, discussed below. 14 For the reasons discussed *supra* , the term “person” is used in this document to refer to “person, partnership, or corporation,” consistent with the jurisdictional reach of the FTC Act. A. The Securities Laws The phrase “manipulative or deceptive device or contrivance” derives from the Securities Exchange Act of 1934 (Exchange Act). Section 10(b) of that statute prohibits the use or employment of: any *manipulative or deceptive device or contrivance* in contravention of such rules as the [Securities and Exchange] Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. 15 15 15 U.S.C. 78j(b) (emphasis added). Section 9 of the Exchange Act more specifically addresses “Manipulation of security prices,” and prohibits or limits the use of certain practices with respect to “[t]ransactions relating to purchase or sale of security;” “[t]ransactions relating to puts, calls, straddles, or options;” “[e]ndorsement or guarantee of puts, calls, straddles, or options;” and “practices that affect market volatility.” 15 U.S.C. 78i(a),(b),(c),(h). The Securities and Exchange Commission
(SEC)relied on Section 10(b) of the Exchange Act to promulgate Rule 10b-5, which makes it unlawful for any person:
(a)To employ any device, scheme, or artifice to defraud;
(b)To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading . . .; or
(c)To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. . . . in connection with the purchase or sale of any security. 16 16 17 CFR 240.10b-5(a)-(c) (2008). In addition, the SEC’s rules under Section 10(b) prohibit a number of specific practices in specific circumstances. *See* 17 CFR 240.10b-1 through 240.10b-18. In 1976, the Supreme Court determined that a private cause of action for damages would not lie under Section 10(b) or Rule 10b-5 without proof that the defendant possessed scienter; that is, the “intent to deceive, manipulate, or defraud.” 17 In particular, the Court noted: 17 *Ernst & Ernst v. Hochfelder* , 425 U.S. 185, 193 (1976); *accord, e.g., Tellabs, Inc. v. Makor Issues & Rights, Ltd.* , 551 U.S. ___ (June 21, 2007), slip op. at 1-2, 7; *In re Worlds of Wonder Securities Litigation* , 35 F.3d 1407, 1424 (9th Cir. 1994), *cert. denied* , 116 S. Ct. 185 (1995); *Loveridge v. Dreagoux* , 678 F.2d 870, 875 (10th Cir. 1982). Section 10(b) makes unlawful the use or employment of “any manipulative device or contrivance” in contravention of [Securities and Exchange] Commission rules. The words “manipulative or deceptive” used in conjunction with “device or contrivance” strongly suggest that [Section] 10(b) was intended to proscribe knowing or intentional misconduct. 18 18 *Ernst & Ernst* , 425 U.S. at 197. The Court concluded that the terms “manipulative,” “device,” and “contrivance” . . . make unmistakable a congressional intent to proscribe a type of conduct quite different from negligence. Use of the word “manipulative” is especially significant. It is and was virtually a term of art when used in connection with securities markets. It connotes intentional or willful conduct designed to deceive or defraud investors by controlling or artificially affecting the price of securities. *Id.* at 199 (internal citations omitted). *See also Schreiber v. Burlington Northern, Inc.* , 472 U.S. 1, 6-7 (1985); *Santa Fe Industries, Inc. v. Green* , 430 U.S. 462, 476
(1977)(the term “manipulation” “refers generally to practices, such as wash sales, matched orders, or rigged prices, that are intended to mislead investors by artificially affecting market activity.”). Moreover, the Court found that use of the terms “[t]o use or employ” supported “the view that Congress did not intend [Section] 10(b) to embrace negligent conduct.” 19 The Court concluded that “the language of [Section] 10(b) . . . clearly connotes intentional misconduct. . . .” 20 Soon thereafter, the Court determined that the SEC, as well as private plaintiffs, must: 19 *Id.* at 199 n. 20. 20 *Id.* at 201, *citing United States v. Oregon* , 366 U.S. 643, 648 (1961); *Packard Motor Car Co. v. NLRB* , 330 U.S. 485, 492 (1947); *accord, e.g., Aaron v. Securities and Exchange Commission* , 446 U.S. 680, 690 (1980). establish scienter as an element of a civil enforcement action to enjoin violations of . . . [Section] 10(b) of the [Securities Exchange Act of 1934], and Rule 10b-5 promulgated under that section of the 1934 Act. 21 21 *Aaron v. SEC* , 446 U.S. at 701-702. While the Supreme Court has reserved the question whether reckless behavior is sufficient for civil liability under Section 10(b) and Rule 10b-5, . . . [e]very Court of Appeals that has considered the issue has held that a plaintiff may meet the scienter requirement by showing that the defendant acted intentionally or recklessly, though the Circuits differ on the degree of recklessness required. 22 22 *Tellabs, Inc. v. Makor Issues & Rights, Ltd.* , 551 U.S. ___ (June 21, 2007), slip op. at 7 n. 3, *citing Ernst & Ernst v. Hochfelder* , 425 U.S. at 194 n. 12; *Ottman v. Hanger Orthopedic Group, Inc.* , 353 F.3d 338, 343 (collecting Court of Appeals cases). More generally, the Court of Appeals for the Second Circuit has elaborated that, in order to establish a Rule 10b-5 violation, the SEC must establish that the defendant:
(1)[m]ade a material misrepresentation or a material omission as to which he had a duty to speak, or used a fraudulent device;
(2)with scienter; and
(3)in connection with the purchase or sale of securities. 23 23 *SEC v. Monarch Funding Corp.* , 192 F.3d 295, 308 (2d Cir. 1999). B. The Natural Gas Act and the Federal Power Act The Energy Policy Act of 2005 amended the Natural Gas Act and the Federal Power Act, respectively, to prohibit the same type of conduct that Section 10(b) of the Exchange Act targets — that is, the use or employment of “any manipulative or deceptive device or contrivance (as those terms are used in [Section 10(b) of the Securities Exchange Act of 1934] . . . ).” 24 In 2006, the Federal Energy Regulatory Commission
(FERC)relied on those prohibitions to promulgate two rules — respectively prohibiting natural gas market manipulation and electric energy market manipulation (collectively referred to as the Final Rule). The FERC Final Rule is identical in many respects to SEC Rule 10b-5. 25 FERC also determined to interpret the Final Rule in a manner “consistent with analogous SEC precedent that is appropriate under the circumstances.” 26 In particular, FERC included a scienter requirement, noting that “[t]he final rule is not intended to regulate negligent practices or corporate mismanagement, but rather to deter or punish fraud in wholesale energy markets,” 27 and that “there can be no violation of the final rule, or any of its sections, absent a showing of the requisite scienter.” 28 FERC determined that a showing of recklessness would be sufficient to satisfy the scienter requirement under the FERC Final Rule. 29 FERC expressly declined to incorporate “a specific intent standard” into the Final Rule. 30 24 *Compare* Section 4A of the Natural Gas Act, 15 U.S.C. 717c-1, *with* Section 222 of the Federal Power Act, 16 U.S.C. 824v. 25 18 CFR 1c.1, 1c.2 (2008). 26 *Federal Energy Regulatory Commission, 18 CFR Part 1c: Prohibition of Energy Market Manipulation: Final Rule* , 71 FR 4244, 4246 (January 26, 2006). 27 *Id.* at 4246. 28 *Id.* at 4252; *accord, id.* at 4253, *citing Ernst & Ernst v. Hochfelder* , 425 U.S. at 197; *Aaron v. SEC* , 446 U.S. at 690. 29 *Id.* at 4253-54 and n. 109 (“Courts of appeal are in general agreement that recklessness in some form satisfies the scienter requirement of SEC Rule 10b-5.”) (citations omitted). 30 *Id.* at 4253. FERC relied on the foregoing analysis to determine that it will take action pursuant to the Final Rule in cases where an entity:
(1)[u]ses a fraudulent device, scheme or artifice, or makes a material misrepresentation or a material omission as to which there is a duty to speak under a Commission-filed tariff, Commission order, rule or regulation, or engages in any act, practice, or course of business that operates or would operate as a fraud or deceit upon any entity;
(2)with the requisite scienter;
(3)in connection with the purchase or sale of natural gas or electric energy or transportation of natural gas or transmission of electric energy subject to the jurisdiction of the Commission. 31 31 *Id.* at 4253. FERC defined fraud “generally . . . to include any action, transaction, or conspiracy for the purpose of impairing, obstructing, or defeating a well-functioning market.” 32 FERC also provided examples of practices that would violate the Final Rule because the practices constituted “manipulative or deceptive devices or contrivances.” FERC’s cited practices were already prohibited by its Market Behavior Rule 2 (since-repealed), but included in particular: 32 *Id., citing Dennis v. United States* , 384 U.S. 855, 861 (1966). wash trades, transactions predicated on submitting false information, transactions creating and relieving artificial congestion, and collusion for the purpose of market manipulation. 33 33 *Id.* at 4254. FERC also determined to incorporate the “safe harbor presumptions of compliance and affirmative defenses” available under its Market Behavior Rules into its enforcement of the Final Rule. 34 FERC rejected the argument registered by some commenters that its rule was “vague and overly broad,” noting that it was modeled after SEC Rule 10b-5, and that the courts have determined that the latter rule is neither vague nor overly broad. 35 34 *Id.* at 4255. Thus, for example, FERC will presume that a market participant that “undertakes an action or transaction that is explicitly contemplated in Commission-approved rules and regulations” does not violate the Final Rule. Moreover, if a market participant takes an action or engages in a transaction — at the direction of an Independent System Operator or a Regional Transmission Organization, but not approved by FERC — it can assert that as a defense for the action taken. 35 *Id.* at 4250, *citing United States v. Persky* , 520 F.2d 283 (2d Cir. 1975); *Todd & Co. v. SEC* , 557 F.2d 1008, 1013 (3d Cir. 1977). FERC’s statute specifically limited its application to actions “in connection with a jurisdictional transaction.” Relying on cases addressing Section 10(b) of the SEC, in its Final Rule, FERC defined “in connection with” to mean that “in committing fraud, the entity must have intended to affect, or have acted recklessly to affect, a jurisdictional transaction.” 36 36 *Id.* at 4249. FERC’s first litigated case under the Final Rule provides a helpful illustration of how it intends to enforce the Final Rule in practice. In that case, FERC issued an Order to Show Cause and Notice of Proposed Penalties against hedge fund Amaranth LLC, and two traders, alleging that they had illegally manipulated the price of transactions subject to FERC jurisdiction by trading in the New York Mercantile Exchange (NYMEX) Natural Gas Futures Contracts for February, March, and April of 2006. In particular, the Order alleged that the respondents intentionally manipulated the final, or “settlement,” price of the NYMEX Natural Gas Futures Contract — on three occasions in 2006 — by selling an extraordinary quantity of these contracts during the last 30 minutes of trading before they expired, with the purpose and effect of driving down the settlement price. The settlement price is explicitly used to determine the price for a substantial volume of physical natural gas transactions subject to FERC jurisdiction, and Amaranth had previously taken positions in various financial derivatives that were several times larger — and whose values increased — as a direct result of the fall in the settlement price of each natural gas futures contract. As a consequence, for every dollar Amaranth lost on its sales of the futures contracts, Amaranth gained several dollars on its derivative financial positions. 37 The Order gave Amaranth 30-days to show cause why it should not be assessed $200 million in civil penalties and be required to disgorge profits totaling $59 million, plus interest. The case remains in litigation. 38 37 *Commission Takes Preliminary Action in Two Major Market Manipulation Cases* , Federal Energy Regulatory Commission News (July 26, 2007), available at *http://www.ferc.gov/news/news-releases/2007/2007-3/07-26-07.pdf* . 38 On July 25, 2007, the Commodity Futures Trading Commission
(CFTC)filed a civil enforcement action in federal district court against Amaranth challenging many of the same actions at issue in the FERC proceeding described above. The CFTC is seeking permanent injunctive relief, an award of civil penalties, and other remedial and ancillary relief. The CFTC and FERC both noted that they had coordinated their respective investigations, pursuant to the agencies’ Memorandum of Understanding. The ultimate resolution of the CFTC and FERC cases will provide important guidance concerning the interaction between their respective statutes and rules with respect to manipulation. *See U.S. Commodity Futures Trading Commission Charges Hedge Fund Amaranth and its Former Head Energy Trader, Brian Hunter, with Attempted Manipulation of the Price of Natural Gas Futures* , Commodity Futures Trading Commission News (July 25, 2007), *available at* ( *http://www.cftc.gov/newsroom/enforcementpressreleases/2007/pr5359-07.html.* ) C. The Commodity Exchange Act Interpretation of the first component of Section 811 can also be informed by the manner in which the concept of “manipulation” has been defined in cases arising under the Commodity Exchange Act (CEA). 39 That statute empowers the CFTC, *inter alia* , to bring an administrative enforcement action, or a civil injunctive action in federal district court against: 39 The CEA provides that the CFTC possesses, *inter alia* , “exclusive jurisdiction” for “transactions involving contracts of sale of a commodity for future delivery, traded or executed on a contract market . . . or derivatives transaction execution facility . . . or any other board of trade, exchange, or market. . . .” 7 U.S.C. 2(a)(1)(A). It further provides for non-exclusive CFTC anti-manipulation authority over cash and physical transactions, as well as certain derivatives transactions relating to securities. 7 U.S.C. 2(a)(1)(A), (C), (D). any person (other than a registered entity) [who] is manipulating or attempting to manipulate or has manipulated or attempted to manipulate the market price of any commodity, in interstate commerce, or for future delivery on or subject to the rules of any registered entity. . . . 40 40 7 U.S.C. 9, 13b; *see* 7 U.S.C. 15. The statute defines a “registered entity” as including certain boards of trade designated as contract markets; derivatives transaction execution facilities; and “derivatives clearing organizations.” 7 U.S.C. 1a(29). In addition, Section 9(a)(2) of the CEA makes it a felony for: [a]ny person to manipulate or attempt to manipulate the price of any commodity in interstate commerce, or for future delivery on or subject to the rules of any registered entity, or to corner or attempt to corner any such commodity . . . . 41 41 7 U.S.C. 13(a)(2). The CEA also requires any board of trade (defined as any organized exchange or other trading facility 42 ) that wishes to be designated as a contract market, *inter alia* , to comply with a variety of statutory “Core Principles.” 43 42 7 U.S.C. 1a(2). 43 7 U.S.C. 7(d). The Supreme Court decision in *Merrill Lynch v. Curran* provides an extensive discussion of the origins of futures trading and the CEA, and of how the foregoing statutory proscriptions of manipulation should be interpreted. 44 In particular, the Court held that the primary purpose of the 1974 amendments to the CEA was to protect “against manipulation of markets and to protect any individual who desires to participate in futures market trading.” 45 D. The Sherman Act, the Clayton Act, and the Federal Trade Commission Act 44 *Merrill Lynch, Pierce, Fenner, & Smith, Inc. v. Curran* , 456 U.S. 353 (1982). 45 *Id.* at 372, n. 50. Subsequently, the Commodity Futures Modernization Act of 2000 identified the purposes of the CEA as including, *inter alia* , “to deter and prevent price manipulation or any other disruptions to market integrity. . .” 7 U.S.C. 5(b). *See also Frey v. Commodity Futures Trading Commission* , 931 F.2d 1171, 1175 (7th Cir. 1991). The enactment of Subtitle B raises the important question of the extent to which the Commission should rely upon antitrust and consumer protection precedent as a frame of reference for this Rulemaking proceeding. The legislation gave the Commission new law enforcement tools to prevent both market manipulation and the reporting of false information. However, the extent to which law enforcement agencies have been able to prevent manipulation or deception in the past may provide useful lessons as commenters offer their input as to how best to effectuate EISA Section 811 and the statutory objectives it represents. In the context of antitrust law, the term “manipulative or deceptive device or contrivance” is not a term of art. But, practices that potentially fall within the definition of those terms have been analyzed in the past through the prism of the Sherman Act Section 1 prohibition against certain unreasonable contracts, combinations and conspiracies in restraint of trade; through the Sherman Act Section 2 prohibition against monopolization, attempts to monopolize, and conspiracies to monopolize; and through the FTC Act prohibition against unfair methods of competition. For example, 60 years ago, the Supreme Court addressed the concept of manipulation in the petroleum industry in *United States v. Socony-Vacuum Oil Co* . In that case, 12 oil companies and five individuals violated Section 1 of the Sherman Act by operating the “Mid-Continent Buying Program” and the “East Texas Buying Program.” 46 The defendant participants in these two programs agreed that they would purchase tank cars of “distress gasoline” from independent oil refiners. 47 Thereafter, the participants in the Mid-Continent Buying Program held monthly meetings at which each participant would advise the others of “how much his company would buy and from whom.” 48 46 *United States v. Socony-Vacuum Oil Co., Inc., et al.* , 310 U.S. 150, 181-90 (1940). 47 For example, in the Mid-Continent oil field, 17 independent refiners did not have regular outlets for their gasoline, and because they had to keep their refineries running, they had to sell approximately 600 to 700 tank cars of gasoline each month at “distress” prices. *Id.* at 178-79. For similar reasons, a number of independent refiners in the East Texas oil field had to sell a substantial number of tank cars of gasoline at “distress” prices. *See id.* at 185-90. 48 *Id.* at 182. The East Texas Buying Program followed a similar approach with respect to independent refiners in the East Texas oil field. *Id.* at 185-90. The Supreme Court determined that the: whole scheme was carefully planned and executed to the end that distress gasoline would not overhang the markets and depress them at any time. And as a result of the payment of fair going market prices a floor was placed and kept under the spot markets. Prices rose and jobbers and consumers in the Mid-Western area paid more for their gasoline than they would have paid but for the conspiracy. Competition was not eliminated from the markets; but it was clearly curtailed, since restriction of the supply of gasoline, the timing and placement of the purchases under the buying programs and the placing of a floor under the spot markets obviously reduced the play of the forces of supply and demand. 49 49 *Id.* at 220. The Court determined that the purchases “at or under the market are one species of price-fixing,” 50 and that “there was substantial competent evidence that the buying programs resulted in an increase of spot market prices, of prices to jobbers and of retail prices in the Mid-Western area.” 51 The Court concluded that the buying programs, by stabilizing market prices, constituted “one form of manipulation,” and defined “market manipulation in its various manifestations” as: 50 *Id.* at 223. 51 *Id.* at 251. The Court rejected as irrelevant the defendants’ arguments that the prices at issue were reasonable, and that their activities “merely removed from the market the depressive effect of distress gasoline. . . .” *Id.* at 229. an artificial stimulus applied to (or at times a brake on) market prices, a force which distorts those prices, a factor which prevents the determination of those prices by free competition alone. 52 52 *Id.* at 223. The *Socony-Vacuum* decision is among many in antitrust and consumer protection law that may provide useful guidance to the Commission in determining the metes and bounds of manipulative conduct under Subtitle B. 53 To the extent commenters believe the Commission should be aware of particular antitrust or consumer protection law decisions, commenters are encouraged to discuss the cases and provide an explanation of the lessons to be incorporated from those opinions. 53 Other cases that may be of interest include *Verizon Communications Inc. v. Law Offices of Curtis v. Trinko, LLP* , 540 U.S. 398 (2004); *Eastman Kodak v. Image Technical Services* , 504 U.S. 451, 455-56 (1992); *Aspen Skiing Co. v. Aspen Highlands Skiing Corp.* , 472 U.S. 585, 601 (1985); and *Virtual Maintenance Inc. v. Prime Computer Inc.* , 11 F.3d 660, 662 (6th Cir. 1993). This list is not intended to be exhaustive, but merely illustrative. In addition, unlike the SEC, CFTC, and FERC, the Commission has long had authority to prevent “unfair or deceptive acts or practices.” 54 That prohibition is not limited to “devices or contrivances,” and violations do not require proof of actual fraud or intent to deceive. The Commission seeks comments on any guidance its experience with unfair or deceptive acts or practices should or could provide in implementing its new authority. 55 54 *See supra* for the criteria the Commission uses under the FTC Act. 55 Please note that nothing in connection with this Section 811 Rulemaking, any subsequently enacted rules, or related efforts should be construed to alter the standards associated with establishing a deceptive practice or an unfair practice in a case brought by the Commission. E. Reflecting on the Legal Framework — Questions for Commenters The conduct component of Section 811 derives from a similar prohibition in Section 10(b) of the Securities Exchange Act of 1934 — as implemented by the SEC through its promulgation and enforcement of Rule 10b-5 — and from the 2005 amendments to the Natural Gas Act and the Federal Power Act, as implemented through regulations promulgated and enforced by FERC. The Commodity Exchange Act, as enforced by the CFTC, and the antitrust laws provide additional guidance as to the manner in which the Supreme Court and lower courts have interpreted the manipulation concept. Commenters are encouraged to assess whether, and if so to what extent, a Section 811 rule should incorporate or otherwise reflect any other aspects of these statutory and federal court precedents. Commenters are encouraged to assess whether these statutory and federal court precedents indicate that a Section 811 rule should prohibit a person from using or employing “any manipulative or deceptive device or contrivance” only if that person possesses the scienter — to execute the allegedly manipulative strategy at issue — that is analogous to the general intent to injure competition component of the monopolization offense under Section 2 of the Sherman Act and Section 5 of the Federal Trade Commission Act. In addition, commenters are encouraged to assess whether, and if so to what extent, a Section 811 rule should incorporate or otherwise reflect the FTC Act prohibition of unfair or deceptive acts or practices. 56 56 The Commission notes that neither knowledge nor intent need be shown to prove a deceptive practice or an unfair practice under Section 5 of the FTC Act. *See, e.g., FTC v. Bay Area Business Council, Inc.* , 423 F.3d 627, 635 (7th Cir. 2005); *FTC v. Freecom Communications, Inc.* , 401 F.3d 1192, 1202 (10th Cir. 2005); *FTC v. Amy Travel Serv., Inc.* , 875 F.2d 564, 573-74 (7th Cir. 1989). In addition, in the Commission’s 2006 *Investigation of Gasoline Price Manipulation and Post-Katrina Gasoline Price Increases Report to Congress* , 57 the Commission described and looked for a number of types of practices and circumstances in various components of the petroleum refining and distribution system that might be viewed as manipulative. 58 Commenters are encouraged to discuss whether a Section 811 rule should limit or prohibit any of these types of practices and, if so, in what circumstances, including discussing the direct and indirect benefits and costs of doing so. Commenters are also encouraged to discuss conduct in connection with the purchase and sale of crude oil, which, though outside the scope of the 2006 report, is within the reach of Section 811. 57 Federal Trade Commission Report to Congress, *Investigation of Gasoline Price Manipulation and Post-Katrina Gasoline Price Increases* (Spring 2006). Commenters may consider this report a useful primer on the industry. 58 The Commission examined: “(1) all transactions and practices that are prohibited by the antitrust laws, including the Federal Trade Commission Act, and
(2)*all other transactions and practices, irrespective of their legality under the antitrust laws, that tend to increase prices relative to costs and to reduce output.* ” *Id.* at ii (emphasis added). The Commission made clear, however, that this definition for purpose of the report represented neither existing legal prohibitions nor, in its view, an identification of practices that should be prohibited. IV. Particular Questions For Commenters Below is a general framework within which commenters are encouraged to discuss what they believe the contours of a Section 811 rule should be. The Commission encourages commenters to answer specific questions, and to focus in particular on defining manipulative or deceptive behavior, in order to help the Commission formulate a workable rule that on balance benefits consumers. A. Defining Market Manipulation The Commission is considering various possible definitions of market manipulation for the purpose of this Rulemaking under Section 811. One possible definition is the following: *Market manipulation shall mean knowingly using or employing, directly or indirectly, a manipulative or deceptive device or contrivance — in connection with the purchase or sale of crude oil, gasoline, or petroleum distillates at wholesale — for the purpose or with the effect of increasing the market price thereof relative to costs.* The Commission seeks comment on whether this proposed definition of market manipulation is one under which a rule may be adopted that is “necessary and appropriate in the public interest or for the protection of United States citizens,” as required by Section 811. The Commission also seeks comment on whether an effect on prices should be a necessary element of proof under either a charge of market manipulation or a charge of attempted market manipulation. In addition, the Commission encourages commenters to suggest any other definitions that, in their view, may better address the public policy concern enunciated through the Commission’s new rulemaking authority. B. Manipulative or Deceptive Device or Contrivance As discussed above, Section 811 is modeled on authority previously granted to the SEC, FERC, and the CFTC. The Commission encourages commenters to address how Section 811's rulemaking authority should be exercised in light of the similar authority granted to the SEC and to FERC. In particular, the Commission seeks comments on how legal precedent established for violations of rules addressing manipulation or deceit in regulated behavior (such as securities trading or the execution of transactions carried out by regulated entities) should apply to unregulated behavior, such as the purchase and sale at wholesale of crude oil, gasoline, or petroleum distillates. To what extent (or in what particulars) should the jurisprudence under the other laws addressing manipulation apply under the Commission’s new authority? What should not apply? The Commission encourages commenters to identify both general criteria and specific applications of the other laws, and to explain why each should or should not apply under a Section 811 rule, with a specific discussion of the costs and benefits of application The Commission also seeks comment on the potential costs or benefits of an FTC rule that simply mirrors the language of SEC Rule 10b-5 or the language of the FERC Final Rule. In particular, could a Section 811 rule, that is similar to the rules adopted by the SEC and FERC for their specific purposes, provide sufficient clarity as to prohibited practices in the different context of crude oil, gasoline, and petroleum distillates transactions? In addition, commenters are asked to consider whether a rule that provides more specificity would be adequately broad and flexible to allow the Commission to address new and varied types of manipulation and deception. If the Commission develops a rule with more specific guidance and standards, what should those standards be? In the larger context discussed above, the Commission also seeks comment on the regulatory authority granted to the other federal agencies, and the potential or actual impact on consumer prices from the exercise of this authority. In addition, the Commission encourages commenters to address whether an anti-manipulation rule promulgated under Section 811 could be a mechanism for abuse by customers, competitors, or others. C. Effect on the Market As indicated in a number of the cases discussed above, as well as the FERC rulemaking, the primary focus of the prohibition on manipulation appears to be on practices that are not a reaction to market forces. Instead, the focus is on practices that intentionally, willfully, or recklessly cause distortions in the market, such as artificially raising or depressing prices. Commenters are encouraged to consider whether this should be a focus of a potential Section 811 rule. D. Scienter/State of Mind In determining whether particular conduct violates any of the statutory and regulatory proscriptions, the federal courts have required a showing that the defendants or respondents were not simply negligent, but rather possessed at least the requisite scienter to execute the manipulative practice in question. For example, the courts have interpreted Section 10(b) of the SEA to require a showing of scienter — that is, of intentional, willful, or reckless conduct designed to deceive or defraud by controlling or artificially affecting market prices or market activity. FERC relied on that precedent to incorporate a scienter requirement into its Final Rule. By contrast, the courts and the CFTC have interpreted the CEA and its implementing regulations as requiring a showing of a specific intent to injure a futures market through the execution of an intentionally manipulative strategy. The Commission seeks comment on the appropriate nature and level of scienter for a violation, and on whether that determination should depend on the nature of the practice at issue (and, if so, in what way). An additional question for consideration includes whether the Commission should incorporate either of the above scienter standards into a Section 811 rule. Commenters are encouraged to provide a specific discussion of the costs and benefits of the standard they recommend. E. In Connection With Establishing a violation of Section 811 also requires establishing that the conduct at issue was used or employed “in connection with the purchase or sale of crude oil[,] gasoline[,] or petroleum distillates at wholesale.” 59 As a consequence, Section 811 does not extend to retail sales of gasoline. Instead, it arguably covers sales and purchases starting at the point at which crude oil, gasoline, or a petroleum distillate is sold by the producer or importer, and ending at the point at which it is purchased by a retailer. Commenters are encouraged to discuss how the phrase “in connection with the sale or purchase of crude oil, gasoline, or petroleum distillates at wholesale” should be interpreted. In relying on cases addressing Section 10(b) of the SEA to promulgate its Final Rule, FERC defined “in connection with” to mean that “in committing fraud, the entity must have intended to affect, or have acted recklessly to affect, a jurisdictional transaction.” 60 The Commission specifically seeks guidance as to whether the FERC model is appropriate for adoption by the Commission. 59 The phrase “crude oil gasoline or petroleum distillates,” without commas, is used in Section 811 (as well as in the first clause of Section 812), while the phrase “crude oil, gasoline, or petroleum distillates” (with commas) is used in Section 812(3). This is presumably a non-substantive typographical error; therefore, all parts of both Sections should be read to cover all three types of products (that is, crude oil, gasoline, and petroleum distillates). 60 71 FR 4249, *quoting SEC v. Zandford* , 535 U.S. 813, 825
(2002)(the Supreme Court has construed the “in connection with” requirement broadly, “to encompass many circumstances where securities transactions ‘coincide’ with the overall scheme to defraud”). F. In the Public Interest or For the Protection of United States Citizens Establishing a violation of Section 811 also requires a showing that the practices “used or employed” violate a rule that the Commission has prescribed “as necessary or appropriate in the public interest or for the protection of United States citizens.” Commenters are encouraged to address how the Commission may best ensure that a Section 811 rule satisfies this standard. Commenters are also encouraged to discuss whether antitrust or consumer protection principles should or should not be incorporated at all into a Section 811 rule. For example, the Commission seeks comment on whether a Section 811 rule should conform to traditional antitrust analysis by requiring
(1)the use or employment of “any manipulative or deceptive device or contrivance” to satisfy the anticompetitive conduct component of the offenses of monopolization and attempted monopolization prohibited by Section 2 of the Sherman Act and
(2)the intent and market power components of those offenses to be satisfied under the standards explained throughout antitrust case law. 61 Commentors are asked to explain whether such a construction is necessary or appropriate in the context of this Rulemaking. 61 The Supreme Court has defined market power as the power “‘to force a purchaser to do something that he would not do in a competitive market,’” and as “‘the ability of a single seller to raise price and restrict output.’” *Eastman Kodak Co. v. Image Technical Services* , 504 U.S. 451, 464 (1992), *citing Jefferson Parish Hospital Dist. No. 2 v. Hyde* , 466 U.S. 2, 14 (1984); *accord, e.g.* , *United States v. Dentsply Int’l, Inc* ., 399 F.3d 181, 187 (3d Cir. 2005); *United States v. Microsoft Corp.* , 253 F.3d 34, 51 (D.C. Cir.), *cert. denied* , 534 U.S. 952 (2001). Consistent with that determination, the *Horizontal Merger Guidelines* define market power as to a seller as “the ability profitably to maintain prices above competitive levels for a significant period of time.” *U.S. Dep’t of Justice & Federal Trade Comm'n, Horizontal Merger Guidelines* (1992), Section 0.1, at 4; *accord,* *Tops Markets, Inc. v. Quality Markets, Inc.* , 142 F.3d 90, 99 (2d Cir. 1998); *United States v. Syufy Enters* ., 903 F.2d 659, 665-66 (9th Cir. 1990). As the Commission has noted, although the terms “market power” and “monopoly power” are often treated as synonymous from an economic perspective, market power can be thought of as a continuum along which the power to control prices varies, beginning with the complete absence of market power at one end and ending with monopoly power at the other. *International Telephone & Telegraph Co.* , 104 F.T.C. 280, 411 n. 60 (1984). G. Penalties Section 814 provides civil penalty authority of up to $1,000,000, which can be assessed against “suppliers” for each violation for each day, taking into consideration the seriousness of the violation and any attempts by the violator to mitigate the harm. The Commission seeks comment on whether any potential chilling effect of these penalties on legitimate business behavior should affect the interpretation of, or required state of mind for, a “manipulative deceptive device or contrivance.” The Commission also seeks comment on whether the Section 814 civil penalty authority extends only to violations committed by suppliers through sales of crude oil, gasoline, or petroleum distillates, or is intended to extend to violations committed by suppliers through purchases of such products as well. H. Overlapping Jurisdiction As noted above, Congress has provided anti-manipulation authority to FERC and the CFTC to reach behavior previously not regulated by those agencies. In some cases, this authority may lead to a shared jurisdiction over the same behavior. The manipulation authority provided by Section 811 may subject market participants to similar overlapping agency oversight, and create the potential for market participants to be subject to differing standards of conduct and multiple levels of liability. The Commission seeks comment on the possible effects of this type of overlapping jurisdiction. The Commission also seeks comment on the usefulness of inter-agency information sharing on market manipulation regulation law enforcement; on reducing costs; on speeding enforcement actions; on other potential benefits or costs for consumers and businesses; and, on how it can best harmonize its enforcement efforts with those of FERC and the CFTC. I. Potential Practices The Commission requests comment on the following topic list, but encourages commenters to present any other proposals for formal rule provisions that they may wish to suggest. This list is not to be perceived as a formal proposal to address any of the practices described pursuant to Section 811; rather, it is intended to be illustrative, and to encourage further thinking. • Certain refiners have made public announcements of planned reductions in the overall utilization of their refinery plant(s). The Commission seeks comment on:
(1)whether such practices should be viewed as manipulative;
(2)the perceived harm from such actions, if any;
(3)whether such practices should or would manifest the intent necessary to violate Section 811; and
(4)whether any business justifications balance the perceived harm. • Refiners engage in periodic scheduled maintenance and refinery downtime in order to prevent breakdowns or to change equipment. On the one hand, such maintenance and scheduled downtime are necessary for the safe and efficient operation of petroleum refineries; on the other hand, public announcements of downtime may enable competitors to collude inappropriately. The Commission therefore seeks comment on both the costs and the benefits of a rule restricting public pre-announcements of such downtime. • Wholesale petroleum market participants frequently rely on independent published data for market prices in effecting purchase and sale contracts and other supply arrangements. In the past, Commission staff have received allegations of false or misleading physical sales reports furnished to private reporting entities by market participants in thinly traded petroleum commodity markets. The Commission seeks comment on experiences with this practice, the likelihood the practice could drive false or misleading market prices, the ability of a market manipulation rule effectively to police such activities, and the potential benefits or harm to public data sources or private data compilation services. • The Commission seeks comment on the circumstances, if any, under which a firm’s decision regarding supplying a market (including whether to reduce, increase, or maintain unchanged the amount it supplies) should be considered manipulative or deceptive. Commenters are encouraged to address both the immediate and the long-term costs and benefits to consumers of permitting, prohibiting, or restricting such actions, as well as the effects such decisions would have during a time of national emergency or natural disaster. • Some have argued that market participants with terminal or other storage inventory should be under an affirmative obligation to release inventory during price spikes when the participant knows, or should know, that the release of the product will be profitable. The Commission seeks comment on when such an obligation should be imposed; what possible intent standard should be used as a test for liability; how one should measure profitability in such a circumstance; and, the costs and benefits to consumers of placing such an obligation on potential market suppliers. • FERC and state regulations govern open access to common carrier pipelines. In some circumstances, prospective shippers on a given common carrier pipeline may lack the ability to access that pipeline due to an inability to place product in a terminal from which to enter the pipeline system, or because those shippers lack a terminal from which to exit the pipeline system. The Commission seeks comment on whether a denial of access to a non-regulated terminal may be an act of market manipulation subject to Section 811, and on whether applying the rule to this behavior is likely to result in benefits that outweigh the costs. • Regulated petroleum pipelines may not allow new shippers a share of a pipeline’s capacity when historical shippers seek to transport more petroleum products than the pipeline is capable of transporting. The Commission seeks comment on whether pre-announcements that pipelines are approaching capacity constraints may be a conduit for market manipulation or deceit under Section 811, and on whether applying the rule to this behavior is likely to result in benefits that outweigh the costs. • Accurate cost and volume data for wholesale transactions at all levels of trade, refinery or pipeline outage data, and import and inventory volumes are frequently difficult to construct or are unavailable. The Commission seeks comment on whether it possesses the authority to promulgate a rule under Section 811 requiring a covered person to maintain and submit such information to the Commission or any other government entity, and, if so, whether it should do so, and what particular data it should require. • The Commission seeks comment on how to determine an artificial price. For example, if an entity with market power that was not obtained by improper means, sets its prices above what would have been a competitive level, and as a result, prices in the market are higher than competitive prices, is this an artificial price? Commenters are encouraged to explain how the competitive price should be determined, including during a period in which capacity has declined unexpectedly because of a disaster. Commenters are encouraged to assess, in particular, whether setting the prices above a competitive level should be considered a manipulative device or contrivance; whether that answer would depend on other factors or circumstances, and, if so, on which ones; and what the direct and indirect, short- and long-term effects of treating this as a manipulative device or contrivance would be. • The Commission seeks comment as to what extent or in what circumstances should the distinction between forbidden and permitted business behavior be primarily a function of the intent, purpose, or knowledge of the actor? For example, if a firm holds back inventory during a supply shortage with the intent to raise or expectation of raising immediate prices, but the effect is that the inventory is sold later, when the shortage is more severe, and thus mitigates the more severe shortage, should that be a violation? If a firm decreases the amount of product sold in a tight market in order to grow its business elsewhere, regardless of whether prices in the tight market will rise, should that be a violation? • The Commission encourages commenters, in addressing any of the foregoing practices, to discuss whether, and if so how, a Section 811 rule should account for the fact that the practice is used prior to, during, or in the aftermath of a natural disaster, such as an earthquake or a hurricane. V. Questions Arising From Two Case Studies This part of the Advance Notice of Proposed Rulemaking focuses on two separate series of events that are frequently cited as examples of possible manipulation in energy markets. A. BP Amoco/Atlantic Richfield, FTC Docket No. C-3938 In *BP Amoco/Atlantic Richfield* , the Commission issued a consent order that remedied the anticompetitive effects of the proposed $27 billion merger between BP Amoco p.l.c.
(BP)and Atlantic Richfield Company (ARCO). 62 Under the terms of the settlement, BP was required to divest, among other things, all of ARCO’s assets relating to oil production on Alaska’s North Slope
(ANS)to Phillips Petroleum Company (Phillips). The divestitures required by the consent order fully resolved the competitive concerns that initially led the Commission to seek a preliminary injunction to block the transaction. By requiring the divestiture of all of ARCO’s operations in Alaska, the Commission ensured that BP’s market share in the exploration, production and transportation of ANS crude oil would remain unchanged, and that the number of players would remain the same. 62 *In the Matter of BP Amoco p.l.c. and Atlantic Richfield Company, FTC File No. 9910192, Docket No. C-3938* (August 25, 2000) (hereinafter BP Amoco/ARCO). The divestiture itself is not remarkable for purposes of this Rulemaking. However, the Commission had reason to believe that BP occasionally had exported ANS crude oil to the Far East in order to increase spot prices for ANS crude oil on the West Coast, and that BP benefitted from those higher spot prices because of its status as a merchant marketer. Commenters are encouraged to discuss this scenario, whether this type of conduct is likely to recur, whether this type of conduct still occurs (and if so, how frequently), and whether this type of practice can be characterized as a manipulative or deceptive device or contrivance — in connection with the purchase or sale of crude oil, gasoline, or petroleum distillates at wholesale — that should be prohibited by a Section 811 rule. Commenters are also encouraged to address scenarios such as, for example, when a person or entity determines to hold a supply of crude oil or petroleum product off the coast of the United States for five days — waiting for the price to go up, and thereby shorting the U.S. supply of crude oil or petroleum product — and then sells the crude oil or petroleum product after the price has risen, thereby securing greater revenues than it would have secured if it had simply sold the supply on the first day rather than the fifth. B. Enron The substantial disruptions in Western electricity and natural gas markets in 2000 and 2001 are often cited as the product of market manipulation by Enron Corp. and other energy traders, and the Commission is interested in securing comments on the extent to which those disruptions may provide guidance as to what may constitute the use of a manipulative or deceptive device or contrivance, in connection with the purchase or sale of crude oil, gasoline, or petroleum distillates at wholesale. In May 2001, FERC initiated a staff investigation to determine whether Enron or any other sellers manipulated electricity and natural gas markets in California and other Western states in 2000 and 2001. In a Final Staff Report issued in March 2003, the FERC staff found “significant market manipulation,” but also determined that significant supply shortfalls and a fatally flawed market design were the root causes of the California market meltdown. The underlying supply-demand imbalance and flawed market design greatly facilitated the ability of certain market participants to engage in manipulation. 63 63 *Final Report On Price Manipulation In Western Markets: Fact-Finding Investigation of Potential Manipulation of Electric and Natural Gas Prices, Docket No. PA02-2-000* , Prepared by the Staff of the Federal Energy Regulatory Commission (March 2003), at ES-1 (hereinafter FERC Staff Report), available at ( *http://www.ferc.gov/industries/electric/indus-act/wec/enron/info-release.asp* ) The staff found in particular that markets for natural gas and electricity in California were inextricably linked; that dysfunctions in each market fed off the other during the crisis; that spot gas prices rose to extraordinary levels, facilitating the unprecedented price increase in the electricity market; and that the dysfunctions in the natural gas market appeared to stem, at least in part, from efforts to manipulate price indices compiled by trade publications. 64 The FERC Staff Report concluded, *inter alia* , that Enron manipulated natural gas markets to the detriment of California electricity consumers. 65 64 FERC Staff Report at ES-1. 65 Thereafter, in June 2007, an Administrative Law Judge issued a decision revoking Enron’s market-based rate authorization as of January 1997 and ordering it to disgorge $1.6 billion of unjust profits. *See* the initial decision in the *Gaming and Partnership Proceedings* 119 FERC ¶ 63013 (2007), Docket No. EL03-180-000, available at ( *http://www.ferc.gov/industries/electric/indus-act/wec/enron/info-release.asp* ) (hereafter Initial Decision). The FERC Staff Report provides an extensive discussion of a number of manipulative trading strategies that energy traders used, including two of particular relevance to this Rulemaking proceeding. First, a number of market participants provided false reports of natural gas prices and trade volumes to industry publications, including in particular *Gas Daily* and *Inside FERC* , which the staff characterized as “the most influential and relied-upon compilers of natural gas price indices.” 66 The staff found that “the false reporting included fabricating trades, inflating the volume of trades, omitting trades, and adjusting the price of trades.” 67 The staff further found that: 66 *Id* . at ES-6. 67 *Id.* [t]he predominant motives for reporting false information were to influence reported gas prices, to enhance the value of financial positions or purchase obligations, and to increase reported volumes to attract participants by creating the impression of more liquid markets. Market participants that sold power in California, or that were affiliated with such sellers, also had incentives to manipulate reported prices because the clearing price set for power was based, in part, on natural gas spot prices. 68 68 *Id.* Second, the staff found that Enron used its subsidiary, EnronOnline (EOL), to carry out several different types of manipulation. The staff found that certain characteristics — including in particular the fact that Enron served as the counterparty to every trade on EOL — made the system ripe for abuse, and permitted Enron to use EOL to effect a number of different types of manipulation. In particular, the staff found that wash trades — in which two parties would prearrange a pair of sales of the same product with no net change in ownership — were common on EOL. The parties effected such “trades” in order artificially to influence the closing price on EOL, and/or to increase the apparent volume of trading in order deceptively to make the market for that product appear to be more liquid than was actually the case. The staff further found that EOL itself “often posted its willingness to buy and sell at the same price;” that Enron also manipulated prices on EOL “by having affiliates on both sides of certain wash-like trades;” and that these practices both created a false sense of liquidity and raised or otherwise distorted prices. 69 The staff also found that EOL gave Enron a huge information advantage — derived from its central position in the physical markets — which enabled it to earn more than $500 million in 2000 and 2001 from its financial products, while sustaining trading losses at a much lower level in the “thinner physical markets.” 70 69 *Id* . at ES-11-12. 70 *Id* . at ES-12. Four important characteristics of the markets for the physical products — that is, for electricity and natural gas — facilitated execution of the foregoing strategies. First, electricity cannot economically be stored more than a few seconds. As a result, electricity generation and transmission are necessarily “just-in-time” activities. Because storing electricity is prohibitively expensive, electricity suppliers must essentially anticipate demand on a minute-by-minute basis, and errant forecasts can cause the system to become unstable and lead to blackouts. Moreover, the absence of storage capability may make physical withholding more attractive to a supplier — because closing a plant or generation unit will then result in the immediate withdrawal of output from the market — and unless such a reduction is offset by a competing supplier, this output reduction might be sufficient to produce an increase in price levels. Second, electricity suppliers may be able to increase profits by withholding capacity during peak demand periods because other rival facilities are already committed to production and cannot respond. Third, the regulation of wholesale electricity markets generates an enormous amount of publicly available information. In particular, the cost structure of electricity generators is publicly available, and this information may potentially support the exercise of market power. And fourth, electric utilities — including in particular those in the California market — have relied upon purchasing electricity on spot markets, rather than through the negotiation of long-term contracts, and that type of reliance may facilitate the exercise of market power by placing electricity suppliers in a repetitive situation that supports signaling. The Commission encourages commenters to consider the foregoing discussion, and to address in particular whether any of the types of manipulative strategies used in the electricity and natural gas markets might be used in the markets for crude oil, gasoline, and petroleum distillates. C. Questions For Commenters Relating to Case Studies • Prior to 1995, Congress had imposed a ban on exports of Alaska North Slope crude oil. In 1995, Congress repealed that ban, but also granted the President the power to reimpose the export ban in certain circumstances. The Commission seeks comment on the effects of the export ban and of its repeal; on the residual authority of the President to reimpose the ban; and on any implications these circumstances may have for a Section 811 rule. • Consider the following scenario: a supplier provides a particular type or formulation of product that cannot be obtained from other suppliers (not due to monopolization by the supplier). This particular product is needed in certain areas, and is not easily substituted for by other suppliers’ products. The Commission seeks comment on whether the following practice would constitute a manipulative device or contrivance: if the supplier sold some of its product to certain areas but not to other areas, at a loss or for a profit that is not as great as it would likely have made in the area where it did not sell. In answering this question, commenters are encouraged to address whether their answers depend on the supplier’s knowledge or motivation(s), such as that the supplier
(1)might have had contractual arrangements elsewhere;
(2)might have anticipated developing more business elsewhere;
(3)might have anticipated that prices in the particular areas might go up, making the rest of its supply sold in those areas more profitable; or
(4)might have taken the foregoing steps for the express purpose of causing the prices in those areas to go up. Commenters are also encouraged to address whether their answers depend on how difficult it is to substitute for or do without the product, and, if so, what constitutes an unreasonable degree of difficulty. • As noted above, market manipulation by certain firms (Enron and others) is often cited as a significant cause of the substantial disruptions in Western electricity and natural gas markets in 2000 and 2001. The Commission seeks comment on the extent to which such activities, including but not limited to the activities described above, may provide guidance as to what may constitute the use of a manipulative or deceptive device or contrivance, in connection with the purchase or sale of crude oil, gasoline, or petroleum distillates at wholesale. • In light of the electricity market characteristics identified by the FERC Staff Report, and the physical peculiarities of electricity storage and distribution, the Commission seeks comment on how relevant this experience may be to wholesale petroleum markets, and on whether (and if so to what extent) this experience can inform the Commission’s approach to distinguishing manipulative or deceptive devices or contrivances from legitimate business practices. VI. Regulatory Flexibility Act • Does Subtitle B of the EISA impose any disparate impact on small businesses? If so, how may this disparate impact be minimized? • Describe and, where feasible, estimate the number of small entities to which Subtitle B applies. VII. Conclusion The Commission will proceed from this ANPR to a Notice of Proposed Rulemaking. The evaluation of comments submitted in response to this ANPR will comprise part of the Commission’s rulemaking process. By direction of the Commission. Donald S. Clark, Secretary. [FR Doc. E8-10102 Filed 5-6-08: 8:45 am] BILLING CODE 6750-01-S COAST GUARD 33 CFR Part 165 [Docket No. USCG-2008-0314] RIN 1625-AA00 Safety Zone; Red Bull Air Race, Detroit River, Detroit, MI AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes establishing a temporary safety zone on the Detroit River, Detroit, Michigan. This Zone is intended to restrict vessels from portions of the Detroit River during the Red Bull Air Race. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with air races. DATES: Comments and related material must reach the Coast Guard on or before May 22, 2008. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2008-0314 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:
(1)Online: *http://www.regulation.gov.*
(2)Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
(3)Hand delivery: Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(4)Fax: 202-493-2251. FOR FURTHER INFORMATION CONTACT: LT Jeff Ahlgren, Waterways Management, U.S. Coast Guard Sector Detroit, 110 Mount Elliot Ave., Detroit, MI 48207,
(313)568-9580. SUPPLEMENTARY INFORMATION: I. Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. We have an agreement with the Department of Transportation
(DOT)to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below. A. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0314), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name, mailing address, and an e-mail address or other contact information in the body of your document to ensure that you can be identified as the submitter. This also allows us to contact you in the event further information is needed or if there are questions. For example, if we cannot read your submission due to technical difficulties and you cannot be contacted; your submission may not be considered. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. B. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to *http://www.regulations.gov* at any time, click on “Search for Dockets,” and enter the docket number for this rulemaking (USCG-2008-0218) in the Docket ID box, and click enter. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. C. Privacy Act Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477), or you may visit *http://DocketsInfo.dot.gov.* Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to U.S. Coast Guard Sector Detroit at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose This temporary safety zone is necessary to ensure the safety of vessels and the public from hazards associated with an air race. The Captain of the Port Detroit has determined air races in close proximity to watercraft and infrastructure pose significant risk to public safety and property. The likely combination of large numbers of recreation vessels, airplanes traveling at high speeds and performing aerial acrobatics, and large numbers of spectators in close proximity on the water could easily result in serious injuries or fatalities. Establishing a safety zone around the location of the race course will help ensure the safety of persons and property at these events and help minimize the associated risks. Discussion of Proposed Rule This proposed rule is intended to ensure safety of the public and vessels during the setup, course familiarization, time trials and race in conjunction with the Red Bull Air Race. The air race and associated set-up and removal will occur between 9 a.m., May 29, 2008 and 6 p.m., June 1, 2008. The safety zone will be enforced from 9 a.m. to 5 p.m. on May 29, 2008 through May 31, 2008, and from 9 a.m. to 6 p.m. on June 1, 2008. The safety zone will encompass all navigable waters of the United States on the Detroit River, Detroit, MI, bound by a line extending from a point on land southwest of Joe Louis Arena at position 42°19.4′ N; 083°3.3′ W, northeast along the Detroit shoreline to a point on land at position 42°20.0′ N; 083°1.2′ W, southeast to the international border with Canada at position 42°19.8′ N; 083°1.0′ W, southwest along the international border to position 42°19.2′ N; 083°3.3′ W, and northwest to the point of origin at position 42°19.4′ N; 083°3.3′ W. (DATUM: NAD 83). The Captain of the Port will cause notice of enforcement of the safety zone established by this section to be made by all appropriate means to the affected segments of the public. Such means of notification will include, but is not limited to, Broadcast Notice to Mariners and Local Notice to Mariners. Likewise, the Windsor Port Authority intends to restrict vessel movement on the Canadian side of the Detroit River. The exclusionary area on the Canadian side will be aligned with the east and west borders of the U.S. safety zone and will extend to the shoreline along Windsor, ON. The Captain of the Port will issue a broadcast Notice to Mariners notifying the public when enforcement of the safety zone is terminated. Regulatory Evaluation This proposed 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 proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. This determination is based on the minimal time that vessels will be restricted from the zone and the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zones' activation. 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the above portion of the Detroit River between 9 a.m. and 6 p.m. on May 29, 2008 through June 1, 2008. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for approximately six hours each day of the race. Additionally, small entities such as passenger vessels, have been involved in the planning stages for this event and have had ample time to make alternate arrangements with regards to mooring positions and business operations during the hours this safety zone will be in place. Furthermore, local sailing and yacht clubs will be notified prior to the event by Coast Guard Station Belle Isle with information on what to expect during the event with the intention of minimizing interruptions in their normal business practices. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Detroit to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect. Additionally, the COTP will suspend enforcement of the safety zone if the event for which the zone is established ends earlier than the expected time. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Jeff Ahlgren, Waterways Management, U.S. Coast Guard Sector Detroit, 110 Mount Elliot Ave., Detroit MI, 48207; (313)568-9580. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call 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 proposed 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 proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would 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 proposed 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 proposed 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 The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these regulations and fishing rights protection need not be incompatible. We have also determined that this Proposed 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. Nevertheless, Indian Tribes that have questions concerning the provisions of this Proposed Rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT . Energy Effects We have analyzed this proposed 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination 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, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This event establishes a safety zone, therefore paragraph (34)(g) of the Instruction applies. A preliminary “Environmental Analysis Check List” and “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES . Comments on this section will be considered before we make the final decision on whether this proposed rule should be categorically excluded from further environmental review. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. List of Subjects in 33 CFR Part 165 Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Section *165.T09-0314 is added to read as follows:* § 165.T09-0314 Safety Zone; Red Bull Air Race, Detroit River, Detroit, MI.
(a)*Location.* The following area is a temporary safety zone: all U.S. waters of the Detroit River, Detroit, MI, bound by a line extending from a point on land southwest of Joe Louis Arena at position 42°19.4′ N; 083°3.3′ W, northeast along the Detroit shoreline to a point on land at position 42°20.0′ N; 083°1.2′ W, southeast to the international boarder with Canada at position 42°19.8′ N; 083°1.0′ W, southwest along the international border to position 42°19.2′ N; 083°3.3′ W, and northwest to the point of origin at position 42°19.4′ N; 083°3.3′ W. (DATUM: NAD 83).
(b)*Effective Period.* This regulation is effective from 9 a.m. on May 29, 2008 through 6 p.m. on June 1, 2008. The safety zone will be enforced daily from 9 a.m. to 5 p.m. on May 29, 2008 through May 31, 2008, and from 9 a.m. to 6 p.m. on June 1, 2008.
(c)*Regulations.*
(1)In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Detroit, or his designated on-scene representative.
(2)This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit or his designated on-scene representative.
(3)The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.
(4)Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Detroit or his on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port or his on-scene representative. Dated: April 23, 2008. P.W. Brennan, Captain, U.S. Coast Guard, Captain of the Port Detroit. [FR Doc. E8-10238 Filed 5-6-08; 8:45 am] BILLING CODE 4910-15-P LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 [Docket No. RM 2007-11] Definition of Cable System AGENCY: Copyright Office, Library of Congress. ACTION: Termination of rulemaking proceeding. SUMMARY: The Copyright Office previously sought comment on issues associated with the definition of the term “cable system” under the Copyright Act as well as on the National Cable and Telecommunications Association’s request for the creation of subscriber groups for the purposes of eliminating the “phantom signal” phenomenon. After reviewing the record in this proceeding, the Copyright Office finds that it lacks the statutory authority to adopt rules sought by the cable industry. The Copyright Office, however, clarifies regulatory policy regarding the application of the 3.75%% fee to phantom signals. This proceeding is terminated. FOR FURTHER INFORMATION CONTACT: Ben Golant, Assistant General Counsel, and Tanya M. Sandros, General Counsel, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. Telephone:
(202)707-8380. Telefax:
(202)707-8366. SUPPLEMENTARY INFORMATION: Section 111 of the Copyright Act (“Act”), title 17 of the United States Code (“Section 111”), provides cable systems with a statutory license to retransmit a performance or display of a work embodied in a primary transmission made by a television or radio station licensed by the Federal Communications Commission (“FCC”). Cable systems that retransmit broadcast signals in accordance with the provisions governing the statutory license set forth in Section 111 are required to pay royalty fees to the Copyright Office. Payments made under the cable statutory license are remitted semi-annually to the Copyright Office which invests the royalties in United States Treasury securities pending distribution of these funds to those copyright owners who are entitled to receive a share of the fees. I. Introduction In 2007, the Copyright Office published a Notice of Inquiry (“NOI”) seeking comment on issues associated with the definition of the term “cable system” under the Copyright Act and the Copyright Office’s implementing rules. The Copyright Office also sought comment on the National Cable and Telecommunications Association’s (“NCTA”) request for the creation of subscriber groups for the purposes of eliminating the “phantom signal” phenomenon. 72 FR 70529 (Dec. 12, 2007). The purpose of the NOI was to solicit input on, and address possible solutions to, the complex issues presented when only a subset of a cable system’s subscriber base receive a particular distant signal. II. Background Section 111(f) of the Copyright Act defines a “cable system” as: “a facility, located in any State, Territory, Trust Territory, or Possession, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection (d)(1)[of Section 111], two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered one system.” 17 U.S.C. 111(f). In implementing the cable statutory license provisions of the Copyright Act, the Copyright Office adopted a definition of the term “cable system” that replicated the statutory provision. The Copyright Office, however, separated the text of the provision into two parts in order to clarify that a cable system can be defined in either of two ways for the purpose of calculating royalty fees. Thus, the regulatory definition provides that “two or more facilities are considered as one individual cable system if the facilities are either:
(1)in contiguous communities under common ownership or control or
(2)operating from one headend.” 37 CFR 201.17(b)(2). The Copyright Office stated that its interpretation of the statutory “cable system” definition was consistent with Congress’s goal of avoiding the “artificial fragmentation” of systems (a large system purposefully broken up into smaller systems) and the consequent reduction in royalty payments to copyright owners. *See Compulsory License for Cable Systems* , 43 FR 958 (Jan. 5, 1978). The Copyright Office has, in the past, recognized certain practical problems associated with the definition when cable systems merge. For example, in 1997, the Copyright Office stated that “[s]o long as there is a subsidy in the rates for the smaller cable systems, there will be an incentive for cable systems to structure themselves to qualify as a small system.” *See A Review of the Copyright Licensing Regimes Covering Retransmission of Broadcast Signals* (“1997 Report”) (Aug. 1, 1997) at 45. The Copyright Office further stated that although Section 111(f) has worked well to avoid artificial fragmentation, “it has had the result of raising the royalty rates some cable systems pay when they merge. This happens because, if the two systems have different distant signal offerings, then all the signals are being paid for based on the total number of subscribers of the two systems, even if some of those signals are not reaching all the subscribers.” *Id.* at 46. The Copyright Office, echoing the NCTA’s nomenclature, called this phenomenon the “phantom signal” problem. *Id.* In the 1997 Report, the Copyright Office recommended to Congress, as part of a broader effort to reform Section 111, that cable statutory royalties be based on “subscriber groups” that actually receive the signal. The Copyright Office also recommended that systems under common ownership and control be considered as one system only when they are either in contiguous communities or use the same headend ( *i.e.* , two unrelated operators sharing a single headend would not be treated as one system). *Id.* at 47. Believing that it lacked the authority to alter the definition of cable system as established in Section 111, the Copyright Office suggested that Congress amend the Copyright Act in accordance with its recommendations. Id at 46. NCTA has proposed a three part remedy to rectify the phantom signal problem as it sees it. First, it urged the Copyright Office to change its cable system regulatory definition. Second, it requested that the Copyright Office adopt a new rule permitting cable operators that operate a cable system serving multiple communities with varying complements of distant broadcast signals to use a community-by-community approach when determining the royalties due from that system, seemingly without regard to whether a phantom signal problem exists. NCTA, in short, advocated the creation of “subscriber groups” for cable royalty purposes where the operator pays royalties only where distant signals are actually received by a particular household. Finally, NCTA urged the Copyright Office to announce that it would not challenge Statements of Account on which the cable operator has used a community-by-community approach for determining Section 111 royalties. Specifically, NCTA proposed that Section 201.17(b)(2) of the Copyright Office’s rules be amended so that the last sentence reads as follows: “For these purposes, two or more cable facilities are considered as one individual cable system if the facilities are in contiguous communities, under common ownership or control, and operating from one headend.” Stated another way, under NCTA’s proposed rule change, cable facilities serving multiple communities would be treated as a single system for statutory license purposes only when three distinct conditions are satisfied:
(1)the facilities are in contiguous communities;
(2)the facilities are under common ownership or control; and
(3)the facilities are operating from the same headend. The significant change NCTA suggests is that the word “or” be replaced by the word “and” before the clause “operating from one headend.” NCTA asserted that this regulatory change would help resolve the phantom signal issue because it would base royalty payments on signals that are carried throughout the cable system and made available to all subscribers. According to NCTA, a cable operator would still be deterred from “artificially fragmenting” its facility under this approach because any operator who attempts to do so would lose the operational efficiencies concomitant with a single headend. NCTA also stated that while its proposed definition is narrower than the existing definition, it would ensure that facilities, which were truly technically and managerially distinct from one another, would not be artificially joined together for purposes of the statutory license. In the NOI, we noted that NCTA’s proposed rule change raises significant statutory interpretation issues and sought comment on this possibility. 73 FR at 70532. In addition to arguing for a change in the Copyright Office’s cable system definition, NCTA also advocated the adoption of a new paragraph
(g)in Section 201.17 of the Copyright Office’s rules. NCTA’s proposed rule amendment would create subscriber groups, based on cable communities and partial carriage, for the purpose of calculating royalties in a manner that would eliminate phantom signals. Specifically, the NCTA proposed that:
(1)“A cable system serving multiple communities shall use the system’s total gross receipts from the basic service of providing secondary transmissions of primary broadcast transmitters to determine which of the Statement of Account forms identified in paragraph (d)(2) is applicable to the system;” and
(2)“Where the complement of distant stations actually available for viewing by subscribers to a cable system is not identical in all of the communities served, the royalties due for the system may be computed on a community-by-community basis by multiplying the total distant signal equivalents derived from signals actually available for viewing by subscribers in a community by the gross receipts from secondary transmissions from subscribers in that community.” NCTA adds that the total copyright royalty fee for a system to which this rule would apply must be equal to the larger of
(1)the sum of the royalties computed for the system on a community-by-community basis or
(2)1.013 percent of the systems’ gross receipts from all subscribers (which is the current minimum royalty fee payment for SA-3 systems beginning with the July 1-December 31, 2005, accounting period). We sought comment on the overall structure and formulation of NCTA’s “combined revenues/community-specific royalty determination” proposal. We also sought comment on several examples comparing royalties calculated under the current regulatory structure and how they might be calculated if we were to adopt NCTA’s proposed rule changes. 72 FR at 70533, 70537-40. In the NOI, we questioned whether NCTA’s proposals were limited only to those situations where two or more systems have recently merged. It appeared that NCTA’s expansive proposals likely covered any situation where a cable operator provides a different set of distant signals to different subscriber groups served by the same cable system. We noted that its regulatory proposal was much different from the matter the Copyright Office raised and addressed in its 1989 and 1997 rulemaking proceedings on cable system mergers and acquisitions. We therefore sought comment on whether our interpretation of NCTA’s proposals were correct. 72 FR at 70531. III. Comments *Section 111 Royalty Structure and Phantom Signals.* NCTA admits that the “phantom signal” problem is not confined to circumstances such as where System A and System B, each carrying a unique set of distant signals, merge and are not yet technically integrated. It notes that, in this situation, the Copyright Office suggests that the phantom signal issue is temporary, until the systems can become technically integrated. It states, however, the phantom signal problem can arise in other contexts. It notes that in some cases it may not be possible to technically integrate multiple systems with identical line-ups system-wide. In other cases, it comments that phantom signals can arise when cable operators pursue a regional strategy of clustering systems, or where commonly-owned System A and System B become contiguous with each other through system expansion. NCTA asserts that where there are legitimate reasons for maintaining separate headends, the rules unfairly require the operator to artificially “merge” these systems and inflate royalty payments. In addition to technical reasons, NCTA remarks that channel lineups may be different because customers of two different systems may have different settled viewing expectations based on historical distant signal carriage. It states that this circumstance cannot be solved simply by adding a distant signal to a particular channel line-up because of the scarcity of available channels on a basic service tier. NCTA asserts that the Office’s phantom signal policy affords copyright owners a “bonanza based upon non-performance of their works.” NCTA also asserts that the current “phantom signal policy” presents operators with a series of choices, none of them good for consumers or competition. It states that, on the one hand, application of the phantom signal policy may result in an increase in royalty payments that the operator either must pass through to subscribers (who receive nothing of value in return) or must absorb itself (reducing the resources available to provide other services). NCTA states, on the other hand, that the operator may simply be deterred from carrying stations that might trigger phantom signal payments, depriving consumers of programming that they desire. It concludes that neither of these results is good for consumers or good for competition. The American Cable Association (“ACA”) asserts that the phantom signal problem requires cable operators to pay for a license for the non-use of copyrighted works and posits that no theory of intellectual property rights supports an obligation to pay for a license for works not used. ACA asserts that the current royalty scheme requires a cable operator to pay more royalties for distant signals that are not carried than for distant signals actually carried. It provides the following example: two cable systems in Missouri serving equal-sized subscriber groups. System A carries only WGN, system B carries both WGN and KVTJ. If the owner of system B purchases system A, connects the systems with fiber optics, and eliminates system A’s headend, the nonexistent KVTJ signal broadcast to subscriber group A becomes a “phantom signal” and accounts for 58%% of all royalties payable by the combined cable system. It argues that this is irrational and unfair. At the outset, Copyright Owners 1 comment that the “phantom signal” problem is one of the industry’s own creation; that is, a cable operator purposefully chooses to make certain distant signals available to only some of its customers. They comment that NCTA’s proposals are not limited to situations where mergers result in the combined system offering phantom signals, but also cover any situation where a cable operator provides a different set of distant signals to different subscriber groups. Copyright Owners then assert that the formula for calculating Section 111 royalties represents a statutory compromise where the cable operator pays “miniscule royalty rates” that are derived from a broad revenue base. Copyright Owners believe that the rates in the statutory formula are inequitable, and favor the cable operator, even when applied to the broad revenue base. They state that if the Copyright Office adopts NCTA’s suggestions, then merging Form 3 systems would pay even less royalties after a merger. They remark that Congress adopted a “convenient revenue base,” not one that was congruent to programming actually received by subscribers. They request that the Copyright Office act expeditiously to reject NCTA’s proposal and end the controversy so that all participants in the Section 111 royalty scheme have a degree of certainty to move forward. 1 Copyright Owners are comprised of the Joint Sports Claimants, the Music Claimants, Program Suppliers, National Association of Broadcasters, Devotional Claimants, Public Television Claimants, and National Public Radio. Copyright Owners state that aside from the statutory minimum fee, the Office’s interpretation of Section 111 does not require cable operators to pay for any distant signals they do not “use” or works they do not “perform.” They assert that cable systems pay for only those distant signals that they actually carry and therefore “use;” once they carry a station in any portion of their system, they engage in a public performance of each work broadcast by the station, regardless of the total number of subscribers who actually receive that work. 17 U.S.C. 101 (definition of “to perform publicly”). They add that if a cable system does not carry a distant signal in any portion of its system (and thus does not perform any work included in that signal), the system does not ascribe any DSE value to that signal in its Section 111 royalty calculation. They assert that nothing in the Office’s existing rules governing phantom signals requires payment for “non-use” or affords copyright owners a “bonanza for non-performance,” as NCTA and ACA contend. Copyright Owners take issue with NCTA’s complaint that the law “makes no sense” because it requires payment of royalties for works that “are not being seen by the operator’s customers.” They comment that “It is more than strange” that the principal representative of the cable television industry would complain about requiring payments for programming “not being seen” by cable subscribers. Copyright Owners remark that the cable business model is premised on requiring each subscriber to pay for packages of programming, the majority of which programming is never “seen” by that subscriber. In defense of that business model, they note that NCTA itself has been a vocal opponent of any “a la carte” requirement that would allow consumers to pay for only programming they want to see. *See A La Carte - Fewer Choices, Less. Diversity, Higher Prices* , http://www.ncta.com/IssueBrief. aspx?contentId=15 (last visited March 25, 2008). Copyright Owners note that, in any event, there is nothing in Section 111 that restricts royalty payment to copyrighted works actually “seen” by cable subscribers. They conclude by stating that “the fact that NCTA’s proposals are based upon the notion that only programming actually seen should be compensated under Section 111 provides further confirmation of the impropriety of those proposals.” Program Suppliers comment that NCTA does not provide any real-life examples of where the phantom signal problem has had any adverse effect. They state that NCTA’s proposal would rewrite the royalty payment system for all cable systems, not just those with a supposed phantom signal problem. They also reply that ACA’s effort to eliminate the phantom signal problem is based on a pre-determined hypothetical with no real-world counterpart. NCTA, in reply, states that the Copyright Owners that have attempted to defend phantom signal payments do not, and cannot, demonstrate that there is anything rational about requiring a cable operator to pay more for the retransmission of a distant signal simply because the operator happens to serve subscribers in a neighboring community where it does not retransmit that signal. It states that, instead, they try to justify phantom signal payments based on the false notion that an obligation to compensate copyright owners for the fictional use of their works is somehow embedded in the structure of the Act and the Office is powerless to change it. *Section 111(f) and the Cable System Definition.* Copyright Owners state that NCTA has asked the Office to substitute the word “and” for the word “or” above, so that cable systems would be considered a single system only if they were in contiguous communities under common ownership and control, and operated from one headend. They argue that this proposal is inconsistent with the canons of statutory interpretation as well as the legislative purpose behind Section 111. Copyright Owners note that NCTA claims, as justification for the rule change, that the existing cable system definition inhibits the practice of clustering. They point out, however, that the number and size of clusters have risen, and no cable system would make a decision to cluster solely based on its Section 111 royalty obligations. In any event, they remark that Congress intended that two merging systems should pay more in royalties than if they remained as two smaller systems. They state that this position is consistent with Section 111, which establishes a royalty schedule based on a cable operator’s ability to pay. Program Suppliers also note that system clustering has not been inhibited by Section 111’s definitions or its royalty structure. They note that the number of cable subscribers served by clusters has more than doubled from 1994 to 2003 and the proportion of subscribers in clusters has risen from 34%% to 81%% of all basic cable subscribers. They further note, at the same time, total annual cable royalty fees paid fell from $161 million to $132 million. NCTA recognizes that Congress’s purpose in enacting the cable system definition was to prevent artificial fragmentation in order to reduce royalty fees owed. It asserts that while the Office cannot change the “cable system” definition, it can protect against artificial fragmentation without requiring irrational fee calculations. NCTA comments that its proposal would still require operators to continue to combine revenues from separate-but commonly-owned and contiguous-cable systems to determine their filing status as a Form 1, 2 or 3 system. *Statutory Authority.* Program Suppliers assert that the Copyright Office does not have the authority to interpret the statutory term “or” in the Section 111(f) definition of cable system to mean “and.” They comment that the Office must follow the explicit language of the statute in formulating its regulations. Copyright Owners add that Section 111 specifies only one situation where a cable system may “prorate” its “gross receipts;” that is, where the system carries a “partially distant” signal. They state that NCTA is asking the Office to permit proration of “gross receipts” and the creation of subscriber groups in many additional circumstances. They argue that Congress did not give the Copyright Office the authority to expand the language of the Act in the manner proposed by the NCTA. In any event, Copyright Owners submit that the Copyright Office has already articulated that it has no authority to adopt NCTA proposals, yet, NCTA keeps claiming this issue is unresolved. NCTA replies that the Copyright Owners’ comments ignore that the Office has adopted a similar method of calculating royalties, permitting community-specific calculations in cases of partially permitted, partiallynon-permitted distant signal carriage. NCTA asserts that the Act does not expressly require this exception either, but no one is suggesting that the Office exceeded its authority by adopting a rational solution to that administrative problem. Rather, the Office has an obligation to make “common sense” responses to problems that arise during implementation, so long as those responses are not inconsistent with congressional intent. *Subscriber Group Proposal.* NCTA argues that its subscriber group proposal does not require a statutory amendment to Section 111. It notes that Program Suppliers, at one time, supported a very similar method for calculating royalties. It comments that even though Section 111 is silent on whether subscriber groups can be created, it certainly does not expressly mandate phantom signal treatment. It notes, for example, that the Copyright Office’s rules already authorize operators to create subscriber groups to calculate royalties for “partially-permitted, partially non-permitted” distant signals. It concludes that the Copyright Office is able to remedy the phantom signal problem even if the definition of “cable system” is not changed. NCTA states that calculating royalties based on actual carriage is entirely consistent with the Act’s structure. It argues that the requirement that operators pay a minimum fee, regardless of whether any distant signals are carried at all, is the one narrow exception to the general principle of paying only for what is carried. NCTA notes that the legislative history explains the minimum payment for the privilege of retransmitting distant signals served a particular purpose: “the purpose of this initial rate, applicable to all cable systems in this class, is to establish a basic payment, whether or not a particular cable system elects to transmit distant non-network programming.” Beyond this basic payment required of all operators retransmitting broadcast signals, NCTA asserts that the Act and its legislative history show no intent to inflate the amount of other payments through some artificial levy for non-use. According to Copyright Owners, NCTA states that the Office’s current regulations prohibiting the creation of subscriber groups are inconsistent with the “fundamental principle” that a cable system should be required to pay royalties only for “actual signal carriage” and thus “use” of copyrighted works. Copyright Owners argue that the Act’s legislative history does not support this assertion. Copyright Owners also suggest that NCTA’s proposal introduces methodological wrangles and monitoring expenses. They assert that current statement of account forms do not provide all the necessary information needed to ensure compliance. 2 They conclude that adopting NCTA’s proposal would not only increase uncertainty and disputes, but upset the entire regulatory scheme set up by the Copyright Office. 2 Copyright Owners argue that the Copyright Office needs to create an audit right so that royalty claimants may investigate SOAs and also request that the Office post on its website a list of cable Statements of Account that do not calculate royalties in accordance with Office regulations. In Reply, Program Suppliers assert that NCTA’s proposed rewrite of Section 201.17(b)(2) appears as nothing more than a new effort to legitimize artificial fragmentation designed to reduce royalty fees. They further assert that NCTA’s proposal would allow cable operators to choose what is a “separate” system on the basis of whatever makes sense from a business standpoint. Program Suppliers conclude that NCTA’s plan would bestow on operators both the motive and the means to fragment their systems so as to reduce the applicable royalty fees, exactly the situation that the current Section 111(f) definition was intended to prevent. They state that such a result would unfairly penalize copyright owners, allowing cable operators to contort the statutory license scheme to reduce for their benefit the already limited compensation copyright owners receive. Program Suppliers comment that NCTA’s contention that no statutory amendment is required to adopt a “not carried” subscriber group category is belied by its own discussion of the existing subscriber groups allowed by the current regulations: one each for a non-permitted distant signal, a permitted distant signal, or a local signal. Program Suppliers state that each of those regulations is anchored on an explicit statutory provision: the permitted, non-permitted subscriber groups rely on Section 801(b)(2)(B) that applies the 3.75%% rate only to nonpermitted signals, while Section 111(d)(1)(B) allows subscriber groups for partially distant and partially local signals. They argue that there is no comparable statutory provision for NCTA’s proposed fourth designation “not carried’” signals that explicitly allows the use of “not carried” subscriber groups. Program Suppliers conclude that because Section 111 does not exempt “not carried” distant signals from royalty fee payments, no valid basis exists on which to promulgate such a subscriber group methodology for calculating royalties. In Reply, NCTA notes that its proposal would simply require contiguous communities to combine revenues, and calculate royalties based on distant signals actually retransmitted in that community. It asserts that Program Suppliers and Copyright Owners have not provided a sufficient policy reason why its subscriber group proposal should not be adopted. ACA argues that if the Copyright Office concludes that it lacks the statutory authority to adopt NCTA’s proposal, then it should recommend that Congress amend Section 111 to clarify that a cable operator is only obligated to pay royalties on revenues derived from the actual retransmission of a signal to subscribers. *NOI examples.* In the NOI, we sought comment on several royalty scenarios, based on actual Statement of Account filings, to illustrate NCTA’s proposals in action. 72 FR at 70537-40. To provide context, we reiterate that there are two types of cable system SOAs currently in use. The SA1-2 Short Form is used for cable systems whose semi-annual gross receipts are less than $527,600.00. There are three levels of royalty fees for cable operators using the SA1-2 Short Form:
(1)a system with gross receipts of $137,000 or less pays a flat fee of $52.00 for the retransmission of all broadcast station signals;
(2)a system with gross receipts greater than $137,000.00 and equal to or less than $263,800.00, pays between $52.00 to $1,319.00; and
(3)a system grossing more than $263,800.00, but less than $527,600.00 pays between $1,319.00 to $3,957.00. Cable systems falling under the latter two categories pay royalties based upon a fixed percentage of gross receipts. The SA-3 Long Form is used by larger cable systems grossing $527,600.00 or more semi-annually. We used the terms “Form 1,” “Form 2,” and “Form 3” to describe the SOA-type systems that were being merged in the scenarios. We used the terms “System 1” and “System 2” as the generic names of the systems in each of the examples; these terms do not reflect the type of SOA that such a system would file with the Copyright Office.” With regard to the royalty scenarios, NCTA comments that the Office “strangely” focuses on the size of the royalty pool and ignores everything else. It notes that the examples in Set 1 show a 900%% increase in royalties paid by System 2 users under the current approach, but only a 70%% increase under its proposal. In Set 2, it notes that while its proposal does not result in an increase, there should still be no concern with artificial fragmentation because two Form 3 systems are being merged. In Set 3, it notes that total royalty payments would be the same post-merger as they are pre-merger under its proposal where the line-ups are the same, but under the current approach rates would go up 55%% - from $41,401 to $64,447. With regard to the latter result, NCTA comments that “Only an Alice in Wonderland `through the looking glass’ perspective could lead one to conclude that its proposal results in a “reduction” in an operator’s royalty payments.” NCTA comments that its proposal merely prevents the large, and unjustified, increases in royalty payments that can be produced by the irrational phantom signal policy. NCTA comments that other hypothetical examples are unlikely to occur in the real world and do not justify inaction on its petition. It notes, for example, the comment on application of the syndicated exclusivity surcharge to subscriber groups. It states that only seven systems paid syndex surcharge royalties last accounting period, and the amount paid ($25,000) is *de minimis* when compared to the total semi-annual royalty payments of more than $70 million. Similarly, it notes that the Office suggests that there could be scenarios where a Form 1 system merging with a Form 3 system might pay less than the $52 minimum fee if it carries no distant signals and has gross revenues less than $5,133. It argues that concerns about these relatively farfetched scenarios, though, do not justify inaction here. NCTA admits that anomalous situations might occasionally arise if subscriber groups are used for calculating royalties, but remarks that the Office could tweak NCTA’s proposed regulations to address these issues. It emphasizes that these unusual situations do not provide a legitimate reason to avoid remedying this situation altogether. Program Suppliers state that the disconnect between NCTA’s claim that actual carriage should control the royalty plan and should be the basis for calculation of royalty payments is demonstrated by the hypothetical in Set 1, Scenario 1, which NCTA mistakenly asserts shows a phantom signal problem. According to Program Suppliers, NCTA uses this hypothetical, involving merger of a Form 2 with no distant carriage and a Form 3 system with distant carriage, for the proposition that “the mere fact that these two systems are combined for filing purposes results in a 900 percent increase in copyright costs for subscribers to System 2 [the Form 2 system].” Program Suppliers note that they have previously demonstrated in their Section 109 comments that royalty payment obligations of cable operators do not correlate to subscriber fees. *See* Program Suppliers’ Section 109 Comments, Docket No. 2007-1, at 8-10. Second, They state that NCTA assumes the 900%% increase is due solely to phantom signals, but the same increase would apply post-merger if System 2 carried exactly the same complement of distant signals as System 1 pre- and post-merger. They assert that no phantom signal claim could be made based on that hypothetical. To the contrary, they argue that the 900%% increase would occur due to the extremely low Form 2 flat fee, $1,931, postulated for pre-merger System 2. They state that the flat fee does not change even if pre-merger System 2 carried the same signals as did System 1. They conclude that the royalty payment increases contained in the Set 1 Scenarios follow exactly the statutory plan intended by Congress, viz., royalties for Form 3 systems are substantially higher than the *de minimis* payments made by smaller systems. Copyright Owners add that the Copyright Office did not misapply NCTA’s subscriber group proposals; rather, the Office has applied it in the way some of NCTA’s members have done. They note that, according to NCTA, cable operators using the subscriber group proposal must calculate a minimum fee for each subscriber group with less than one DSE -- and then add those minimum fees to the royalties calculated for each subscriber group with one or more DSEs. *See* NCTA Comments at 12 n.31 (stating that Copyright Office “miscalculates” the royalty owed by one of its hypothetical cable systems because it “mistakenly failed to compute the minimum fee due from subscribers in Group 1”). Copyright Owners assert that cable operators have not been following NCTA’s own approach; rather, they have been routinely ascribing a zero royalty -- rather than the minimum fee -- to any subscriber group with no DSEs. Copyright Owners add that NCTA has been using fractional DSE values (rather than a minimum fee) to calculate the royalty for any subscriber group with less than one, but more than zero, DSEs. Copyright Owners conclude that “there are multiple methods for implementing a subscriber group policy for phantom signals. The one trait they all share in common is that none is consistent with Section 111.” IV. Discussion We published the NOI to gather comments on the long-debated issue of phantom signals. The responses to the NOI have substantially aided our effort to understand the issues surrounding the cable industry’s proposals. Based on the record evidence, we find that NCTA has not adequately demonstrated that its proposed changes are permissible under Section 111. We cannot read the statute or its legislative history to permit the creation of subscriber groups as suggested. NCTA argues about public policy and the inherent unfairness of the current system, but it ignores the underlying legal construct that binds the Office. We believe Section 111 is clear. As long as a cable operator subjects itself to the statutory license, and publicly performs the non-network programming carried by a distant signal, it must pay royalties for such use no matter if some subscribers are unable to receive it. Further, as we have stated in the past, we do not believe we have the statutory authority to change the royalty fee structure in the manner suggested by the cable industry. While the NCTA argues that the Office has the authority to adopt its proposed rule change, it ignores our limited role under Section 111, which allows the Office to administer a statutory rate structure, but gives us no discretion to alter that scheme. The cable industry has long been aware of our perspective on this issue and our policy of requesting additional payment when a cable operator does not submit the appropriate amount of royalties for a partially carried distant signal, yet it has maintained that it has been an unresolved issue. The cable industry can no longer cite to any inaction on our part for not paying royalties that are due for the use of the Section 111 license. In any event, we believe that NCTA has made cogent policy arguments concerning the inadequacies of the current statute. However, Congress is the proper forum to address its concerns. In 1997, the Copyright Office recommended to Congress, as part of a broader effort to reform Section 111, that cable statutory royalties should be paid on a flat per subscriber-per system basis just as satellite carriers are required to do under Section 119 of the Copyright Act. *See A Review of the Copyright Licensing Regimes Covering Retransmission of Broadcast Signals* (Aug. 1, 1997) at 60. This approach would eliminate the phantom signal problem. In lieu of this proposal, and assuming that operators would continue to pay royalties based on gross receipts, the Office recommended that the Section 111 royalty fee structure be based on “subscriber groups” that actually receive the signal. *Id.* at 59. The Copyright Office also recommended that systems under common ownership and control be considered as one system only when they are either in contiguous communities or use the same headend ( *i.e.* , two unrelated operators sharing a single headend would not be treated as one system). *Id.* at 47. On this point, we note that Section 109 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (“SHVERA”) requires the Office to examine and compare the statutory licensing systems for the cable and satellite television industries under Sections 111, 119, and 122 of the Copyright Act and recommend any necessary legislative changes no later that June 30, 2008. In the NOI in this proceeding, we stated that we understood our responsibilities under SHVERA to closely examine the continued relevancy of Section 111 and its many provisions. 3 We also noted that the matters raised by the parties on the phantom signals issue deserved consideration, sooner rather than later. 72 FR at 70536-37. Consequently, we proceeded with the current rulemaking and, with the publication of today’s notice, conclude that the proposed regulatory changes cannot solve the problem. Nevertheless, we continue to consider the issues raised in this proceeding in the context of the pending Section 109 Report and possible legislative solutions. 3 Several parties commented on phantom signals in response to the Section 109NOI. *See, e.g.* , ACA comments at 10-13, NCTA comments at 18-19, Joint Sports reply comments at 11, NAB comments at 11, and Program Suppliers comments at 6. We are nevertheless compelled to resolve one issue before terminating this docket. In the NOI, we noted that we have historically accepted the retransmission of phantom signals at the permitted rate (“base rate fee”). We stated, however, that some cable operators have raised concern that the Office might find, at some point in the future, that the retransmission of a phantom signal should be treated as if it were actually carried and thus subject to the 3.75%% fee as a non-permitted signal. In the absence of a clear policy statement on this matter, the Office has not stipulated payment of the 3.75%% fee and has left the decision as to which rate applies to the operator’s discretion. 72 FR at 70535. In response to questions raised about the 3.75%% fee in the NOI, NCTA stated that there is no rationale for applying the fee simply because two systems merge. It stated that the 3.75%% fee was only meant to apply to newly added signals carried for the first time, not for phantom signals. Neither Copyright Owners nor Program Suppliers commented on the relationship between the 3.75%% fee and phantom signals. We find it is necessary to resolve the application of the 3.75%% fee to phantom signals to provide closure on the matter. In the NOI, we noted that on one hand, the 3.75%% fee could be applied to non-permitted phantom signals because there is no specific statutory provision or Office regulation exempting such payment. We also commented that, on the other hand, the cable industry generally has, for nearly three decades, reported and paid royalties under the assumption that the 3.75%% fee would not be applied to non-permitted phantom signals. Further, our review of the Statements of Account indicate that most cable systems have paid either the Base Rate Fee or no fee for phantom signals while very few cable systems have paid the 3.75%% fee for these signals. In the NOI, we sought comment on the appropriate policy in this context. We believe that cable operators, under the law, do not have to pay the 3.75%% fee for the retransmission of distant broadcast signals that a subset of the subscriber population served by a cable system is unable to receive. Under Section 801 of the Copyright Act, the 3.75%% fee royalty adjustment was intended to address carriage by cable systems of additional television broadcast signals beyond the local service area of the primary transmitters of such signals. 17 U.S.C. 801(b)(2)(B). The United States Court of Appeals for the District of Columbia Circuit explained that the 3.75%% fee was to apply only to “newly added signals, *i.e.* , those carried for the first time after the change in the FCC’s distant signal rules.” *See National Cable Television Association, Inc. v. Copyright Royalty Tribunal* , 724 F.2d 176, 180 (D.C. Cir. 1983). Based upon the language of the statute and relevant legal precedent, it is reasonable to conclude that the 3.75%% fee is intended to only apply to “newly” carried distant broadcast signals and not to other situations such as those where signals are not available on a system-wide basis. As NCTA argues, “[i]mposing the 3.75%% rate on a signal not carried in a particular community would be completely unmoored from any justification for the penalty rate in the first place.” NCTA comments at 14. In any event, we note that if two cable systems merge, and the operator then carries a non-permitted distant signal above its market quota, under the analysis stated herein, this “newly added” signal would be subject to the 3.75%% fee. V. Conclusion Based on the preceding, we hereby terminate this proceeding. The Office will not consider the issues raised by NCTA in any further proceeding unless Congress so requires by statute. This constitutes a final action by the Copyright Office. Dated: May 2, 2008. Marybeth Peters, Register of Copyrights. [FR Doc. E8-10088 Filed 5-6-08; 8:45 am] BILLING CODE 1410-30-S DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-B-7778] Proposed Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Proposed rule. SUMMARY: Comments are requested on the proposed Base (1 percent annual-chance) Flood Elevations
(BFEs)and proposed BFE modifications for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the proposed regulatory flood elevations for the reach described by the downstream and upstream locations in the table below. The BFEs and modified BFEs are a part of the floodplain management measures that the community is required either to adopt or show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, these elevations, once finalized, will be used by insurance agents, and others to calculate appropriate flood insurance premium rates for new buildings and the contents in those buildings. DATES: Comments are to be submitted on or before August 5, 2008. ADDRESSES: The corresponding preliminary Flood Insurance Rate Map
(FIRM)for the proposed BFEs for each community are available for inspection at the community's map repository. The respective addresses are listed in the table below. You may submit comments, identified by Docket No. FEMA-B-7778, to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-3151, or (e-mail) *bill.blanton@dhs.gov* . FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-3151 or.(e-mail) *bill.blanton@dhs.gov* . SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA)proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent. *Administrative Procedure Act Statement.* This matter is not a rulemaking governed by the Administrative Procedure Act (APA), 5 U.S.C. 553. FEMA publishes flood elevation determinations for notice and comment; however, they are governed by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and the National Flood Insurance Act of 1968, 42 U.S.C. 4001 *et seq.* , and do not fall under the APA. *National Environmental Policy Act.* This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Executive Order 12866, Regulatory Planning and Review.* This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended. *Executive Order 13132, Federalism.* This proposed rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This proposed rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is proposed to be amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.4 [Amended] 2. The tables published under the authority of § 67.4 are proposed to be amended as follows: Flooding source(s) Location of referenced elevation** * Elevation in feet
(NGVD)+ Elevation in feet
(NAVD)# Depth in feet above ground Effective Modified Communities affected Jackson County, North Carolina, and Incorporated Areas Abbs Creek At the confluence with Caney Fork None +2419 Unincorporated Areas of Jackson County. Approximately 0.4 mile upstream of East Brasstown Road (State Road 1744) None +2688 Allens Branch At the confluence with Scott Creek None +2074 Unincorporated Areas of Jackson County, Town of Sylva. Approximately 1,500 feet upstream of East Nugget Lane None +2480 Barkers Creek At the confluence with Tuckasegee River None +1899 Unincorporated Areas of Jackson County. Approximately 350 feet upstream of West Barkers Creek Road (State Road 1392) None +2022 Big Witch Creek At the confluence with Wrights Creek None +2438 Eastern Band of Cherokee Indians. Approximately 1.6 miles upstream of the confluence with Wrights Creek None +3024 Blackrock Creek At the confluence with Soco Creek None +2530 Unincorporated Areas of Jackson County, Eastern Band of Cherokee Indians. Approximately 1.3 miles upstream of confluence with Soco Creek None +3052 Blanton Branch At the confluence with Scott Creek None +2143 Unincorporated Areas of Jackson County. Approximately 1,200 feet upstream of East Racking Cove (State Road 1775) None +2371 Brook Branch At the confluence with Greens Creek None +2140 Unincorporated Areas of Jackson County. Approximately 220 feet upstream of East Alpine Road None +2199 Brushy Fork At the confluence with Greens Creek None +2261 Unincorporated Areas of Jackson County. Approximately 20 feet upstream of West Brushy Fork Road (State Road 1371) None +2327 Buff Creek At the confluence with Scott Creek None +2260 Unincorporated Areas of Jackson County. Approximately 1,900 feet upstream of East Bamboo Trail None +2428 Bumgarner Branch At the confluence with Mill Creek (into Tuckasegee River) None +2114 Unincorporated Areas of Jackson County. Approximately 1,200 feet upstream of Big Orange Way None +2136 Camp Creek At the confluence with Tuckasegee River None +1856 Unincorporated Areas of Jackson County. Approximately 50 feet upstream of East Firefly Road (State Road 1408) None +2088 Cane Branch At the confluence with Tuckasegee River None +1871 Unincorporated Areas of Jackson County. Approximately 1,670 feet upstream of the confluence with Tuckasegee River None +1953 Cane Creek Approximately 50 feet upstream of East Old Cullowhee Road (State Road 1002) None +2058 Unincorporated Areas of Jackson County. Approximately 2,000 feet upstream of East Old Cullowhee Road (State Road 1002) None +2122 Caney Fork Approximately 10 feet upstream of the confluence with Tuckasegee River None +2123 Unincorporated Areas of Jackson County. Approximately 0.9 mile upstream of the confluence of Mull Creek None +2932 Cedar Creek At the confluence with West Fork Tuckasegee River None +3499 Unincorporated Areas of Jackson County. Approximately 1.1 miles upstream of East Receptive Drive None +3672 Chastine Creek At the confluence with Cane Creek None +2550 Unincorporated Areas of Jackson County. Approximately 2,000 feet upstream of East Caney Fork Road (State Road 1737) None +2824 Chattooga River At the North Carolina/South Carolina State boundary None +2150 Unincorporated Areas of Jackson County. Approximately 0.7 mile upstream of the confluence of Chattooga River Tributary 5 None +3399 Cope Creek Approximately 80 feet upstream of confluence with Scott Creek +2045 +2046 Unincorporated Areas of Jackson County, Town of Sylva. Approximately 50 feet upstream of East Claude Cook Road (State Road 1712) None +2396 Cox Branch At the confluence with Cullowhee Creek None +2107 Unincorporated Areas of Jackson County, Town of Forest Hills. Approximately 1,450 feet upstream of West Slate Mountain None +2204 Crooked Creek At the confluence with Tuckasegee River None +1853 Unincorporated Areas of Jackson County, Eastern Band of Cherokee Indians. Approximately 1,400 feet upstream of East Dynasty Drive None +1891 Cullowhee Creek Approximately 400 feet upstream of West Camp Lab Road None +2096 Unincorporated Areas of Jackson County. Approximately 300 feet upstream of West Ramp Cove Road None +2367 Cullowhee Creek Tributary 3 At the confluence with Cullowhee Creek None +2137 Unincorporated Areas of Jackson County. Approximately 110 feet upstream of West Parker Farm Road (State Road 1166) None +2170 Dark Ridge Creek At the confluence with Scott Creek None +2632 Unincorporated Areas of Jackson County. Approximately 0.5 mile upstream of the confluence with Scott Creek None +2686 Dicks Creek At the confluence with Tuckasegee River None +1933 Unincorporated Areas of Jackson County. Approximately 900 feet upstream of East Dicks Creek Road (State Road 1388) None +2216 Dills Branch Approximately 90 feet upstream of U.S. Highway 23/74 None +2021 Unincorporated Areas of Jackson County, Town of Sylva. Approximately 320 feet upstream of East Dills Cove Road (State Road 1380) None +2534 Dills Creek (into Fisher Creek) At the confluence with Fisher Creek None +2396 Unincorporated Areas of Jackson County. Approximately 650 feet upstream of West Dills Branch Road None +2821 East Fork Savannah Creek At the confluence with Savannah Creek None +2175 Unincorporated Areas of Jackson County. Approximately 1,700 feet upstream of West Chickadee Lane None +2342 Fisher Creek At the confluence with Scott Creek None +2118 Unincorporated Areas of Jackson County. Approximately 150 feet upstream of West Kellogg Lane None +2467 Flat Creek At the confluence with Tuckasegee River None +2566 Unincorporated Areas of Jackson County. Approximately 2.3 miles upstream of the confluence with Tuckasegee River None +3275 Fowler Creek At the confluence with Chattooga River None +2706 Unincorporated Areas of Jackson County. Approximately 1,430 feet upstream of West Chimney Top Trail None +3415 Gem Creek At the confluence with Little Pine Creek None +3534 Unincorporated Areas of Jackson County. Approximately 900 feet upstream of West Salt Rock Road (State Road 1160) None +3550 Gladie Creek At the confluence with Tuckasegee River None +2566 Unincorporated Areas of Jackson County. Approximately 1.3 miles upstream of the confluence with Tuckasegee River None +2644 Grassy Camp Creek At the confluence with Norton Creek None +3632 Unincorporated Areas of Jackson County. Approximately 800 feet upstream of Norton Road (State Road 1143) None +3678 Greenland Creek At the confluence with Panthertown Creek and Tuckasegee River None +3654 Unincorporated Areas of Jackson County. Approximately 1.2 miles upstream of the confluence with Panthertown Creek and Tuckasegee River None +3711 Greens Creek At the confluence with Savannah Creek None +2119 Unincorporated Areas of Jackson County. Approxmimately 1,060 feet upstream of West Sugar Fork Road (State Road 1370) None +2417 Hornbuckle Creek At the confluence with Soco Creek None +2776 Unincorporated Areas of Jackson County, Eastern Band of Cherokee Indians. Approximately 0.9 mile upstream of the confluence with Soco Creek None +3042 Horsepasture River At the Jackson/Transylvania County boundary None +2973 Unincorporated Areas of Jackson County. Approximately 0.4 mile upstream of U.S. 64 Highway None +3208 Horsepasture River Tributary 4 At the confluence with Horsepasture River None +3141 Unincorporated Areas of Jackson County. Approximately 1,400 feet upstream of the confluence with Horsepasture River None +3147 Hurricane Creek At the confluence with West Fork Tuckasegee River None +3499 Unincorporated Areas of Jackson County. Approximately 0.8 mile upstream of North Norton Road (State Road 1145) None +3635 Jacks Creek At the confluence with Tuckasegee River None +1884 Unincorporated Areas of Jackson County. Approximately 700 feet upstream of U.S. Highway 74 None +1935 Johns Creek At the confluence with Caney Fork None +2292 Unincorporated Areas of Jackson County. Approximately 1,800 feet upstream of East Nicholson Cove Road (State Road 1748) None +2479 Kitchen Branch At the confluence with Scott Creek None +2105 Unincorporated Areas of Jackson County. Approximately 1,350 feet upstream of East Kitchen Branch Road (State Road 1442) None +2714 Knob Creek At the confluence with Norton Creek None +3578 Unincorporated Areas of Jackson County. Approximately 1,350 feet upstream of Flintlock Road None +3985 Laurel Branch At the confluence with Tuckasegee River None +1918 Unincorporated Areas of Jackson County. Approximately 1,600 feet upstream of Cowee Tunnel Road None +2119 Little Pine Creek At the confluence with Pine Creek None +3532 Unincorporated Areas of Jackson County. Approximately 180 feet upstream of West Salt Rock Road (State Road 1160) None +3582 Little Savannah Creek At the confluence with Savannah Creek None +2028 Unincorporated Areas of Jackson County. Approximately 800 feet upstream of East Little Savannah Road (State Road 1367) None +2190 Locust Creek Approximately 500 feet upstream of the confluence with Tuckasegee River +2042 +2043 Unincorporated Areas of Jackson County. Approximately 0.5 mile upstream of West Match Point None +2314 Logan Creek At the confluence with Horsepasture River None +3158 Unincorporated Areas of Jackson County. Approximately 0.6 mile upstream of U.S. 64 Highway None +3170 Long Branch Approximately 950 feet upstream of East Little Savannah Road (State Road 1367) None +2235 Unincorporated Areas of Jackson County. Approximately 1,650 feet upstream of East Little Savannah Road (State Road 1367) None +2262 Long Branch (into Horsepasture River) At the confluence with Horsepasture River None +3128 Unincorporated Areas of Jackson County. Approximately 980 feet upstream of U.S. Highway 64 None +3134 Mill Creek At the confluence with West Fork Tuckasegee River None +3499 Unincorporated Areas of Jackson County. Approximately 940 feet upstream of Sunbird Lane None +3780 Mill Creek (into Tuckasegee River) At the confluence with Tuckasegee River None +2026 Unincorporated Areas of Jackson County, Town of Sylva, Town of Webster. Approximately 150 feet upstream of the confluence of Bumgarner Branch None +2114 Monteith Branch At the confluence with Scott Creek None +2114 Unincorporated Areas of Jackson County. Approximately 1,010 feet upstream of West Razorback Trail None +3118 Moses Creek At the confluence with Caney Fork None +2198 Unincorporated Areas of Jackson County. Approximately 30 feet upstream of East Moses Creek Road None +2371 Mull Creek At the confluence with Caney Fork None +2709 Unincorporated Areas of Jackson County. Approximately 0.5 mile upstream of East Caney Fork Road (State Road 1737) None +2845 Nations Creek At the confluence with Tuckasegee River None +1869 Unincorporated Areas of Jackson County. Approximately 0.9 mile upstream of confluence with Tuckasegee River None +2011 Norton Creek At the confluence with West Fork Tuckasegee River None +3499 Unincorporated Areas of Jackson County. Approximately 600 feet upstream of Jodytown Road (State Road 1150) None +3677 Norton Mill Creek At the confluence with Chattooga River None +2566 Unincorporated Areas of Jackson County. Approximately 0.6 mile upstream of West Whiteside Cove Road (State Road 1107) None +2767 Ochre Hill Creek At the confluence with Scott Creek None +2227 Unincorporated Areas of Jackson County. Approximately 1,520 feet upstream of the confluence with Scott Creek None +2271 Panthertown Creek At the confluence with Greenland Creek and Tuckasegee River None +3654 Unincorporated Areas of Jackson County. Approximately 0.7 mile upstream of the confluence of Panthertown Creek Tributary 1 None +3702 Panthertown Creek Tributary 1 At the confluence with Panthertown Creek None +3662 Unincorporated Areas of Jackson County. Approximately 1,540 feet upstream of the confluence with Panthertown Creek None +3674 Peewee Branch At the confluence with Greens Creek None +2332 Unincorporated Areas of Jackson County. Approximately 685 feet upstream of the confluence with Greens Creek None +2357 Pine Creek At the confluence with West Fork Tuckasegee River None +3499 Unincorporated Areas of Jackson County. Approximately 0.6 mile upstream of West Pine Creek Road (State Road 1163) None +3568 Pressley Creek At the confluence with Tilley Creek None +2186 Unincorporated Areas of Jackson County. Approximately 800 feet upstream of the confluence with Tilley Creek None +2204 Savannah Creek At the confluence with Tuckasegee River None +2004 Unincorporated Areas of Jackson County. Approximately 0.4 mile upstream of the confluence of Shell Branch None +3081 Scott Creek At the confluence with Tuckasegee River None +1974 Unincorporated Areas of Jackson County, Town of Dillsboro, Town of Sylva. Approximately 350 feet upstream of U.S. 74/23 Highway None +3164 Scott Creek Tributary 13 At the confluence with Scott Creek None +2127 Unincorporated Areas of Jackson County. Approximately 850 feet upstream of East Skyland Drive (State Road 1432) None +2160 Shoal Creek At the confluence with Soco Creek +1941 +1943 Unincorporated Areas of Jackson County. Approximately 1.4 miles upstream of East Olivet Church Road (State Road 1424) None +2052 Silver Run Creek At the confluence with Whitewater River None +3303 Unincorporated Areas of Jackson County. Approximately 0.9 mile upstream of East Moody Road (State Road 1106) None +3465 Slickens Creek At the confluence with Tuckasegee River None +2893 Unincorporated Areas of Jackson County. Approximately 1,300 feet upstream of the confluence with Tuckasegee River None +3181 Soapstone Creek At the confluence with Scott Creek None +2541 Unincorporated Areas of Jackson County. Approximately 580 feet upstream of East Cripple Creek (State Road 1708) None +2627 Soco Creek Approximately 1,100 feet downstream of U.S. Highway 441 +1935 +1936 Unincorporated Areas of Jackson County, Eastern Band of Cherokee Indians. Approximately 350 feet upstream of the confluence of Hornbuckle Creek None +2808 Sugar Fork At the confluence with Greens Creek None +2359 Unincorporated Areas of Jackson County. Approximately 800 feet upstream of the confluence with Greens Creek None +2400 Sutton Branch At the confluence with Savannah Creek None +2098 Unincorporated Areas of Jackson County. Approximately 0.6 mile upstream of U.S. 23/441 Highway None +2196 Tanasee River At the confluence with Tuckasegee River None +3078 Unincorporated Areas of Jackson County. Approximately 0.4 mile upstream of East Tannassee Creek Road (State Road 1262) None +3157 Tatham Creek At the confluence with Savannah Creek None +2241 Unincorporated Areas of Jackson County. Approximately 1,400 feet upstream of the confluence with Savannah Creek None +2289 Tilley Creek At the confluence with Cullowhee Creek None +2150 Unincorporated Areas of Jackson County. Approximately 0.6 mile upstream of West Tilley Creek Road (State Road 1001) None +2424 Trout Creek At the confluence with West Fork Tuckasegee River None +2439 Unincorporated Areas of Jackson County. Approximately 0.4 mile upstream of East Trout Creek Road (State Road 1131) None +2771 Tuckasegee River Approximately 150 feet downstream of the Jackson/Swain County boundary None +1835 Unincorporated Areas of Jackson County. The confluence of Greenland Creek and Panthertown Creek None +3654 Tuckasegee River Tributary 13 At the confluence with Tuckasegee River None +1849 Unincorporated Areas of Jackson County. Approximately 500 feet upstream of West Thomas Cove Road None +1881 Tuckasegee River Tributary 42 At the confluence with Tucksegee River None +2129 Unincorporated Areas of Jackson County. Approximately 930 feet upstream of the confluence with Tuckasegee River None +2132 Wayehutta Creek Approximately 500 feet upstream of the confluence with Tuckasegee River +2079 +2080 Unincorporated Areas of Jackson County. Approximately 1,260 feet upstream of East Wayehutta Road (State Road 1731) +2079 +2096 West Fork Tuckasegee River At the confluence with Tuckasegee River None +2149 Unincorporated Areas of Jackson County. At the confluence of Hurricane Creek None +3499 Whitewater River At the North Carolina/South Carolina State boundary None +1961 Unincorporated Areas of Jackson County. Approximately 550 feet upstream of confluence of Silver Run Creek None +3308 Wolf Creek At the confluence with Tuckasegee River None +2571 Unincorporated Areas of Jackson County. Approximately 2.3 miles upstream of West Canada Road None +3108 Wrights Creek Approximately 500 feet upstream of the confluence with Soco Creek +2054 +2055 Eastern Band of Cherokee Indians. Approximately 0.9 mile upstream of the confluence of Big Witch Creek None +2708 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Eastern Band of Cherokee Indians Maps are available for inspection at Ginger Lynn Welch Complex, 810 Aquoni Road, Cherokee, NC. Town of Dillsboro Maps are available for inspection at Dillsboro Town Office, 42 Front Street, Dillsboro, NC. Town of Forest Hills Maps are available for inspection at Jackson County Inspections Department, 401 Grindstaff Cove Road, Suite 105, Sylva, NC. Town of Sylva Maps are available for inspection at Sylva Town Hall, 83 Allen Street, Sylva, NC. Town of Webster Maps are available for inspection at Jackson County Inspections Department, 401 Grindstaff Cove Road, Suite 105, Sylva, NC. Unincorporated Areas of Jackson County Maps are available for inspection at Jackson County Inspections Department, 401 Grindstaff Cove Road, Suite 105, Sylva, NC. Jackson County, Ohio, and Incorporated Areas North Pigeon Creek Approximately 800 feet downstream of Chessie System Railroad None +630 Unincorporated Areas of Jackson County. Approximately 580 feet upstream of County Highway 31 None +641 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Jackson County Maps are available for inspection at GIS Office, 237 E. Main Street, Jackson, OH 45640. Rusk County, Wisconsin, and Incorporated Areas Chippewa River At County Boundary with Chippewa County +1045 +1046 Unincorporated Areas of Rusk County. Approximately 7.5 miles upstream of County Highway E None +1065 Flambeau River At its confluence with Chippewa River +1056 +1054 Unincorporated Areas of Rusk County, City of Ladysmith. Approximately 1.5 miles upstream of U.S. Highway 8 +1117 +1120 Flambeau River At Dairyland Reservoir None +1184 Unincorporated Areas of Rusk County. At Big Falls Dam None +1190 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Ladysmith Maps are available for inspection at City Hall, 120 Miner Avenue West, Ladysmith, WI 54848. Unincorporated Areas of Rusk County Maps are available for inspection at Rusk County Courthouse, 311 East Miner Avenue, Ladysmith, WI 54848. (Catalog of Federal Domestic Assistance No. 97.022, “Flood Insurance.”) Dated: April 29, 2008. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E8-10152 Filed 5-6-08; 8:45 am] BILLING CODE 9110-12-P 73 89 Wednesday, May 7, 2008 Notices DEPARTMENT OF AGRICULTURE Agricultural Research Service Notice of Intent To Grant Exclusive License AGENCY: Agricultural Research Service, USDA. ACTION: Notice of intent. SUMMARY: Notice is hereby given that the U.S. Department of Agriculture, Forest Service, intends to grant to H2H Innovations, LLC of Wilmington, Delaware, an exclusive license to the Federal Government's patent rights in U.S. Patent No. 7,345,136, “Water-Resistant Vegetable Protein Adhesive Dispersion Compositions”, issued on March 18, 2008. DATES: ( **Federal Register** ) Comments must be received within thirty
(30)days of the date of publication of this Notice in the **Federal Register** . ADDRESSES: Send comments to: Janet I. Stockhausen, USDA, Forest Service, Forest Products Laboratory, One Gifford Pinchot Drive, Madison, Wisconsin 53726-2398. FOR FURTHER INFORMATION CONTACT: Janet I. Stockhausen of the USDA Forest Service at the address given above; telephone: 608-231-9502; fax: 608-231-9508; or e-mail: jstockhausen@fs.fed.us. SUPPLEMENTARY INFORMATION: The Federal Government's patent rights in this invention are assigned to the United States of America, as represented by the Secretary of Agriculture. It is in the public interest to so license this invention as H2H Innovations, LLC of Wilmington, Delaware, has submitted a complete and sufficient application for a license. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within thirty
(30)days from the date of this published Notice, the Forest Service receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. Richard J. Brenner, Assistant Administrator. [FR Doc. E8-10018 Filed 5-6-08; 8:45 am] BILLING CODE 3410-03-P DEPARTMENT OF AGRICULTURE Foreign Agricultural Service Privacy Act of 1974: New System of Records AGENCY: Foreign Agricultural Service, USDA. ACTION: Notice of a new system of records. SUMMARY: The Foreign Agricultural Service
(FAS)proposes to add a system of records notice to its inventory of records systems subject to the Privacy Act of 1974 as amended (5 U.S.C. 552a). This action is necessary to meet the requirements of the Privacy Act to publish in the **Federal Register** notice of the existence and character of records systems maintained by the agency (5 U.S.C. 552a(e)(4)). DATES: This action will be effective without further notice June 6, 2008 unless comments are received that would result in a contrary determination. ADDRESSES: Send written comments to Privacy Act Officer, William Hawkins, Director, Program Management Division, USDA/FAS/OAO, Mail Stop 1065, 1400 Independence Avenue, SW., Washington, DC 20250-1065, telephone
(202)720-3241, e-mail: *william hawkins@fas.usda.gov.* FOR FURTHER INFORMATION CONTACT: Lana Bennett, Director, Import and Trade Support Programs Division, USDA/FAS/OTP, Mail Stop 1021, 1400 Independence Avenue, SW., Washington, DC 20250-1021; e-mail: *lana.bennett@fas.usda.gov;* telephone:
(202)720-0638. SUPPLEMENTARY INFORMATION: The Dairy Import Licensing Group maintains the web-based Dairy Accelerated Importer Retrieval and Information Exchange System (DAIRIES) to administer the Dairy Import Licensing Program. Importers can apply for, receive and monitor their dairy import licenses through DAIRIES. Importers must have a U.S. Customs and Border Protection (Customs) importer number, which is either an employer identification number or a social security number, in order to apply for a license. Importers must meet required annual minimum import amounts in order to be eligible to apply for a license. The Dairy Import Licensing Group must verify if the importer's eligible, which can only be done by accessing the importer's Customs record using their Customs importer number. A small percentage of the importers that apply under the program continue to use their social security number as their Customs importer number. USDA/FAS-8 SYSTEM NAME: Dairy Accelerated Importer Retrieval and Information Exchange System (DAIRIES). SYSTEM LOCATION: Electronic records are located at Foreign Agricultural Service, United States Department of Agriculture, 1400 Independence Avenue, SW., Washington, DC 20250. CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM: Importers that are self-proprietors and maintain a valid Customs importer number. CATEGORIES OF RECORDS IN THE SYSTEM: The data in the system for individuals include their name, address, telephone number, and a social security number or employer identification number as the Customs importer number. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: The import licensing program is authorized by 7 CFR part 6, 19 U.S.C. 1202, 3513 and 3601, and 31 U.S.C. 9701. The collection of the social security numbers by Customs is authorized by 19 CFR 24.5. PURPOSE: The Dairy Import Licensing Group will maintain the information in DAIRIES to verify the eligibility of persons applying for a dairy import license by accessing the importer Customs record using the Customs importer number. STORAGE: Records are stored in paper and electronic format. RETRIEVABILITY: Records are retrieved by a unique control number, assigned by the Dairy Import Licensing Group. SAFEGUARDS: All records containing personal information are maintained in secured file cabinets or in restricted areas, in which access is limited to authorized personnel. Access to computerized data is password-protected and under the responsibility of the system manager and subordinates. The database administrator has the ability to review audit trails, thereby permitting regular ad hoc monitoring of computer usage. RETENTION AND DISPOSAL: Records are maintained for a period of 5 years, as required by 7 CFR part 6. The records are then destroyed in accordance with USDA procedures. SYSTEM MANAGER AND ADDRESS: Brenda Lawson, Chief, Application Development Branch, USDA/FAS/OAO/ITD, Mail Stop 1064, 1400 Independence Avenue, SW., Washington, DC 20250-1064. NOTIFICATION PROCEDURE: Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to the Privacy Act Officer, William Hawkins, Director, Program Management Division, USDA/FAS/OAO, Mail Stop 1065, 1400 Independence Avenue, SW., Washington, DC 20250-1065. Individuals must identify DAIRIES in their inquiries. RECORDS ACCESS PROCEDURES: Individuals who wish to gain access to or amend their own records should contact the Dairy Import Licensing Group, Mail Stop 1021, 1400 Independence Avenue, SW., Washington, DC 20250-1021. RECORD SOURCE CATEGORIES: These records contain information obtained from the individual who is the subject of these records. EXEMPTION CLAIMED FOR THE SYSTEM: None. Date: April 25, 2008. Michael W. Yost, Administrator, Foreign Agricultural Service. [FR Doc. E8-10006 Filed 5-6-08; 8:45 am] BILLING CODE 3410-10-M DEPARTMENT OF AGRICULTURE Forest Service Ketchikan-Misty FiordsFiords Ranger District; Tongass National Forest; Alaska; Central Gravina Timber Sale Environmental Impact Statement AGENCY: Forest Service, USDA. ACTION: Notice of Intent to Prepare an Environmental Impact Statement. SUMMARY: The Forest Service, U.S. Department of Agriculture will prepare an Environmental Impact Statement
(ETS)on a proposal to construct roads and harvest timber in central Gravina Island on the Ketchikan Misty Fiords Ranger District, Tongass National Forest. Two Alternatives have been developed for the public to comment on. These Proposed Alternatives would harvest between 18 and 38 million board feet
(MMBF)of timber on between 515 and 1,250 acres and would construct between 7 and 16 miles of road respectively. DATES: Opportunities for comments are available throughout the analysis process. Comments concerning the scope of the analysis will be most helpful if received within 30 days of the date of this notice. Additional opportunities for comment will be provided after release of both the Draft Environmental Impact Statement which is expected to be published November 2008 and the Final Environmental Impact Statement and Record of Decision are expected in May 2009. ADDRESSES: Send or hand deliver written comments to the Ketchikan Misty Fiords Ranger District, Attn: Central Gravina ElS, Tongass National Forest, 3031 Tongass Avenue, Ketchikan, AK 99901; telephone
(907)225-2148. The FAX number is
(907)225-8738. Send e-mail comments to: *comments-alaska-tongass-ketchikan-mistyfiord@fs.fed.us* with Central Gravina EIS on the subject line. Include your name, address, and organization name if you are commenting as a representative. FOR FURTHER INFORMATION CONTACT: For further information, mail correspondence to Lynn Kolund, District Ranger, Ketchikan Misty Fiords Ranger District, Tongass National Forest, 3031 Tongass Avenue, Ketchikan, AK 99901, telephone
(907)228-4100 or Linda Pulliam, Interdisciplinary Team Leader, Ketchikan Misty Fiords Ranger District, Tongass National Forest, 3031 Tongass Avenue, Ketchikan, AK 99901, telephone
(907)228-4124. SUPPLEMENTARY INFORMATION: This EIS will tier to the 2008 Tongass Land and Resource Management Plan (Forest Plan) that provides overall guidance, goals, objectives, and management area direction to achieve the desired condition for the project area. The project area is administered by the Ketchikan-Misty Fiords Ranger District of the Tongass National Forest, Ketchikan, Alaska and occurs in Value Comparison Units
(VCUs)7610 and VCU 7630 as designated by the Forest Plan. The Central Gravina project area is located between Bostwick Inlet and Vallenar Bay on Gravina Island, which is located approximately 5 miles west of Ketchikan. The land use designation
(LUD)for the project area is Timber Production. As part of the Forest Plan update certain LUDs on Gravina Island were adjusted based on comments received from the public during the Forest Plan draft EIS review. LUDs to the south and west of the Central Gravina project area have been adjusted and allocated to more restrictive non development LUDs. The proposed timber harvest units and roads are within the Gravina Inventoried Roadless Area #522. Slightly over three-quarters of inventoried roadless acres are included in non-development LUDS. The Forest Plan allocates 24% of the inventoried roadless acres to development LUDs; only three percent of the land in inventoried roadless areas would be included in the suitable land base. The Central Gravina project area falls within this three percent inventory roadless area that lies within a Timber LUD. The 2008 Forest Plan Timber Sale Program Adaptive Management Strategy identified three phases of projected timber development. The Central Gravina project area falls within the Phase 1, which includes most of the roaded portion of the ASQ land base and most of the lower valued inventoried roadless areas. Purpose and Need for Action The purpose and need for the proposed action responds to the goals and objectives identified by the 2008 Tongass Land and Resource Management Plan, and helps move the area toward the Forest Plan desired conditions. Forest Plan goals, objectives, and desired conditions that apply to the project include: 1. Maintain and promote wood production from suitable forest lands, providing a continuous supply of wood to meet society's needs. 2. Manage Forest lands for sustained long-term timber yields. 3. Seek to provide a supply of timber that meets the annual and planning- cycle market demand, consistent with the standards and guidelines for this LUD. Proposed Action (Alternative 3) The Central Gravina Timber Harvest proposed action (Alternative 3) is to harvest approximately 38 million board feet
(MMBF)of timber volume from approximately 1,250 acres of forested land in 53 harvest units while meeting Forest Plan standards. The proposed action includes using ground-based shovel, cable, helicopter yarding systems. Areas suitable for ground-based or cable logging would be harvested with even-aged (clearcut) harvest prescriptions. Helicopter logging areas would be harvested either with even-aged (clearcut) or uneven-aged (group or single tree selection) harvest prescriptions depending on terrain, tree species, economics, or environmental concerns. All timber harvest will use silviculture prescriptions suited to meet the standards and guidelines for the Tongass Forest Plan. The proposed action includes construction of approximately 14 miles of National Forest System and 2 miles of temporary road would be constructed. All logs would be hauled by truck to a privately owned log transfer facility located near Pacific Log and Lumber on Tongass Narrows. Alternative 2 An alternative to the proposed action is to build roads to harvest timber units only on the east side of the central valley on Gravina Island. This alternative would harvest approximately 515 acres from 25 Units yielding 18 MMBF of timber volume. This proposes construction of approximately 6 miles of National Forest System and 1 mile of temporary road would be constructed. All logs would be hauled by truck to a marine access facility located near Pacific Log and Lumber on Tongass Narrows. Alternative 2 provides an option for roadless area concerns. Public Participation This notice initiates the scoping process which guides the development of the environmental impact statement. The Forest Service will be seeking information, comments, and assistance from Tribal Governments, Federal, State, and local agencies, individuals and organizations may be interested in, or affected by, the proposed activities. In addition to this Notice of Intent, legal notices and display ads will be placed in the *Ketchikan Daily News.* The *Ketchikan Daily News* is the official newspaper of record for this project. Written scoping comments are being solicited through a scoping letter that was mailed to interested individuals and agencies on May 6, 2008. The scoping process includes:
(1)Identification of potential issues;
(2)identification of issues to be analyzed in depth; and
(3)elimination of non-significant issues or those that have been covered by a previous environmental review. Based on results of scoping and the resource capabilities within the project area, alternatives including a “no-action” alternative will be developed for the Draft Environmental Impact Statement. Subsistence hearings, as provided for in Title VIII, Section 810 of the Alaska National Interest Lands Conservation Act (ANILCA), will be conducted, if necessary, during the comment period on the Draft Environmental Impact Statement. Importance of Public Participation in Subsequent Environmental Review A Draft Environmental Impact Statement will be prepared for comment. The comment period on the Draft Environmental Impact Statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the **Federal Register** . The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of Draft Environmental Impact Statement must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions, ( *Vermont Yankee Nuclear Power Corp.* v. *NRDC,* 435 U.S. 519, 553 (1978). Also, environmental objections that could be raised at the Draft Environmental Impact Statement stage but that are not raised until after completion of the Final Environmental Impact Statement may be waived or dismissed by the courts, *City of Angoon* v. *Hodel,* 803 F.2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc.* v. *Harris,* 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45-day comment period so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the Final Environmental Impact Statement. To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the Draft Environmental Impact Statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the Draft Environmental Impact Statement. Comments may also address the adequacy of the Draft Environmental Impact Statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection. Comments submitted anonymously will be accepted and considered; however, those who submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR 215 or 217. Permits or Licenses Required 1. U.S. Army Corps of Engineers • Approval of discharge of dredge or fill material into the waters for the United States under Section 404 of the Clean Water Act; • Approval of the construction of structures or work in navigable waters of the United States under Section 10 of the Rivers and Harbor Act of 1899; 2. Environmental Protection Agency • General National Pollutant Discharge Elimination System for Log Transfer Facilities in Alaska; • Review Spill Prevention Control and Countermeasure Plan; 3. State of Alaska, Department of Environmental Conservation
(DEC)• Tideland Permit and Lease or Easement; • Certification of Compliance with Alaska Water Quality Standards (401 Certification) Chapter 20 4. Alaska State Division of Natural Resources
(DNR)• Division of Coastal and Ocean Management (DCOM)—ACMP Consistency Determination Comment Requested This notice of intent initiates the scoping process which guides the development of the environmental impact Statement. Responsible Official Forrest Cole, Forest Supervisor, Tongass National Forest, Federal Building, 648 Mission Street, Ketchikan, Alaska 99901. Nature of Decision To Be Made *The Forest Supervisor will decide:* 1. If the project will proceed under a chosen alternative, as a modified alternative, or not at all. 2. The design criteria, mitigations and monitoring requirements the Forest Service will apply to the project. The responsible official will consider the comments, responses, disclosure of environmental consequences, and applicable laws, regulations and policies in making the decision and state his rationale in the Record of Decision. (Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21) Dated: April 29, 2008. Forrest Cole, Forest Supervisor. [FR Doc. E8-9929 Filed 5-6-08; 8:45 am] BILLING CODE 3410-11-M COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the Missouri Advisory Committee Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the Missouri Advisory Committee to the Commission will convene by conference call at 10 a.m. and adjourn at approximately 12 p.m. on Thursday, May 22, 2008. The purpose of this meeting is to conduct SAC orientation and plan future activities. This meeting is available to the public through the following toll-free call-in number:
(866)364-7584, conference call access code number 42559706. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and contact name Farella E. Robinson. To ensure that the Commission secures an appropriate number of lines for the public, persons are asked to register by contacting Corrine Sanders of the Central Regional Office and TTY/TDD telephone number, by 4:00 p.m. on May 16, 2008. Members of the public are entitled to submit written comments. The comments must be received in the regional office by May 16, 2008. The address is U.S. Commission on Civil Rights, 400 State Avenue, Suite 908, Kansas City, Kansas 66101. Comments may be e-mailed to *frobinson@usccr.gov.* Records generated by this meeting may be inspected and reproduced at the Central Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's Web site, *http://www.usccr.gov,* or to contact the Central Regional Office at the above e-mail or street address. The meetings will be conducted pursuant to the provisions of the rules and regulations of the Commission and FACA. Dated in Washington, DC, May 2, 2008. Christopher Byrnes, Chief, Regional Programs Coordination Unit. [FR Doc. E8-10155 Filed 5-6-08; 8:45 am] BILLING CODE 6335-01-P COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the Rhode Island Advisory Committee Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that orientation and planning meetings of the Rhode Island Advisory Committee to the Commission will convene at 11:30 a.m. on Wednesday, May 14, 2008, at the Urban League of Rhode Island, located at 246 Prairie Ave. in Providence Rhode Island. The purpose of these meetings is to provide an orientation to new members and plan future activities of the committee. After the meeting, the committee will hear from presenters who will discuss fair housing issues in Rhode Island. Members of the public are entitled to submit written comments; the comments must be received in the regional office by June 13, 2008. The address is Eastern Regional Office, 624 9th St., NW., Washington, DC 20425. Persons wishing to e-mail their comments, or who desire additional information should contact Alfreda Greene, Secretary, at 202-376-7533 or by e-mail to: *agreene@usccr.gov.* Hearing-impaired persons who will attend the meetings and require the services of a sign language interpreter should contact the Regional Office at least ten
(10)working days before the scheduled date of the meetings. Records generated from these meetings may be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meetings. Persons interested in the work of this advisory committee are advised to go to the Commission's Web site, *http://www.usccr.gov,* or to contact the Eastern Regional Office at the above e-mail or street address. The meetings will be conducted pursuant to the provisions of the rules and regulations of the Commission and FACA. Dated in Washington, DC, May 2, 2008. Christopher Byrnes, Chief, Regional Programs Coordination Unit. [FR Doc. E8-10075 Filed 5-6-08; 8:45 am] BILLING CODE 6335-01-P DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request The Department of Commerce will submit to the Office of Management and Budget
(OMB)for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). *Agency:* Bureau of Economic Analysis (BEA). *Title:* Survey of International Travel Expenditures. *OMB Control Number:* None. *Form Number(s):* None. *Type of Request:* Regular submission. *Burden Hours:* 1,000. *Number of Respondents:* 6,000. *Average Hours per Response:* 10 minutes. *Needs and Uses:* The proposed survey of international travel expenditures is authorized by the Bretton Woods Agreements Act, Section 8, and Executive Order 10033, as amended. The Act allows the DOC/BEA to collect the data necessary to produce the U.S. international transactions accounts (ITAs), which are part of the U.S. obligations to the International Monetary Fund. The survey will collect information on travel expenditures by method of payment (cash, credit card, etc.) from U.S. travelers returning from abroad and foreign travelers leaving the United States. This survey is needed to improve the quality of the travel component of the U.S. ITAs, which are used by government and other organizations for national and international economic policy formulation and analytical purposes. *Affected Public:* Individuals or households. *Frequency:* One-time only. *Respondent's Obligation:* Voluntary. *OMB Desk Officer:* Paul Bugg,
(202)395-3093. Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer,
(202)482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via e-mail at *dHynek@doc.gov* ). Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Paul Bugg, OMB Desk Officer, FAX number
(202)395-7245 or via e-mail at *pbugg@omb.eop.gov* . Dated: May 2, 2008. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E8-10049 Filed 5-6-08; 8:45 am] BILLING CODE 3510-EA-P DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Docket 19-2008] Foreign-Trade Zone 26 Atlanta, GA, Withdrawal of Application for Subzone Status, Kia Motors Manufacturing Georgia, Inc. (Motor Vehicles) Notice is hereby given of the withdrawal of the application requesting special-purpose subzone status for the motor vehicle manufacturing plant of Kia Motors Manufacturing Georgia, Inc. The application was filed on March 28, 2008 (73 FR 20247, 4-15-2008). The withdrawal was requested due to changed circumstances involving potential expansion of FTZ 26 to include new general-purpose (multi-user) sites in the western Georgia area, and the case has been closed without prejudice. Dated: April 25, 2008. Andrew McGilvray, Executive Secretary. [FR Doc. E8-10077 Filed 5-6-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE Foreign-Trade Zones Board Docket 28-2008 Foreign-Trade Zone 38 Spartanburg County, SC, Request for Manufacturing Authority, ZF Lemförder Corporation (Automotive Suspension Systems) An application has been submitted to the Foreign-Trade Zones Board (the Board) by the South Carolina State Ports Authority, grantee of FTZ 38, pursuant to Section 400.28(a)(2) of the Board's regulations (15 CFR Part 400), requesting authority on behalf of ZF Lemförder Corporation (Lemförder), to assemble automotive suspension systems under FTZ procedures within FTZ 38. It was formally filed on April 30, 2008. The Lemförder facility (71 employees) is located at 191 Parkway West (Site 3) in Duncan, South Carolina. Under FTZ procedures, Lemförder would assemble up to 105,000 automotive suspension systems (HTSUS 8708.80) annually for the U.S. market and export. Foreign components that would be used in the assembly activity (up to 100% of total purchases) include: stoppers/lids/caps, reinforced tubes/pipes/hoses, articles of rubber, fasteners, helical and leaf springs, cables and wires, fittings, check valves, brake system parts, suspension systems and related parts, dampeners, height sensors, wheel hubs, drive shafts, universal joints, and ball bearings (duty rates: free - 9.0%). FTZ procedures would exempt Lemförder from customs duty payments on the foreign components used in production for export. On domestic shipments transferred in-bond to U.S. automobile assembly plants with subzone status, no duties would be paid on the foreign components within the suspension systems until the finished vehicles are subsequently entered for consumption, at which time the finished automobile duty rate (2.5%) could be applied to the foreign components. For the suspension systems withdrawn directly by Lemförder for customs entry, the finished automotive suspension system rate (2.5%) could be applied to the foreign inputs noted above. The application indicates that the company would also realize duty deferral and certain logistical/supply chain savings. The application indicates that the savings from FTZ procedures would help improve the facility's international competitiveness. In accordance with the Board's regulations, Pierre Duy of the FTZ Staff is designated examiner to investigate the application and report to the Board. Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the following address: Office of the Executive Secretary, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, DC 20230-0002. The closing period for receipt of comments is July 7, 2008. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to July 21, 2008. A copy of the application will be available for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at the address listed above. For further information, contact Pierre Duy, examiner, at: pierre_duy@ita.doc.gov, or
(202)482-1378. Dated: April 30, 2008. Andrew McGilvray, Executive Secretary. [FR Doc. E8-10089 Filed 5-6-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE Foreign-Trade Zones Board (Docket 26-2008) Foreign-Trade Zone 14 -- Little Rock, Arkansas Application for Subzone Status Husqvarna Outdoor Products Inc. (Outdoor Power Products Manufacturing) Nashville, Arkansas An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Arkansas Economic Development Commission, grantee of Foreign-Trade Zone
(FTZ)14, requesting special-purpose subzone status for the outdoor power products manufacturing facility of Husqvarna Outdoor Products Inc. (Husqvarna) located in Nashville, Arkansas. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR Part 400). It was formally filed on April 29, 2008. The Husqvarna facility is located at 1 Poulan Drive, in Nashville (96 acres, 1,400 employees). The facility is used for manufacturing various types of gas-powered outdoor products (blowers, trimmers and chainsaws, HTSUS numbers 8414.59, 8430.20, 8467.89 and 8467.81). At full capacity the Husqvarna facility can produce up to 3.9 million units annually. Imported components and raw materials account for approximately 35 percent of the value of inputs used in manufacturing. Parts and components that may be imported into the proposed subzone for manufacturing include: plastic tubes, pipes and hoses (3917.29); petroleum oils and oils from bituminous minerals (2710.19); carbides (2849.90); lubricating preparations (3403.19); polymides (3908.10); plastic monofilament (3916.90); self-adhesive plate, sheet, film, foils, tape and strip of plastics ( 3919.90); other plate, sheet, film, foil and strip of polymers of styrene (3921.11); plastic articles used for packing or conveyance of goods (3923.10, 3923.29, 3923.50, 3923.90); other plastic articles (3926.90); vulcanized rubber tubes, pipes and hoses (4009.11); vulcanized rubber conveyor or transmission belts (4010.36, 4010.39); vulcanized rubber washers and seals (4016.93); other vulcanized rubber products (4016.99); synthetic twine, cordage, rope and cable (5607.50); articles of yarn, strip, twine, cordage, rope or cable (5609.50); textile articles and products for technical uses (5911.90); labels (6307.90); millstones, grindstones and grinding wheels (6804.21, 6804.22); iron or steel flanges (7307.91, 7307.92); self-tapping screws (7318.14); screws and bolts, with or without washers (7318.15); nuts (7318.16); spring washers and lock washers (7318.21); non-threaded articles of iron or steel (7318.29); iron or steel helical springs (7320.90); tungsten articles/powders (8101.10); agriculture, horticulture or forestry hand tools and their parts (8201.90); handsaws, blades and their parts (8202.40); files, rasps, pliers, pincers, tweezers, pipe and bolt cutters and similar (8203.20); hand-operated spanners and wrenches (8204.11); hand tools for drilling, threading or tapping (8205.10); screwdrivers and their parts (8205.40); anvils, forges and grinding wheels and their parts (8205.70); vises, clamps and their parts (8205.70); pressing, stamping and punching tools and their parts (8207.30); drilling tools (8207.50, 8207.90); iron or steel flexible tubing (8307.10); spark-ignition internal combustion engine parts (8409.91); fuel, lubricating and cooling pumps for internal combustion piston engines and their parts (8413.30, 8413.91); air and vacuum pumps and their parts (8414.59, 8414.90); air filters (8421.31); spray guns (8424.20); tool holders (8466.10); check valves and their parts (8481.30); pressure-reducing and thermostatically controlled valves (8481.80); ball bearings (8482.10); needle roller bearings (8482.40); transmission shafts, camshafts and crankshafts and their parts (8483.10); bearing housings/plain shaft bearings (8483.30); gears and gearing and other transmission elements, including torque converters (8483.40); flywheels and pulleys, including pulley blocks (8483.50); clutches and shaft couplings, including universal joints (8483.60); toothed wheels, chain sprockets and other transmission elements (8483.900); universal AC/DC motors (8501.20); single-phase AC motors (8501.20); multi-phase AC motors (8501.52); AC generators/alternators (8501.61); electrical transformers, static convertors, inductors and their parts (8504.33, 8504.40); electromagnetic couplings, clutches and brakes (8505.20); primary cells and batteries (8506.80); lead-acid storage batteries (8507.20); spark plugs (8511.10); ignition coils (8511.30); electrical ignition or starting equipment parts (8511.90); microphones and loudspeakers (8518.30); electrical switches (8536.50); lamp-holders, plugs and sockets (8536.69, 8536.90); fluorescent lamps (8539.31); microwave tubes (8540.89); winding wire (8544.20); electrical conductors (8544.42, 8544.49); Drive and non-drive axles and parts thereof (8708.50); trailers and semi-trailers and their parts (8716.80); micrometers, calipers and gauges (9017.30); other instruments (9017.80); revolution and production counters, taximeters, odometers and pedometers (9029.10); and, stroboscopes (9029.20). The duty rates on the imported components range from duty-free to 12 percent. This application requests authority for Husqvarna to conduct the manufacturing activity under FTZ procedures, which could exempt the company from customs duty payments on the imported components used in export production. Approximately 30 percent of production is exported. On domestic sales, the company could choose the lower duty rate (duty-free to 2.3 percent) that applies to the finished products for the imported components used in manufacturing. Husqvarna may also realize savings related to direct delivery and weekly customs entry procedures. The company would also realize savings on the elimination of duties on materials that become scrap/waste during manufacturing. The application indicates that the FTZ-related savings would improve the plant’s international competitiveness. In accordance with the Board’s regulations, Christopher Kemp of the FTZ staff is designated examiner to investigate the application and report to the Board. Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board’s Executive Secretary at the address listed below. The closing period for their receipt is July 7, 2008. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to July 21, 2008). A copy of the application and accompanying exhibits will be available at each of the following addresses: U. S. Department of Commerce Export Assistance Center, 425 West Capital Avenue, Suite 425, Little Rock, Arkansas, 72201; and, Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, D.C. 20230. For further information contact Christopher Kemp at christopher_kemp@ita.doc.gov or
(202)482-0862. Dated: April 30, 2008. Andrew McGilvray, Executive Secretary. [FR Doc. E8-10086 Filed 5-6-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE Foreign-Trade Zones Board (Docket 27-2008) Foreign-Trade Zone 14 -- Little Rock, Arkansas Application for Subzone Status Husqvarna Outdoor Products Inc. (Outdoor Power Products Manufacturing) De Queen, Arkansas An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Arkansas Economic Development Commission, grantee of Foreign-Trade Zone
(FTZ)14, requesting special-purpose subzone status for the outdoor power products manufacturing facility of Husqvarna Outdoor Products Inc. (Husqvarna) located in De Queen, Arkansas. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR Part 400). It was formally filed on April 29, 2008. The Husqvarna facility is located at 123 Red Bridge Road, in De Queen (13 acres, 850 employees). The facility is used for manufacturing various types of electric-powered outdoor products (blowers, trimmers and chainsaws, HTSUS numbers 8414.59, 8467.22, 8467.29, 8467.89 and 8467.81). At full capacity the Husqvarna facility can produce up to 4.5 million units annually. Imported components and raw materials account for approximately 35 percent of the value of inputs used in manufacturing. Parts and components that may be imported into the proposed subzone for manufacturing include: plastic tubes, pipes and hoses (3917.29); petroleum oils and oils from bituminous minerals (2710.19); carbides (2849.90); lubricating preparations (3403.19); polymides (3908.10); plastic monofilament (3916.90); self-adhesive plate, sheet, film, foils, tape and strip of plastics ( 3919.90); other plate, sheet, film, foil and strip of polymers of styrene (3921.11); plastic articles used for packing or conveyance of goods (3923.10, 3923.29, 3923.50, 3923.90); other plastic articles (3926.90); vulcanized rubber tubes, pipes and hoses (4009.11); vulcanized rubber conveyor or transmission belts (4010.36, 4010.39); vulcanized rubber washers and seals (4016.93); other vulcanized rubber products (4016.99); synthetic twine, cordage, rope and cable (5607.50); articles of yarn, strip, twine, cordage, rope or cable (5609.50); textile articles and products for technical uses (5911.90); labels (6307.90); iron or steel flanges (7307.91, 7307.92); self-tapping screws (7318.14); screws and bolts, with or without washers (7318.15); nuts (7318.16); spring washers and lock washers (7318.21); non-threaded articles of iron or steel (7318.29); iron or steel helical springs (7320.90); tungsten articles/powders (8101.10); agriculture, horticulture or forestry hand tools and their parts (8201.90); handsaws, blades and their parts (8202.40); iron or steel flexible tubing (8307.10); spark-ignition internal combustion engine parts (8409.91); fuel, lubricating and cooling pumps for internal combustion piston engines and their parts (8413.30, 8413.91); air and vacuum pumps and their parts (8414.59, 8414.90); air filters (8421.31); tool holders (8466.10); check valves and their parts (8481.30); pressure-reducing and thermostatically controlled valves (8481.80); ball bearings (8482.10); needle roller bearings (8482.40); transmission shafts, camshafts and crankshafts and their parts (8483.10); bearing housings/plain shaft bearings (8483.30); gears and gearing and other transmission elements, including torque converters (8483.40); flywheels and pulleys, including pulley blocks (8483.50); clutches and shaft couplings, including universal joints (8483.60); toothed wheels, chain sprockets and other transmission elements (8483.900); universal AC/DC motors (8501.20); single-phase AC motors (8501.20); multi-phase AC motors (8501.52); AC generators/alternators (8501.61); electrical transformers, static convertors, inductors and their parts (8504.33, 8504.40); electromagnetic couplings, clutches and brakes (8505.20); primary cells and batteries (8506.80); lead-acid storage batteries (8507.20); spark plugs (8511.10); ignition coils (8511.30); electrical ignition or starting equipment parts (8511.90); microphones and loudspeakers (8518.30); electrical switches (8536.50); lamp-holders, plugs and sockets (8536.69, 8536.90); fluorescent lamps (8539.31); electrical conductors (8544.42, 8544.49); and, revolution and production counters, taximeters, odometers and pedometers (9029.10). The duty rates on the imported components range from duty-free to 10.8 percent. This application requests authority for Husqvarna to conduct the manufacturing activity under FTZ procedures, which could exempt the company from customs duty payments on the imported components used in export production. Approximately 30 percent of production is exported. On domestic sales, the company could choose the lower duty rate (duty-free to 2.3 percent) that applies to the finished products for the imported components used in manufacturing. Husqvarna may also realize savings related to direct delivery and weekly customs entry procedures. The company would also realize savings on the elimination of duties on materials that become scrap/waste during manufacturing. The application indicates that the FTZ-related savings would improve the plant’s international competitiveness. In accordance with the Board’s regulations, Christopher Kemp of the FTZ staff is designated examiner to investigate the application and report to the Board. Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board’s Executive Secretary at the address listed below. The closing period for their receipt is July 7, 2008. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to July 21, 2008). A copy of the application and accompanying exhibits will be available at each of the following addresses: U. S. Department of Commerce Export Assistance Center, 425 West Capital Avenue, Suite 425, Little Rock, Arkansas, 72201; and, Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, D.C. 20230. For further information contact Christopher Kemp at christopher_kemp@ita.doc.gov or
(202)482-0862. Dated: April 30, 2008. Andrew McGilvray, Executive Secretary. [FR Doc. E8-10085 Filed 5-6-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE Bureau of Industry and Security Proposed Information Collection; Comment Request; Prior Notification of Exports Under License Exception Agriculture Commodities AGENCY: Bureau of Industry and Security. ACTION: Notice. SUMMARY: The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. DATES: Written comments must be submitted on or before July 7, 2008. ADDRESSES: Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at *dHynek@doc.gov* ). FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument and instructions should be directed to Larry Hall, BIS ICB Liaison,
(202)482-4896, *lhall@bis.doc.gov.* SUPPLEMENTARY INFORMATION: I. Abstract Section 906 of the Trade Sanctions Reform and Export Enhancement Act
(TSRA)requires that exports of agricultural commodities, medicine or medical devices to Cuba are made pursuant to one-year licenses and that the requirements of one-year licenses shall be no more restrictive than license exceptions administered by the Department of Commerce. Exports and certain reexports of agricultural commodities are also authorized under License Exception AGR to Cuba. To meet the requirements of TSRA, BIS has imposed a prior notification procedure under License Exception Agricultural Commodities (AGR). The prior notification procedure requires exporters to complete a form BIS-748P (approved under OMB Control No. 0694-0088) and after eleven days if no U.S. Government agency objects, the exporter is free to export the items. II. Method of Collection Paper format. III. Data *OMB Control Number:* 0694-0123. *Form Number(s):* BIS-748P. *Type of Review:* Regular submission. *Affected Public:* Business or other for-profit organizations; not-for-profit institutions. *Estimated Number of Respondents:* 215. *Estimated Time Per Response:* 58 minutes. *Estimated Total Annual Burden Hours:* 208. *Estimated Total Annual Cost to Public:* $0. IV. Request for Comments Comments are invited on:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record. Dated: May 2, 2008. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E8-10083 Filed 5-6-08; 8:45 am] BILLING CODE 3510-33-P DEPARTMENT OF COMMERCE Bureau of Industry and Security [Docket No. 05-BIS-08] In the Matter of: Kabba & Amir Investments, Inc., d.b.a. International Freight Forwarders, 286 Attwell Drive #16, Toronto, ON M9W 5B2, Canada, Respondent; Final Decision and Order This matter is before me upon a Recommended Decision and Order (“RDO”) of an Administrative Law Judge (“ALJ”), as further described below. In a charging letter filed on June 28, 2005, the Bureau of Industry and Security (“BIS”) alleged that Respondent Kabba & Amir Investments, Inc., d/b/a International Freight Forwarders (“IFF”), committed two violations of the Export Administration Regulations (currently codified at 15 CFR Parts 730-774
(2008)(“Regulations”)), issued pursuant to the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420 (2000)) (the “Act”), 1 stemming from its involvement in an attempted unlicensed export of items subject to the Regulations from the United States to Cuba. Charge One of the charging letter alleged as follows: *Charge 1 15 CFR 764.2(b)—Aiding and abetting an attempted violation of the Regulations.* On or about June 29, 2000, IFF aided and abetted the doing of an act prohibited by the Regulations when it took possession of a shipment of X-Ray Film Processors, items subject to the Regulations, in the United States for export to Cuba via Canada. Under section 746.2 of the Regulations, a BIS export license was required for this shipment, but no such license was obtained. In aiding and abetting the attempted export, IFF committed one violation of section 764.2([b])2 of the Regulations. June 28, 2005 Charging Letter, at 1. On November 6, 2007, BIS filed a motion for summary decision against IFF as to Charge One. During the briefing of this motion, BIS withdrew the only other charged violation, Charge Two, which alleged that IFF had conspired to violate the Regulations. See § 7663(a) of the Regulations (“BIS may unilaterally withdraw charging letters at any time, by notifying the respondent and the administrative law judge.”). The ALJ entered an order of dismissal as to Charge Two on January 29, 2008, consistent with BIS's notice of withdrawal of that charge. On April 2, 2008, based on the record before him, the ALJ issued an RDO in which he determined that BIS was entitled to summary decision as to Charge One, finding that IFF had committed one violation of § 764.2(b) when it aided and abetted an attempted unlicensed export of items subject to the Regulations to Cuba, via Canada. The ALJ also recommended, following consideration of the record, that IFF be assessed a monetary penalty of $6,000.00 and a denial of export privileges for three years. The ALJ further recommended that the denial of export privileges be suspended for a period of three years as long as IFF pays the monetary penalty of $6,000.00 within thirty days of the final Decision and Order and does not commit any further violations of the Act or Regulations within three years of the issuance of the final Decision and Order. The RDO, together with the entire record in this case, has been referred to me for final action under § 766.22 of the Regulations. I find that the record supports the ALJ's findings of fact and conclusions of law. In making this finding, I have determined that the ALJ made at least an implied finding that IFF took constructive possession of the items in question when it had the items transported by truck to Canada, arranged for them to then be transported to Cuba by plane, and took other actions to effect their forwarding and the completion of their unlicensed export to Cuba. Such a finding is entirely consistent with Charge One of the charging letter and the RDO. See, e.g., RDO at 5-6 (making finding based on uncontroverted documentary exhibits submitted by BIS in support of its Motion for Summary Decision, including Respondent's Answer, that IFF had, inter alia, agreed to forward the items from the United States to Cuba, had the items trucked to Canada, and arranged for their further transport by plane to Cuba prior to the items being seized by Canada Customs); RDO at 13 (“BIS established by documentary evidence and IFF's admissions that there exists no genuine issues of material fact that Respondent violated 15 CFR 764.2(b) by aiding and abetting in the attempted export of X-Ray film Processors (classified as EAR 99) from the United States to Cuba, via Canada on or about June 29, 2000.”) I also find that the penalty recommended by the ALJ based upon his review of the entire record is appropriate, given the nature of the violations, the facts of this case, and the importance of deterring future unauthorized exports or attempted exports. Based on my review of the entire record, I affirm the findings of fact and conclusions of law in the RDO. Accordingly, *it is therefore ordered,* First, that a civil penalty of $6,000.00 is assessed against Kabba & Amir Investments, Inc., d/b/a International Freight Forwarders, which shall be paid to the U.S. Department of Commerce within
(30)thirty days from the date of entry of this Order. Second, pursuant to the Debt Collection Act of 1982, as amended (31 U.S.C. 3701-3720E (2000)), the civil penalty owed under this Order accrues interest as more fully described in the attached Notice, and, if payment is not made by the due date specified herein, Kabba & Amir Investments, Inc., d/b/a International Freight Forwarders, will be assessed, in addition to the full amount of the civil penalty and interest, a penalty charge and administrative charge. Third, for a period of three
(3)years from the date that this Order is published in the **Federal Register** , Kabba & Amir Investments, Inc., d/b/a International Freight Forwarders, 286 Attwell Drive #16, Toronto, ON M9W 5B2, Canada (“IFF”), its successors or assigns, and when acting for or on behalf of IFF, its representatives, agents, officers or employees (hereinafter collectively referred to as “Denied Person”) may not participate, directly or indirectly, in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations, including, but not limited to: A. Applying for, obtaining, or using any license, License Exception, or export control document; B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or C. Benefiting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations. Fourth, that no person may, directly or indirectly, do any of the following: A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations; B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control; C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States; D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing. Fifth, that, after notice and opportunity for comment as provided in § 766.23 of the Regulations, any person, firm, corporation, or business organization related to the Denied Person by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of the Order. Sixth, that this Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are the foreign-produced direct product of U.S.-origin technology. Seventh, that, as authorized by § 766.17(c) of the Regulations, the denial period set forth above shall be suspended in its entirety, and shall thereafter be waived, provided that:
(1)Within thirty days of the effective date of the Decision and Order, IFF pays the monetary penalty of $6,000.00 in full, and
(2)during the period of the suspension IFF commits no further violations of the Act or Regulations. Eighth, that the final Decision and Order shall be served on IFF and on BIS and shall be published in the **Federal Register** . In addition, the ALJ's Recommended Decision and Order, except for the section related to the Recommended Order, shall also be published in the **Federal Register** . This Order, which constitutes the final agency action in this matter, is effective upon publication in the **Federal Register** . Dated: April 30, 2008. Mario Mancuso, Under Secretary of Commerce for Industry and Security. 1. From August 21, 1994 through November 12, 2000, the Act was in lapse. During that period, the President, through Executive Order 12924, which had been extended by successive Presidential Notices, the last of which was August 3, 2000 (3 CFR, 2000 Comp. 397 (2001)), continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706 (2000)) (“IEEPA”). On November 13, 2000, the Act was reauthorized and remained in effect through August 20, 2001. Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2007 (72 FR 46137 (August 16, 2007)), has continued the Regulations in effect under IEEPA. 2. Due to a typographical error, BIS referred to section 764.2(d) in the last sentence of the original Charge One. This typographical error was later corrected by BIS, as noted by the ALJ in fn. 4 of the RDO. 3. The sanction recommended by the ALJ also is consistent with the sanction proposed by BIS, which based its request on the facts and circumstances of the case as a whole. [FR Doc. E8-9980 Filed 5-6-08; 8:45 am] BILLING CODE 3510-DT-M DEPARTMENT OF COMMERCE Bureau of Industry and Security [Docket No. 05-BIS-08] Recommended Decision and Order; In the Matter of: Kabba & Amir Investments, Inc., d.b.a. International Freight Forwarders, 286 Attwell Drive #16, Toronto, ON M9W 5B2, Canada; Respondent(s) Issued: April 2, 2008 *Issued By:* Hon. Michael J. Devine Presiding. *Appearances:* For the Bureau of Industry and Security: Charles G. Wall, Esq., Joseph V. Jest, Esq., John T. Masterson, Office of Chief Counsel for Industry & Security, U.S. Department of Commerce, Room H-3839, 14th Street & Constitution Ave., NW., Washington, DC 20230. For Respondent Kabba & Amir Investments, Inc., d.b.a. International Freight Forwarders, A. Rahman Amir, Managing Director, pro se. Preliminary Statement The Bureau of Industry and Security 1 (“BIS” or “Agency”) commenced this administrative enforcement action against Kabba & Amir Investments, Inc. d.b.a. International Freight Forwarders (“IFF” or “Respondent”). In a Charging Letter dated June 27, 2005, BIS alleges that on or about June 29, 2000, 2 IFF committed two violations of the Export Administration Act of 1979 (“Act”), as amended and codified at 50 U.S.C. App. 2401-20 (2000), and the Export Administration Regulations (“EAR” or “Regulations”), as amended and codified at 15 CFR parts 730-74 (2000 & 2007). 3 1 On April 26, 2002, through an internal organizational order, the Department of Commerce changed the name of BXA to BIS. See Industry and Security Programs: Change of Name, 67 Fed. Reg. 20630 (Apr. 26, 2002). Pursuant to the Savings Provision of the order, “Any actions undertaken in the name of or on behalf of the Bureau of Export Administration, whether taken before, on, or after the effective date of this rule, shall be deemed to have been taken in the name of or on behalf of the Bureau of Industry and Security.” *Id.* at 20631. 2 The charged violation occurred in 2000. The regulations governing the violations at issue are found in the 2000 version of the Code of Federal Regulations (15 CFR 730-74 (2000)). The 2007 regulations codified at 15 CFR Part 766 establish the procedural rules that apply to this matter. 3 The EAA and all regulations promulgated there under expired on August 20, 2001. *See* 50 U.S.C. App. 2419. Three days before its expiration, on August 17, 2001, the President declared the lapse of the BAA constitutes a national emergency. 5g Exec. Order. No. 13222, reprinted in 3 CFR at 783-784, 2001 Comp. (2002). Exercising authority under the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. 1701-1706 (2002), the President maintained the effectiveness of the BAA and its underlying regulations throughout the expiration period by issuing Exec. Order. No. 13222 on August 17, 2001. *Id.* The effectiveness of the export control laws and regulations were further extended by successive Notices issued by the President; the most recent being that of August 15, 2007. See Notice: Continuation of Emergency Regarding Export Control Regulations, 72 Fed. Reg. 46, 137 (August 15, 2007). Courts have held that the continuation of the operation and effectiveness of the BAA and its regulations through the issuance of Executive Orders by the President constitutes a valid exercise of authority. *See* Wisconsin Project on *Nuclear Arms Control* v. *United States Dep't of Commerce, 317 F.3d 275, 278-79 (D.C. Cir. 2003);* *Times Publ'g Co.* v. *U.S. Department of Commerce, 236 F.3d 1286, 1290 (11th Cir. 2001).* The allegations stem from IFF's involvement in the export of X-Ray Film Processors to Cuba via Canada without first obtaining the required United States government license for the transaction. Both charges read as follows: Charge 1 15 CFR 764.2(b)—Aiding and Abetting an Attempted Violation of the Regulations On or about June 29, 2000, IFF aided and abetted the doing of an act prohibited by Regulations when it took possession of a shipment of X-Ray Film Processors, items subject to the Regulations, in the United States for export to Cuba via Canada. Under section 746.2 of the Regulations, a BIS export license was required for this shipment, but no such license was obtained. In aiding and abetting the attempted export, IFF committed one violation of sections 764.2(b)
(sic)of the Regulations. 4 4 In the Charging Letter, BIS mistakenly cites to section 764.2(d) instead of section 764.2(b). This is a typographical error, which BIS corrects in the Motion for Summary Decision filed on November 6, 2007. Prior decisions have allowed BIS to amend an incorrect citation in the Charging Letter caused by a typographical error. *See* e.g. In re Export Materials, Inc., 64 Fed. Reg. 40,820, 40,820 n. 3 (Jul. 28, 1999). This is especially true where, as in this case, the amendment is not a substantive change and it in no way prejudices the respondent. Charge 2 15 CFR 764.2(d)—Conspiracy To Do an Act That Is in Violation of the Regulations On or about June 29, 2000, IFF conspired with one or more persons to do an act that constituted a violation of the Regulations. Specifically, IFF arranged with co-conspirators, known and unknown, to export X-Ray Film Processors, items subject to the Regulations, to Cuba via Canada without the BIS export license required by section 746.2 of the Regulations. IFF took one or more acts in furtherance of the conspiracy, including taking possession of the items in the United States. In so doing, IFF committed one violation of section 764.2(d) of the Regulations. On November 6, 2007, BIS filed a Motion for Summary Decision on Charge 1. In support thereof, BIS argues that there are no genuine issues as to any material fact because of IFF's admissions regarding its participation in the attempted export from the United States to Cuba. Therefore, BIS states it is entitled to summary decision as a matter of law. Attached to its motion were eight
(8)exhibits marked Government Exhibit (“Gov't Ex.”) A-H. A pre-hearing conference was conducted on December 18, 2007, at which time a scheduling order was issued establishing, among other things, a deadline for Respondent to file an Answer to the BIS Motion for Summary Decision. Order Memorializing Pre-Hearing Conference, December 20, 2007. IFF timely filed a response to the Motion for Summary Decision on January 8, 2008. While IFF does not deny its participation in the transaction at issue, the company argues that Charge 1 should be dismissed. To support its argument, IFF asserts that Gov't Ex. C-E are irrelevant. IFF also states that the company lacked any knowledge that the shipment at issue was manufactured in the United States or that an export control permit was required. According to IFF, the shipper is responsible for securing the required export control permits, not the freight forwarder. Therefore, IFF asserts that the company cannot be found liable for violating 15 CFR 764.2(b). BIS filed a reply on January 24, 2008. BIS attached to its reply brief two additional exhibits, marked Gov't Ex. I and J. Both exhibits attempt to attack the credibility of IFF's assertion of ignorance concerning the origin of the X-Ray Film Processors. Following a pre-hearing conference, the previous Scheduling Order dated December 20, 2007, was modified and IFF was provided an opportunity to introduce rebuttal evidence concerning Gov't Ex. I and J. See Scheduling Order, February 19, 2008. A deadline was also established for BIS to file a proposed sanction and for IFF to submit rebuttal evidence concerning the proposed sanction. *Id.* BIS timely filed a Motion for Proposed Sanction. IFF provided a response dated February 25, 2008, regarding the BIS submission that included Exhibits I and J 5 but did not submit a response to the Motion for Proposed Sanction. 5 It is noted that on February 13, 2008, Respondent filed a letter addressing Gov't Ex. J, as well as other matters concerning the BIS's discovery request. Nonetheless, to ensure that Respondent was offered a reasonable opportunity to file rebuttal evidence to the new exhibits filed by BIS in accordance with 15 CFR 766.15 (2007), the scheduling order was established. On January 24, 2008, BIS also filed a Notice of Withdrawal of Charge 2. Pursuant to 15 CFR 766.3(a), BIS may “unilaterally withdraw charging letters at any time, by notifying the respondent and the administrative law judge.” While section 766.3(a) only refers to unilateral withdrawal of charging letters, implicit in the regulations is the fact that BIS may unilaterally withdraw a single charge. Accordingly, Charge 2 was dismissed by Order dated January 29, 2007. Order Granting Motion to Withdraw Charge 2. For reasons stated below, BIS's Motion for Summary Decision on Charge 1 is GRANTED. Since Charge 2 was withdrawn by BIS, this Recommended Decision & Order resolves the entire case. Recommended Findings of Fact The facts, when viewed in a light most favorable to IFF, establish: 1. IFF is a Canadian freight forwarding business ( *Gov't Ex. B* ). 2. Kontron Instruments S.A. (Kontron) is a French based company ( *Gov't Ex. K* ). 3. On May 29, 2000, Kontron issued Purchase Order # 17-3688-58-1124 to Medical Equipment Specialists, Inc., a United States based company ( *Gov't Ex. C* ). 6 6 Gov't Ex. C contains a typographical error, which is now being corrected. Gov't Ex. C indicates that Medical Equipment Specialists, Inc. is located in “Shrewsbuty, MA 01545.” The true name of the city is “Shrewsbury”, not “Shrewsbuty.” *See* ( *Gov't Ex. E* (Medical Equipment Specialists, Inc.'s Invoice)). 4. Purchase Order # 17-3688-58-1124 was for four
(4)AFP brand X-Ray Film Developers Minimed 90 with initial supplies and parts. ( *Id.* ). 7 7 Throughout this case, “AFP brand X-Ray Film Developers Minimed 90”, “Minimed 90 PRCSR 110/60”, “Mini-Med X-Ray Film Processors,” “AFP Mini-medical/90 X-Ray Processors” are names used to refer to the same item, X-Ray Film Processors. 5. The X-Ray Film Developers were to be shipped to IFF in Canada. ( *Id* .). 6. On June 23, 2000, Invoice # 70467 was issued to Medical Equipment Specialists, Inc. for four
(4)Minimed 90 PRCSR 110/60. ( *Gov't Ex. D* ). 7. On June 28, 2000, Medical Equipment Specialists, Inc. issued Invoice # 624865 for four
(4)Mini-Med X-Ray Film Processors sold to Kontron. The items were to be shipped to IFF in Canada by “Truck Air Freight” and “Via Ground to Canada.” ( *Gov't Ex. K* ). 8. IFF admits that on or around June 29, 2000, the company was “advised to pickup a shipment from United States for furtherance to Cuba.” ( *Gov't Ex. B* ). 9. With respect to the Cuban shipment, Kontron instructed IFF to, among other things: a. Remove all packing lists and shipping documents attached to the parcels; b. Attach new packing lists to the parcels and affix new shipping labels on top of the original labels; c. Reserve a space on the next available flight on Cubana de Aviacion to Habana-Cuba; d. Prepare an Air way bill for the shipment; e. Complete the Certificate of Origin by typing the Airline Company, Flight number, and date of flight; and f. Secure insurance for the benefit of Technoimport-Habana-Cuba. ( *Gov't Ex. F* ). 10. IFF never inquired whether a license was obtained for the export of the X-Ray Film Processors from the United States to Cuba, via Canada. *See generally* *Kabba & Amir Investments, Inc. letter dated Jan. 8, 2008* (regarding response to the BIS motion for summary decision). 11. Upon arrival from the United States, the shipment was seized by Canada Customs and Revenue Agency from a Canadian custom bonded warehouse to which IFF could not access. ( *Gov't Ex. B* ). 12. The APP Mini-medical/90 X-Ray Processors are classified as EAR99. ( *Gov't Ex. G, see also* 15 CFR 734.3 (2000)). 13. In 2000, the United States had a virtual embargo on the export and re-export of certain goods from the United States to Cuba. However, there was a limited exception for medical items and agricultural goods. Such items required an export license. ( *Gov't Ex. G; see also* 15 CFR 746.2 (2000)). 14. Even though the Medical X-Ray Film Processors are U.S. origin goods, Medical Equipment Specialists, Inc. failed to secure the required license. ( *Gov't Ex. H-J* ). Discussion A. Standard of Review The standard for review of a motion for summary decision is set forth in 15 CFR 766.8 (2007). That standard of review is the same legal standard adopted in Rule 56(c) of the Federal Rules of Civil Procedure. Under section 766.8, summary decision is appropriate where the entire record shows that:
(a)There is no genuine issue as to any material fact; and
(b)the moving party is entitled to summary decision as a matter of law. 15 CFR 766.8 (2007). A dispute over a material fact is “genuine” if the evidence is such that a reasonable fact finder could render a ruling in favor of the non-moving party. * Anderson* v. *Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).* Substantive law dictates which facts are material, and only disputes that might affect the outcome of the litigation will properly preclude the entry of summary decision. *Id.* at 247. When reviewing a summary judgment motion, all competing inferences and evidence are viewed in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255. The burden of proof is on the moving party to identify those portions of the record that demonstrate absence of a genuine issue of material fact. *Id.* at 25 1-255; *Celotex Corp.* v. *Catrett, 477 U.S. 317, 322-24 (1986).* Once the moving party proves that there exists no genuine issue of material fact, the burden shifts to the non-moving party to identify specific facts evidencing triable issues of fact. *Id.* A simple denial or conclusory allegations are insufficient to defeat a summary decision motion. See In re: MK Technology Assoc., Ltd., 64 Fed. Reg. 69,478 (Dec. 13, 1999). B. Substantive Law/Regulations The EAA and EAR govern exports from the United States. *See* 50 U.S.C. App. 2402(2)(A), 2404(A)(1), 2405(A)(1), and 15 CFR 730.2 (2000). In 2000, there was a virtual embargo on the export and re-export of certain goods from the United States to Cuba. ( *Gov't Ex. G* ). Section 746.2(a) established, “you will need a license to export or reexport all items subject to the EAR * * * to Cuba.” *See* 15 CFR 746.2(a) (2000). The phrase “ ‘[s]ubject to the EAR’ * * * describes those items and activities over which the [Agency] exercises regulatory jurisdiction.” *See* 15 CFR 734.2(a)(1). It broadly includes:
(a)All items in the United States, including in a U.S. Foreign Trade Zone or moving in transit through the United States from one foreign country to another;
(b)All U.S. origin items wherever located;
(c)U.S. origin parts, components, materials, or other commodities incorporated abroad into foreign-made products, U.S. origin software commingled with foreign software, and U.S. origin technology commingled with foreign technology, in quantities exceeding *de minimis* levels;
(d)Certain foreign-made direct products of U.S. origin technology or software; and
(e)Certain commodities produced by any plant or major component of a plant located outside the United States that is a direct product of U.S. origin technology or software. *See* 15 CFR 734.3(a). 8 8 Items subject to the EAR are listed in the Commerce Control List
(CCL)located in part 774 of the EAR. 15 CFR 734.3(c). Those items subject to the EAR which are not listed on the CCL are designated as EAR99. *Id.* Section 736.2(b)(6) contains a general prohibition against the “export or reexport of any items subject to the EAR [without a license or License Exception] to a country that is embargoed by the United States or otherwise made subject to controls * * * as described in part 746 of the EAR.” *See* 15 CFR 736.2(b)(6) (2000). The “export or reexport of items subject to the EAR that will transit through * * * or be transshipped in a country or countries to a new country or are intended for reexport to the new country, are deemed to be exports to the new country.” *See* 15 CFR 734.2(b)(6). The term “ ‘Export’ means an actual shipment or transmission of items subject to the EAR out of the United States.” *See* 15 CFR 734.2(b)(1). Conversely, the term “ ‘Reexport’ means an actual shipment or transmission of items subject to the EAR from one foreign country to another foreign country * * * outside the United States.” *Id.* at (b)(4). The export or reexport need not be completed to constitute a violation of the EAR. The mere attempt to export or reexport an item subject to the EAR without a license constitutes a violation. *See* 15 CFR 764.2(c). Further, a person is not relieved of ones obligation to comply with the EAR simply because that person complied with the license or other requirements of foreign law or regulation. *See* 15 CFR 734.12. IFF is charged with aiding and abetting the attempted unlicensed export of X-Ray Film Processors to Cuba via Canada in violation of section 764.2(b), which states:
(c)Causing, aiding, or abetting a violation. No person may cause or aid, abet, counsel, command, induce, procure, or permit the doing of any act prohibited or the omission of any act required, by the EAA, the EAR, or any order, license or authorization issued thereunder. *See* 15 CFR 764.2(b). C. IFF's Answer constitutes an admission thereby eliminating any genuine issue of material fact. In these proceedings, a respondent's Answer to the Charging Letter is critical in framing the factual issues in the case. In re Jabal Damavand General Trading Co., 67 Fed. Reg. 32,009 (May 13, 2002). There are no factual issues in dispute where a respondent admits the allegations contained in the Charging Letter. An “admission” is defined as “a voluntary acknowledgement made by a party of the existence of the truth of certain facts.” Black's Law Dictionary 47 (6th Ed. 1990). The issue in this case is whether IFF's answer to the Charging Letter and subsequent responses operate as an admission thereby eliminating any genuine issues of material fact in this case. The Agency points to IFF's letter dated January 17, 2006 wherein Mr. A. Rahman Amir, Managing Director of IFF, acknowledges the company was “advised to pickup a shipment from United States for furtherance to Cuba.” In the same breadth, however, IFF claims that:
(1)The company was “not aware of the * * * origin of the goods” or that the goods required an “export control permit” and
(2)under Canadian law, the shipper—not the freight forwarder—is responsible for obtaining the “export control permit.” Both arguments are rejected. Based on a reading of IFF's Answer, the aforementioned response effectively operates as an admission. Respondent's contention that they “were not aware of the nature of the good [or] the origin of the goods” does not absolve the company of liability. Under the EAR, jurisdiction is established on all items in the United States regardless of origin. *See* generally 15 CFR 734.3(a). Further, Respondent's lack of awareness that the X-Ray Film Processors required an “export control permit” does not insulate the company from liability. IFF is in a highly regulated industry. Those engaged in the industry are “presumed to be aware of, and practitioners in the industry are charged with knowledge of, as well as the responsibility to comply with, the duly promulgated regulations.” In re Aluminum Company of America, 64 Fed. Reg. 42,641, 42,648 (Aug. 5, 1999) (citing *United States* v. *Int'l Minerals and Chemical Corp., 402 U.S. 558, 563 & 565 (1971).* One's compliance with foreign law or regulation does not relieve one of the obligations to comply with the EAR. 15 CFR 734.12. Here, as a freight forwarder, IFF had an obligation, at very least, to inquire whether all applicable export licenses had been secured for the X-Ray Film Processors before entering into the transaction. Upon learning that no license had been secured for the export from the United States to Cuba via Canada IFF should have acted accordingly. Its failure to do either of the above unnecessarily exposed IFF to liability in this case. BIS correctly argues that IFF's knowledge of the violation is irrelevant in determining whether a violation occurred because 15 CFR 764.2(b) is strict liability. Knowledge or intent is simply not a requisite element of proof for an aiding or abetting violation. Doron Totler individually and d/b/a Ram Robotics, Ltd. a/k/a Ram Robotic Automation Mfg. Systems. Ltd., 58 Fed. Reg. 62,095 (Nov. 24, 1993). Thus, liability may be imposed regardless of knowledge or intent. *Iran Air* v. *Kugelman, 996 F.2d 1253, 1258-59 (D.C. Cir. 1992* ); *see* also In re Aluminum Company of America, 64 Fed. Reg. 42,641 (Aug. 5, 1999). In addition, the fact that the X-Ray Film Processors were not exported to Cuba as planned, and that IFF never took actual possession of the items does not serve as a defense in this case. The mere attempt to export or reexport the X-Ray Film Processors, classified as EAR99, from the United States to Cuba, via Canada without a license is sufficient to establish a violation of the EAA and EAR. *See* 15 CFR 764.2(c). Based on the above and viewing the evidence in a light most favorable to Respondent, BIS is entitled to summary decision as a matter of law based on IFF's admission and the documentary evidence supporting the motion for summary decision. Recommended Ultimate Findings of Fact and Conclusions of Law 1. Kabba & Amir Investments, Inc. d.b.a. International Freight Forwarders and the subject matter of this case are properly within the jurisdiction of the Bureau of Industry and Security in accordance with the Export Administration Act of 1979 (50 U.S.C. App. 2401-20 (2000)), and the Export Administration Regulations (15 CFR Parts 730-74 (2000 & 2007)). 2. Under 15 CFR 764.2(c), the attempted export of the Medical X-Ray Film Processors (classified as EAR99) from the United States to Cuba, via Canada constitutes a violation of the EAR. 3. Title 15 CFR 764.2(b) is a strict liability offense. Thus, the Agency need not prove “knowledge” or “intent” to establish that Respondent aided or abetted the attempted export of X-Ray Film Processors (classified as EAR99) from the United States to Cuba, via Canada on or about June 29, 2000. 4. Respondent is not relieved of the obligation to comply with the EAR simply by establishing compliance with Canadian laws and/or regulations. See generally 15 CFR 734.12. 5. IFF's answer to the Charging Letter and subsequent responses constitute admissions thereby eliminating any genuine issues of material fact in this case. 6. BIS has established by documentary evidence and IFF's admissions that there exists no genuine issues of material fact that Respondent violated 15 CFR 764.2(b) by aiding or abetting in the attempted export of X-Ray Film Processors (classified as EAR99) from the United States to Cuba, via Canada on or about June 29, 2000. Accordingly, BIS is entitled to summary decision. Recommended Sanction Section 764.3 of the EAR sets forth the sanctions BIS may seek for violations. The sanctions include:
(i)A monetary penalty;
(ii)suspension from practice before BJS, and
(iii)denial of export privileges. 15 CFR 766.3. A denial order may be considered an appropriate sanction even in matters involving simple negligence or carelessness, if the violation involves “harm to the national security or other essential interests protected by the export control system,” if the violations are of such a nature and extent that a monetary fine alone represents an insufficient penalty. 15 CFR Part 766, Supp. No. 1, III, A. Here, BIS seeks a monetary penalty amount of $6,000 and a denial of export privileges for a period of three
(3)years. BIS also proposes that this denial of export privileges be suspended as long as Respondent pays the monetary penalty within thirty
(30)days from the date of the final Decision and Order, and Respondent does not commit any further violations of the Act or Regulations within three
(3)years from the date of the final Decision and Order. Furthermore, BIS counsel explains that this sanction is reasonable because it falls below the maximum penalty allowed. The governing regulations in this case provide for the available sanction of civil monetary penalties, suspension from practice before BIS and denial of export privileges. See 15 CFR 764.3. Specifically, 15 CFR 764.3(a)(1) states that maximum monetary penalty allowed is set forth in the Export Administration Act of 1979 (EAA). 9 50 U.S.C. App. 2401-20 (2000). “In the event that any provision of the EAR is continued by IEEPA or any other authority, the maximum monetary penalty for each violation shall be proved by such other authority. Id. Since the EAA had lapsed at the time of the violation, the regulations violated by Respondent were in effect under the IEEPA and thus, the maximum monetary penalty is provided for under the IEEPA. The maximum penalty amount according the IEEPA is $250,000.00. At the time the charging letter was filed the IEEPA provided for a maximum penalty amount of $11,000.00 per violation. 15 CFR 6.4, 764.3(a) (2000). On October 15, 2007, Congress increased the maximum civil penalty under the IEEPA to $250,000 or twice the amount of the transaction that is the basis of the violation. Public Law No. 110-96, 121 Stat. 1011 (2007). Congress applied this penalty increase with respect to which enforcement action was pending or commenced on or after the date of the enactment of the EAA. Id. Therefore, since this action was pending on October 16, 2007, the maximum penalty available is $250,000.00 per violation. Although Respondent did not reply to the Agency's Motion for Proposed Sanction, Respondent did assert lack of knowledge in prior filings. I have taken that into consideration and after review of the entire record, including all filings and responses by the parties, I find that the sanction proposed by BIS is appropriate. Accordingly, Respondent shall be sanctioned with a monetary penalty of $6,000.00, and a denial of export privileges for three
(3)years. This three
(3)year suspension shall be suspended for a period of three years as long as Respondent pays the monetary penalty of $6,000.00 within thirty
(30)days of the issuance of the Final Decision and Order and Respondent does not commit any further violations of the Act or Regulations within three
(3)years of the issuance of the Final Decision and Order. 9 From August 21, 1994 through November 12, 2000, the EAA was in lapse. The regulations were continued in effect under the International Emergency Economic Powers Act (IEEPA) pursuant to Executive Order 12924 and several successive Presidential Notices. The EAA was reauthorized on November 13, 2000, by Public Law No. 106-508 (114 Stat. 2360 (2000)). The EAA lapsed again on August 20, 2001 but was continued in effect under the IEEPA pursuant to Executive Order 13222 and several successive Presidential Notices. Recommended Order 10 [REDACTED SECTION] pgs. 16-18. 10 [REDACTED SECTION] pg. 19 partially redacted. PLEASE BE ADVISED that this Recommended Decision and Order is being referred to the Under Secretary for Industry & Security for review and final action for the agency. Pursuant to section 766.22(b), the parties have twelve
(12)days from the date of issuance of this recommended decision and order in which to submit simultaneous responses. Parties thereafter shall have eight
(8)days from receipt of any response(s) in which to submit replies. Any response or reply must be received within the time specified by the Under Secretary. PLEASE BE FURTHER ADVISED that within thirty
(30)days after receipt of this Recommended Decision and Order, the Under Secretary shall issue a written order affirming, modifying, or vacating the Recommended Decision and Order in accordance with 15 CFR 766.22 (2007), a copy of which is supplied in Attachment A. Done and dated April 2, 2008, Norfolk, Virginia. Michael J. Devine, Administrative Law Judge, U.S. Coast Guard. 11 Attachment A—Notice of Review by Under Secretary 15 CFR 766.22 Review by Under Secretary.
(a)* Recommended decision. * For proceedings not involving violations relating to part 760 of the EAR, the administrative law judge shall immediately refer the recommended decision and order to the Under Secretary. Because of the time limits provided under the EAA for review by the Under Secretary, service of the recommended decision and order on the parties, all papers filed by the parties in response, and the final decision of the Under Secretary must be by personal delivery, facsimile, express mail or other overnight carrier. If the Under Secretary cannot act on a recommended decision and order for any reason, the Under Secretary will designate another Department of Commerce official to receive and act on the recommendation. 11 United States Coast Guard Administrative Law Judges perform adjudicatory functions for the Bureau of Industry and Security with approval from the Office of Personnel Management pursuant to a memorandum of understanding between the Coast Guard and the Bureau of Industry and Security.
(b)*Submissions by parties.* Parties shall have 12 days from the date of issuance of the recommended decision and order in which to submit simultaneous responses. Parties thereafter shall have eight days from receipt of any response(s) in which to submit replies. Any response or reply must be received within the time specified by the Under Secretary.
(c)*Final decision.* Within 30 days after receipt of the recommended decision and order, the Under Secretary shall issue a written order affirming, modifying or vacating the recommended decision and order of the administrative law judge. If he/she vacates the recommended decision and order, the Under Secretary may refer the case back to the administrative law judge for further proceedings. Because of the time limits, the Under Secretary's review will ordinarily be limited to the written record for decision, including the transcript of any hearing, and any submissions by the parties concerning the recommended decision.
(d)*Delivery.* The final decision and implementing order shall be served on the parties and will be publicly available in accordance with § 766.20 of this part.
(e)*Appeals.* The charged party may appeal the Under Secretary's written order within 15 days to the United States Court of Appeals for the District of Columbia pursuant to 50 U.S.C. app. 2412(c)(3). [FR Doc. E8-9982 Filed 5-6-08; 8:45 am] BILLING CODE 3510-DT-M DEPARTMENT OF COMMERCE International Trade Administration A-427-801, A-428-801, A-475-801, A-588-804, A-412-801 Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and the United Kingdom: Preliminary Results of Antidumping Duty Administrative Reviews and Intent to Rescind Reviews in Part AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: In response to requests from interested parties, the Department of Commerce (the Department) is conducting administrative reviews of the antidumping duty orders on ball bearings and parts thereof (ball bearings) from France, Germany, Italy, Japan, and the United Kingdom. The reviews cover 27 manufacturers/exporters. The period of review is May 1, 2006, through April 30, 2007. We have preliminarily determined that sales have been made below normal value by companies subject to these reviews. If these preliminary results are adopted in our final results of administrative reviews, we will instruct U.S. Customs and Border Protection
(CBP)to assess antidumping duties on all appropriate entries. We invite interested parties to comment on these preliminary results. Parties who submit comments in these reviews are requested to submit with each argument
(1)a statement of the issue and
(2)a brief summary of the argument. EFFECTIVE DATE: May 7, 2008. FOR FURTHER INFORMATION CONTACT: Edythe Artman or Richard Rimlinger, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14 th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-3931 and
(202)482-4477, respectively. SUPPLEMENTARY INFORMATION: Background On May 15, 1989, the Department published the antidumping duty orders on ball bearings from France, Germany, Italy, Japan, and the United Kingdom in the **Federal Register** (54 FR 20900). On June 29, 2007, in accordance with 19 CFR 351.213(b), we published a notice of initiation of administrative reviews of 163 companies subject to these orders. See *Initiation of Antidumping and Countervailing Duty Administrative Reviews, Request for Revocation in Part and Deferral of Administrative Review* , 72 FR 35690 (June 29, 2007). On January 16, 2008, we extended the due date for the completion of these preliminary results of reviews from January 31, 2008, to April 15, 2008. *See Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and the United Kingdom: Extension of Time Limit for Preliminary Results of Antidumping Duty Administrative Reviews* , 73 FR 2887 (January 16, 2008). On April 15, 2008, we extended the due date for the completion of the results from April 15, 2008, to April 30, 2008. See *Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and the United Kingdom: Extension of Time Limit for Preliminary Results of Antidumping Duty Administrative Reviews* , 73 FR 21311 (April 21, 2008). For these administrative reviews, the period of review covered is May 1, 2006, through April 30, 2007. The Department is conducting these administrative reviews in accordance with section 751 of the Tariff Act of 1930, as amended (the Act). Scope of Orders The products covered by the orders are ball bearings (other than tapered roller bearings) and parts thereof. These products include all antifriction bearings that employ balls as the rolling element. Imports of these products are classified under the following categories: antifriction balls, ball bearings with integral shafts, ball bearings (including radial ball bearings) and parts thereof, and housed or mounted ball bearing units and parts thereof. Imports of these products are classified under the following *Harmonized Tariff Schedules*
(HTS)subheadings: 3926.90.45, 4016.93.10, 4016.93.50, 6909.19.5010, 8431.20.00, 8431.39.0010, 8482.10.10, 8482.10.50, 8482.80.00, 8482.91.00, 8482.99.05, 8482.99.35, 8482.99.2580, 8482.99.6595, 8483.20.40, 8483.20.80, 8483.30.40, 8483.30.80, 8483.50.90, 8483.90.20, 8483.90.30, 8483.90.70, 8708.50.50, 8708.60.50, 8708.60.80, 8708.93.30, 8708.93.6000, 8708.99.06, 8708.99.3100, 8708.99.4000, 8708.99.4960, 8708.99.58, 8708.99.8015, 8708.99.8080, 8803.10.00, 8803.20.00, 8803.30.00, 8803.90.30, and 8803.90.90. As a result of recent changes to the HTS, effective February 2, 2007, the subject merchandise is also classifiable under the following additional HTS item numbers: 8708.30.50.90, 8708.40.75.00, 8708.50.79.00, 8708.50.8900, 8708.50.91.50, 8708.50.99.00, 8708.70.6060, 8708.80.65.90, 8708.93.75.00, 8708.94.75, 8708.95.20.00, 8708.99.55.00, 8708.99.68, 8708.99.81.80. Although the HTS item numbers above are provided for convenience and customs purposes, the written descriptions of the scope of these orders remain dispositive. The size or precision grade of a bearing does not influence whether the bearing is covered by one of the orders. These orders cover all the subject bearings and parts thereof (inner race, outer race, cage, rollers, balls, seals, shields, etc.) outlined above with certain limitations. With regard to finished parts, all such parts are included in the scope of these orders. For unfinished parts, such parts are included if they have been heat-treated or if heat treatment is not required to be performed on the part. Thus, the only unfinished parts that are not covered by these orders are those that will be subject to heat treatment after importation. The ultimate application of a bearing also does not influence whether the bearing is covered by the orders. Bearings designed for highly specialized applications are not excluded. Any of the subject bearings, regardless of whether they may ultimately be utilized in aircraft, automobiles, or other equipment, are within the scope of these orders. For a listing of scope determinations which pertain to the orders, see the “Memorandum to Laurie Parkhill” regarding scope determinations, dated April 30, 2008, which is on file in the Central Records Unit
(CRU)of the main Commerce building, room B-099, in the General Issues record (A-100-001) for the 2006-2007 reviews. Intent to Rescind Reviews in Part We received a letter, dated June 21, 2007, from a company, Essex Nexans Europe SAS, on behalf its subsidiaries Essex Nexans SAS, Essex Nexans L&K GmbH, and Essex International Ltd., in which it stated that Essex Nexans and its subsidiaries did not manufacture, sell, or ship ball bearings of French, German, Italian, or U.K. origin to the United States during the period of review. We also received letters of no shipments from IKN GmbH and WWC Service-Center GmbH concerning ball bearings from France, Germany, Italy, or the United Kingdom. We have received no comments on the submissions from the three companies. Because we preliminarily find that Essex Nexans Europe SAS and its subsidiaries, IKN GmbH, and WWC Service-Center GmbH had no shipments of subject merchandise during the period of review, we intend to rescind the administrative reviews with respect to these companies. If we continue to find at the time of our final results that they had no shipments of ball bearings from France, Germany, Italy, or the United Kingdom, we will rescind the reviews of these companies. Selection of Respondents Due to the large number of companies in the reviews and the resulting administrative burden to review each company for which a request had been made and not withdrawn, the Department exercised its authority to limit the number of respondents selected for the reviews. Where it is not practicable to examine all known exporters/producers of subject merchandise because of the large number of such companies, section 777A(c)(2) of the Act, allows the Department to limit its examination to either a sample of exporters, producers, or types of products that is statistically valid, based on the information available at the time of selection, or exporters and producers accounting for the largest volume of subject merchandise from the exporting country that can be reasonably examined. Accordingly, in June 2007 we requested information concerning the quantity and value of sales to the United States from the 163 exporters/producers listed in the initiation notice. We received responses from most of the exporters/producers in June and July of 2007. A number of the companies indicated that they had no shipments of the subject merchandise to the United States during the period of review. A number of the companies indicated that they were affiliated with other companies for which we had initiated administrative reviews, and these companies and their affiliates reported their sales to the United States collectively. Some of the companies withdrew their requests for review prior to our selection of respondents for individual examination. Finally, three companies, Christian Feddersen GmbH & Co. KG, Lentz & Schmahl GmbH, and Societe Nexans, for which we initiated reviews subject to the orders on France, Germany, Italy, and the United Kingdom, did not respond to our questionnaire. Based on our analysis of the responses and our available resources, we chose to examine the sales of the following companies: France: * SKF France S.A. and SFK Aerospace France S.A.S. (SKF France) Germany: * Gebrüder Reinfurt GmbH & Co., KG
(GRW)* SKF GmbH (SKF Germany) Italy: * SKF RIV-SKF Officine di Villas Perosa S.p.A.; SKF Industrie S.p.A.; RFT S.p.A.; OMVP S.p.A. (collectively SKF Italy) Japan: * JTEKT Corporation (formerly known as Koyo Seiko Co., Ltd.) (JTEKT) * NTN Corporation
(NTN)United Kingdom: * The Barden Corporation
(UK)Limited; Schaeffler
(UK)Ltd. (formerly known as the Barden Corporation
(UK)Ltd.; FAG
(UK)Ltd. (collectively Barden/FAG)) (collectively Barden/Schaeffler UK) See order-specific memoranda to Laurie Parkhill regarding respondent selection, dated August 14, 2007, for the detailed analysis of the selection process for each country-specific review. 1 1 Subsequent to our selection of respondents, two of the U.K. companies, Molins PLC and NSK Bearings Europe, and one of the Japanese companies, NSK Ltd., withdrew their requests for a review and we rescinded the reviews of these companies. See 72 FR 64577 (November 16, 2007). For the responding companies which remain under review and which we did not select for individual examination, we have either calculated a simple average of the weighted-average margins of the two selected respondents in a review (Japan) or assigned the weighted-average margin of a sole selected respondent in a review (United Kingdom). Thus, based on our preliminary margin calculations, we have calculated a margin of 10.30 percent for non-selected respondents from Japan. See Memorandum to Laurie Parkhill regarding the calculation of a simple-average margin for the Japan proceeding, dated April 30, 2008. For the U.K. review, while we have applied, for these preliminary results, the rate of 0.28 percent calculated for the sole respondent selected for individual examination, Barden/Schaeffler UK, to the company not individually examined, Rolls Royce, we invite comments from interested parties regarding the methodology to be used to determine the rate for the non-examined company. Specifically, we invite interested parties to comment on the rate to be applied to the non-examined company, considering, but not limited to, the following factors:
(a)the Department has limited its examination of respondents pursuant to section 777A(c)(2)(B) of the Act;
(b)section 735(c)(5) of the Act provides that, with some exceptions, the all-others rate in an investigation is to be calculated excluding any margins that are zero, *de minimis* , or based entirely on facts available;
(c)the *Statement of Administrative Action* states that, with respect to the calculation of the all-others rate in such cases, “the expected method will be to weight-average the zero and *de minimis* margins and margins determined pursuant to the facts available, provided that volume data is available. However, if this method is not feasible, or if it results in an average that would not be reasonably reflective of potential dumping margins for non-investigated exporters or producers, Commerce may use other reasonable methods.” See *Statement of Administrative Action* accompanying the *Uruguay Round Agreements Act* , H.R. Doc. No. 103-316, vol.1
(1994)at 870 ( *SAA* ) at 873. Verification As provided in section 782(i) of the Act, we have verified information provided by Barden/Schaeffler UK in the administrative review of the order on ball bearings from the United Kingdom using standard verification procedures, including the examination of relevant sales and financial records and the selection and review of original documentation containing relevant information. Our verification results are outlined in the public version of our Barden/Schaeffler UK verification report, which is on file in the CRU, room 1117 of the main Department building. Use of Facts Otherwise Available For the reasons discussed below, we determine that the use of adverse facts available
(AFA)is appropriate for the preliminary results of reviews with respect to four companies. A. Use of Facts Available Section 776(a)(2) of the Act provides that, if an interested party withholds information requested by the administering authority, fails to provide such information by the deadlines for submission of the information and in the form or manner requested, subject to subsections (c)(1) and
(e)of section 782, significantly impedes a proceeding under this title, or provides such information but the information cannot be verified as provided in 782(i), the administering authority shall use, subject to section 782(d) of the Act, facts otherwise available in reaching the applicable determination. Section 782(d) of the Act provides that, if the administering authority determines that a response to a request for information does not comply with the request, the administering authority shall promptly inform the responding party and, to the extent practicable, provide an opportunity to remedy the deficient submission. If the party fails to remedy the deficiency within the applicable time limits, the Department may, subject to section 782(e) of the Act, disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all the applicable requirements established by the administering authority” if the information is timely, can be verified, and is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information, if it can do so without undue difficulties. As discussed above, in June 2007, we requested information concerning the quantity and value of sales to the United States from each of the exporters/producers listed in the initiation notice for the current reviews. Three companies, Christian Feddersen GmbH & Co. KG, Lentz & Schmahl GmbH, and Societe Nexans, did not respond to our request concerning their sales or exports of ball bearings from France, Italy, Germany and the United Kingdom. Because these companies did not respond to our request, we could neither consider them in our selection of respondents for individual examination nor complete any administrative reviews of the companies. Because these companies have failed to provide the information requested and thus have significantly impeded the respective proceedings, we find that we must base their margins on the use of facts otherwise available. See section 776(a) of the Act. Additionally, we find that it is appropriate to use facts otherwise available for certain U.S. sales made by SKF Germany for which SKF Germany was not the producer and for which the producer failed to provide cost-of-production
(COP)information by the deadline for submission of the information. The Department's practice is to use the actual production costs of unaffiliated suppliers in lieu of the exporter's acquisition costs to calculate COP and constructed value and is extending this practice, where appropriate, to the reviews of the orders on ball bearings. See *Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews and Rescission of Review in Part* , 72 FR 58053 (October 12, 2007) (AFBs 17), and accompanying Decision Memorandum, at Comment 17. See also *Notice of Final Results of Antidumping Duty Administrative Review, and Final Determination to Revoke the Order in Part: Individually Quick Frozen Red Raspberries from Chile* , 72 FR 70295 (December 11, 2007) ( *Final-Raspberries from Chile* ). SKF Germany's supplier is an interested party because it is a producer of the subject merchandise. See sections 771(9)(A) and 771(28) of the Act. Further, section 771(28) of the Act states that, “{f}or purposes of section 773 of the Act, the term exporter or producer' includes both the exporter of the subject merchandise and the producer of the same subject merchandise to the extent necessary to accurately calculate the total amount incurred and realized for costs, expenses, and profits in connection with production and sales of that merchandise.” *Id* . In addition, the *SAA* at 835 explains that “the purpose of section 771(28) . . . is to clarify that where different firms perform the production and selling functions, Commerce may include the costs, expenses, and profits of each firm in calculating cost of production and constructed value.” *Id* . On November 6, 2007, we determined that SKF Germany should report the actual COP for bearings it purchased from its largest supplier. 2 Accordingly, on November 7, 2007, we requested that SKF Germany coordinate with its largest supplier and report the actual COP data for those bearings SKF Germany purchased during the period of review. On November 14, 2007, SKF Germany stated that it had conferred with its supplier and that, for reasons SKF designated as proprietary, its supplier would not be able to provide any cost data for the period of review. On November 28, 2007, we sent a letter to SKF Germany's supplier requesting that it coordinate with SKF Germany and report the actual COP data for those bearings purchased by SKF Germany during the period of review. The response deadline was January 3, 2008. We received no response by the deadline and no extension of the deadline was requested by any party. On January 8, 2008, we received an untimely submission from the supplier which did not include the actual COP for the period of review. On January 31, 2008, consistent with 19 CFR 351.302(d) and 19 CFR 351.104(a)(2), we rejected the supplier's submission as untimely and informed it that we would not consider the information in our final results. On February 1, 2008, the supplier submitted a letter in which, although it acknowledged that it “neglected to submit the requested data by the due date or request an extension to do so,” it requested that we reconsider our decision for rejecting its submission. See Letter to Laurie Parkhill, dated February 1, 2008. On March 3, 2008, we responded to the supplier, reaffirming our decision to reject its COP data as untimely. 2 See Memorandum to Laurie Parkhill regarding the calculation of the cost of production and constructed value for merchandise produced by unaffiliated suppliers, dated November 6, 2007. In accordance with section 776(a)(2)(B) of the Act, if the Department finds that an interested party “fails to provide such information by the deadlines for submission of the information or in the form and manner requested, subject to subsections (c)(1) and
(e)of section 782, the administering authority and the Commission shall, subject to section 782(d), use the facts otherwise available in reaching the applicable determination under this title.” Section 782(c)(1) of the Act is not applicable because SKF Germany's supplier did not notify the Department that it would be unable to provide the COP information as requested in our November 28, 2007, letter. Further, sections 782(e) and
(d)of the Act are not applicable because the requested information was not submitted by the established deadline. Therefore, pursuant to section 776(a)(2)(B) of the Act, because SKF Germany's supplier did not provide the relevant COP information by the established deadline, we find that use the facts otherwise available is warranted. In addition, in accordance with section 776(b) of the Act, if the Department finds that “an interested party failed to cooperate by not acting to the best of its ability to comply with a request for information,” an adverse inference may be used in determining the facts otherwise available. Because SKF Germany's supplier, which, as a producer of subject merchandise and an interested party in this proceeding, did not act to the best of its ability by failing to provide the COP information by the deadline, we preliminarily find that it is appropriate to make an adverse inference pursuant to section 776(b) of the Act with respect to the bearings that SKF Germany purchased from that supplier and sold in the United States. Thus, for the sales of those bearings, we have applied an AFA rate in place of rates for those sales that, if we had the cost information, would be based on the normal value of the bearings. B. Application of Adverse Inferences for Facts Available In applying the facts otherwise available, section 776(b) of the Act provides that, if the administering authority finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority, in reaching the applicable determination under this title, the administering authority may use an inference adverse to the interests of that party in selecting from among the facts otherwise available. See, *e.g.* , *Final-Raspberries from Chile* , 72 FR at 70297; *Notice of Preliminary Determination of Sales at Less Than Fair Value, and Postponement of Final Determination: Certain Circular Welded Carbon-Quality Line Pipe From Mexico* , 69 FR 59892, 59896 (October 6, 2004). Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” See *Notice of Preliminary Results of Antidumping Duty Administrative Review, Notice of Partial Rescission of Antidumping Duty Administrative Review, Notice of Intent to Revoke in Part: Certain Individually Quick Frozen Red Raspberries from Chile* , 72 FR 44112 (August 7, 2007) ( *Prelim- Raspberries from Chile* ) ( *unchanged in Final-Raspberries from Chile* , 72 FR at 70297). See also *SAA* at 870. Further, “affirmative evidence of bad faith on the part of a respondent is not required before the Department may make an adverse inference.” See *Antidumping Duties; Countervailing Duties* , 62 FR 27296, 27340 (May 19, 1997). See also *Nippon Steel Corp. v. United States* , 337 F.3d 1373, 1380-84 (CAFC 2003). Because the non-responding companies Christian Feddersen GmbH & Co. KG, Lentz & Schmahl GmbH, and Societe Nexans - could have provided data concerning the quantity and value of their sales of subject merchandise to the United States during the period of review but did not do so, we determine that they have failed to cooperate by not acting to the best of their ability. See *Final Results of Antidumping Duty Administrative Reviews, Rescission of Administrative Reviews in Part, and Determination to Revoke Order in Part: Antifriction Bearings and Parts Thereof From France, Germany, Italy, Japan, Singapore, and the United Kingdom* , 69 FR 55574 (September 15, 2004) ( *AFBs 14* ). We informed them in our requests for information that, if they did not respond, we may proceed on the basis of the use of the facts available. Therefore, we conclude that the use of an adverse inference is warranted in applying the use of facts otherwise available to these companies. Furthermore, with respect to SKF Germany and its largest supplier, although we provided SKF Germany's supplier with notice informing it of the consequences of its failure to respond adequately to our request for its COP data (see our November 28, 2007, letter), it did not provide us with the relevant cost data in a timely manner. This constitutes a failure of the supplier to cooperate to the best of its ability to comply with a request for information by the Department within the meaning of section 776(b) of the Act. Further, because we rejected the supplier's submission as untimely, there is no information on the record for us to consider and, therefore, section 782(e) of the Act is not applicable. Based on the above, we have preliminarily determined that SKF Germany's largest supplier, as a producer of subject merchandise, failed to cooperate to the best of its ability and, therefore, in selecting from among the facts otherwise available, an adverse inference is warranted. See *Prelim-Raspberries from Chile* , 72 FR 44114 (unchanged in *Final-Raspberries from Chile* , 72 FR at 70297). See also *Notice of Preliminary Results of Antidumping Duty Administrative Review, Notice of Intent to Revoke in Part: Individually Quick Frozen Red Raspberries from Chile* , 71 FR 45000 (August 8, 2006) (unchanged in *Notice of Final Results of Antidumping Duty Administrative Review, and Final Determination to Revoke the Order In Part: Individually Quick Frozen Red Raspberries from Chile* (72 FR 6524, February 12, 2007)). C. Selection and Corroboration of Information Used as Facts Available As facts available with an adverse inference, we have selected the rates of 66.42 percent for France, 70.41 percent for Germany, 69.99 percent for Italy, and 60.15 percent for the United Kingdom. Section 776(c) of the Act provides that the Department shall corroborate, to the extent practicable, secondary information used for facts available by reviewing independent sources reasonably at its disposal. Information from a prior segment of the proceeding constitutes secondary information. See *SAA* at 870. The word “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value. *Id* . To corroborate secondary information, the Department will examine, to the extent practicable, the reliability and relevance of the information used. Unlike other types of information such as input costs or selling expenses, however, there are no independent sources for calculated dumping margins. The only source for margins is administrative determinations. Thus, with respect to an administrative review, if the Department chooses as facts available a calculated dumping margin from a prior segment of the proceeding, it is not necessary to question the reliability of the margin for that time period. *AFBs 14* , 69 FR at 55577. With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a margin not relevant. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. See *Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty Administrative Review* , 61 FR 6812, 6814 (February 22, 1996), where the Department disregarded the highest dumping margin as best information available because the margin was based on another company's uncharacteristic business expense resulting in an unusually high margin. We find that the rates we are using for these preliminary results have probative value. For France and Italy, we corroborated the highest rates calculated in the respective less-than-fair-value investigations. As there is no information on the record of these reviews that demonstrates that the rates selected are not appropriate AFA rates for the non-responsive firms, we preliminarily determine that the rates of 66.42 percent and 69.99 percent for France and Italy, respectively, have probative value and, therefore, are appropriate rates for use as AFA. For the United Kingdom, while the highest rate calculated in the proceeding was 61.14 percent, in this review we have no transaction-specific margins with which to corroborate this rate. We can corroborate 58.20 percent from the 1996/1997 review of the order ( *Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom; Final Results of Antidumping Duty Administrative Reviews* , 63 FR 33320, (June 18, 1998)) because it fell within the range of margins we calculated for this administrative review and, thus, we have selected this rate as the AFA rate for the United Kingdom. For Germany, the selected AFA rate of 70.41 percent is the highest rate ever calculated for a company in any segment of this proceeding. 3 Because the producer of certain merchandise SKF Germany sold to the United States did not provide us with the actual COP data for this review, we examined individual transactions made by SKF Germany of merchandise it purchased from the same supplier in the immediately preceding (2005-06) administrative review and the margins on those transactions in order to determine whether the rate of 70.41 percent was probative. See *Preliminary Results of Antidumping Duty Administrative Review: Stainless Steel Wire Rod from the Republic of Korea* , 72 FR 32074 (June 11, 2007) (unchanged in *Final Results of Antidumping Duty Administrative Review: Stainless Steel Wire Rod from the Republic of Korea* , 72 FR 46035 (August 16, 2007)). We found a number of sales with dumping margins falling either above or below the rate of 70.41 percent. Therefore, we preliminarily find that this rate is corroborated to the extent practicable. See *Ta Chen Stainless Steel Pipe, Inc. vs. United States* , 298 F.3d 1330, 1340 (CAFC 2002) (“Because Commerce selected a dumping margin within the range of Ta Chen's actual sales data, we cannot conclude that Commerce ‘overreached reality’.”). 3 The rate of 70.41 percent is the weighted-average margin we calculated for FAG during the original investigation. See *Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings and Parts Thereof From the Federal Republic of Germany* , 54 FR 20900 (May 15, 1989). For more detail concerning the selection of an AFA rate, see the country-specific Memoranda to Laurie Parkhill regarding corroboration of the respective AFA rates, dated April 30, 2008. The SKF Group's Acquisition of Bearing Manufacturers On July 4, 2006, the SKF Group 4 acquired Somecat S.p.A. (Somecat) in Italy and SNFA S.A.S.U.
(SNFA)in France. Both Somecat and SNFA had been revoked previously from the antidumping duty orders covering ball bearings from Italy and France, respectively. See *Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, et al.; Final Results of Antidumping Duty Administrative Reviews and Revocation of Orders in Part* , 65 FR 49219, 49221 (August 11, 2000). During the course of these administrative reviews, we have reviewed the changes that have transpired since the acquisition of these companies during the period of review by the SKF Group with respect to ball bearings produced in Italy by Somecat and SKF Italy and ball bearings produced in France by SNFA and SKF France for purposes of determining whether it is appropriate to collapse these companies in our reviews of the respective antidumping duty orders covering this merchandise. Pursuant to 19 CFR 351.401(f)(1), we have preliminarily determined that SKF France and SNFA should not be collapsed for purposes of our antidumping analysis in this review; we have also preliminarily determined that Somecat and SKF Italy should be collapsed for purposes of our antidumping analysis in this review. Due to the business-proprietary nature of these decisions, details are provided in country-specific Memoranda to Laurie Parkhill regarding the collapsing of entities, dated April 30, 2008. 4 SKF Italy and SKF France are part of the SKF Group. The Department normally requests sales and cost data from the entities that the Department determines to collapse in a review. In this case, we have insufficient time to request, obtain, and analyze the necessary sales and cost data to collapse Somecat and SKF Italy fully at this stage of the administrative review. Therefore, we have not asked Somecat and SKF Italy to provide the necessary sales and cost data for this review but we expect to request Somecat and SKF Italy to provide the necessary data for both companies in the next administrative review. Effective on the publication date of these preliminary results, we will instruct CBP to suspend liquidation and collect a cash deposit of estimated antidumping duties on entries of merchandise produced or exported by Somecat at the weighted-average margin we have calculated for the preliminary results of review for SKF Italy. Export Price and Constructed Export Price For the price to the United States, we used export price
(EP)or constructed export price
(CEP)as defined in sections 772(a) and
(b)of the Act, as appropriate. Due to the extremely large volume of U.S. transactions that occurred during the period of review and the resulting administrative burden involved in calculating individual margins for all of these transactions, we sampled CEP sales in accordance with section 777A of the Act. When a firm made more than 10,000 CEP sales transactions to the United States of merchandise subject to a particular order, we reviewed CEP sales that occurred during sample weeks. We selected one week from each two-month period in the review period, for a total of six weeks, and analyzed each transaction made in those six weeks. The sample weeks are as follows: May 14, 2006 - May 20, 2006; July 2, 2006 - July 8, 2006; October 22, 2006 - October 28, 2006; December 10, 2006 - December 16, 2006; January 21, 2007 - January 27, 2007; April 1, 2006 - April 7, 2006. We reviewed all EP sales transactions the respondents made during the period of review. We calculated EP and CEP based on the packed F.O.B., C.I.F., or delivered price to unaffiliated purchasers in, or for exportation to, the United States. We made deductions, as appropriate, for discounts and rebates. We also made deductions for any movement expenses in accordance with section 772(c)(2)(A) of the Act. Consistent with section 772(d)(1) of the Act and the *SAA* at 823-824, we calculated the CEP by deducting selling expenses associated with economic activities occurring in the United States, which includes commissions, direct selling expenses, and U.S. repacking expenses. In accordance with section 772(d)(1) of the Act, we also deducted those indirect selling expenses associated with economic activities occurring in the United States and the profit allocated to expenses deducted under section 772(d)(1) in accordance with sections 772(d)(3) and 772(f) of the Act. In accordance with section 772(f) of the Act, we computed profit based on the total revenues realized on sales in both the U.S. and home markets, less all expenses associated with those sales. We then allocated profit to expenses incurred with respect to U.S. economic activity based on the ratio of total U.S. expenses to total expenses for both the U.S. and home markets. Finally, we made an adjustment for profit allocated to these expenses in accordance with section 772(d)(3) of the Act. With respect to subject merchandise to which value was added in the United States prior to sale to unaffiliated U.S. customers, *e.g.* , parts of bearings that were imported by U.S. affiliates of foreign exporters and then further processed into other products which were then sold to unaffiliated parties, we determined that the special rule for merchandise with value added after importation under section 772(e) of the Act applied to all firms that added value in the United States. Section 772(e) of the Act provides that, when the subject merchandise is imported by an affiliated person and the value added in the United States by the affiliated person is likely to exceed substantially the value of the subject merchandise, we shall determine the CEP for such merchandise using the price of identical or other subject merchandise sold by the exporter or producer to an unaffiliated customer if there is a sufficient quantity of sales to provide a reasonable basis for comparison and we determine that the use of such sales is appropriate. If there is not a sufficient quantity of such sales or if we determine that using the price of identical or other subject merchandise is not appropriate, we may use any other reasonable basis to determine the CEP. To determine whether the value added is likely to exceed substantially the value of the subject merchandise, we estimated the value added based on the difference between the averages of the prices charged to the first unaffiliated purchaser for the merchandise as sold in the United States and the averages of the prices paid for the subject merchandise by the affiliated purchaser. Based on this analysis, we determined that the estimated value added in the United States by the further-manufacturing firms accounted for at least 65 percent of the price charged to the first unaffiliated customer for the merchandise as sold in the United States. See 19 CFR 351.402(c) for an explanation of our practice on this issue. Therefore, we preliminarily determine that the value added is likely to exceed substantially the value of the subject merchandise for SKF France, SKF Germany, SKF Italy, JTEKT, NTN, and Barden/Schaeffler UK. Also, for these firms, we determine that there was a sufficient quantity of sales remaining to provide a reasonable basis for comparison and that the use of these sales is appropriate. For analysis of the further-manufactured sales, see the company-specific analysis memoranda, dated April 30, 2008. Accordingly, for purposes of determining dumping margins for the sales subject to the special rule, we have used the weighted-average dumping margins calculated on sales of identical or other subject merchandise sold to unaffiliated persons. For the calculation of NTN's dumping margin, we did not include any zero-priced transactions in our analysis and there was no other record evidence indicating that NTN received consideration for these transactions; we did include in our analysis the so-called “sample” sales where NTN did receive compensation. In addition, based on NTN's response to our supplemental questionnaire, we calculated a direct selling expense for NTN's EP sales, attributable to the provision of technical support and other selling-support functions to NTN's EP customer by NTN's U.S. affiliate. Furthermore, we accounted for NTN's re-calculation of its re-packing expense with respect to its reported CEP sales to capture differences in expenses associated with packing materials, packing labor, and packing labor overhead inherent in packing requirements with respect to different customer categories. We also accounted for NTN's re-calculation of its inventory carrying costs incurred in Japan for NTN's EP and CEP sales that it submitted in its response to our supplemental questionnaire. Pursuant to a supplemental questionnaire, NTN provided us with factors that we used to recalculate the EP expenses, repacking, and inventory carrying costs. There were no other claimed or allowed adjustments to EP or CEP sales by other respondents. Home-Market Sales Based on a comparison of the aggregate quantity of home-market and U.S. sales and absent any information that a particular market situation in the exporting country did not permit a proper comparison, we determined that the quantity of foreign like product sold by all respondents in the exporting country was sufficient to permit a proper comparison with the sales of the subject merchandise to the United States, pursuant to section 773(a)(1) of the Act. Each company's quantity of sales in its home market was greater than five percent of its sales to the U.S. market. Therefore, in accordance with section 773(a)(1)(B)(i) of the Act, we based normal value on the prices at which the foreign like product was first sold for consumption in the exporting country in the usual commercial quantities and in the ordinary course of trade and, to the extent practicable, at the same level of trade as the EP or CEP sales. Due to the extremely large number of home-market transactions that occurred during the period of review and the resulting administrative burden involved in examining all of these transactions, we sampled sales to calculate normal value in accordance with section 777A of the Act. When a firm had more than 10,000 home-market sales transactions on a country-specific basis, we used sales in sample months that corresponded to the sample weeks which we selected for U.S. CEP sales, sales in a month prior to the period of review, and sales in the month following the period of review. The sample months were February, May, July, October, and December 2006 and January, April, and May 2007. The Department may calculate normal value based on a sale to an affiliated party only if it is satisfied that the price to the affiliated party is comparable to the price at which sales are made to parties not affiliated with the exporter or producer, *i.e.* , sales at arm's-length prices. See 19 CFR 351.403(c). We excluded sales to affiliated customers for consumption in the home market that we determined not to be arm's-length prices from our analysis. To test whether these sales were made at arm's-length prices, we compared the prices of sales of comparable merchandise to affiliated and unaffiliated customers, net of all rebates, movement charges, direct selling expenses, and packing. Pursuant to 19 CFR 351.403(c) and in accordance with our practice, when the prices charged to an affiliated party were, on average, between 98 and 102 percent of the prices charged to unaffiliated parties for merchandise comparable to that sold to the affiliated party, we determined that the sales to the affiliated party were at arm's-length prices. *See Antidumping Proceedings: Affiliated Party Sales in the Ordinary Course of Trade* , 67 FR 69186 (November 15, 2002). We included in our calculation of normal value those sales to affiliated parties that were made at arm's-length prices. Cost of Production In accordance with section 773(b) of the Act, we disregarded below-cost sales in the 2005-2006 reviews with respect to ball bearings produced in the respective countries and sold by the following firms: SKF France; SKF Germany, GRW (Germany); SKF Italy; JTEKT, NTN (Japan); Barden/Schaeffler UK. See *AFBs 17* , 72 FR at 58054. These reviews represent the last completed segment for each respondent selected for individual examination. Therefore, for the instant review, we have reasonable grounds to believe or suspect that sales of the foreign like product under consideration for the determination of normal value in these reviews may have been made at prices below the COP, as provided by section 773(b)(2)(A)(ii) of the Act. Pursuant to section 773(b)(1) of the Act, we conducted COP investigations of sales by these firms in the respective home markets. In accordance with section 773(b)(3) of the Act, we calculated the COP based on the sum of the costs of materials and fabrication employed in producing the foreign like product, the selling, general, and administrative (SG&A) expenses, and all costs and expenses incidental to packing the merchandise. In our COP analysis, we used the home-market sales and COP information provided by each respondent in its questionnaire responses. After calculating the COP and in accordance with section 773(b)(1) of the Act, we tested whether home-market sales of the foreign like product were made at prices below the COP within an extended period of time in substantial quantities and whether such prices permitted the recovery of all costs within a reasonable period of time. We compared model-specific COPs to the reported home-market prices less any applicable movement charges, discounts, and rebates. Pursuant to section 773(b)(2)(C) of the Act, when less than 20 percent of a respondent's sales of a given product were at prices less than the COP, we did not disregard any below-cost sales of that product because the below-cost sales were not made in substantial quantities within an extended period of time. When 20 percent or more of a respondent's sales of a given product during the period of review were at prices less than the COP, we disregarded the below-cost sales because they were made in substantial quantities within an extended period of time pursuant to sections 773(b)(2)(B) and
(C)of the Act and because, based on comparisons of prices to weighted-average COPs for the period of review, we determined that these sales were at prices which would not permit recovery of all costs within a reasonable period of time in accordance with section 773(b)(2)(D) of the Act. See the analysis memoranda for SKF France, SKF Germany, GRW, SKF Italy, JTEKT, NTN, and Barden/Schaeffler UK, dated April 30, 2008. Based on this test, we disregarded below-cost sales with respect to SKF France, SKF Germany, GRW, SKF Italy, JTEKT, NTN, and Barden/Schaeffler UK. Model-Match Methodology For all respondents, we compared U.S. sales with sales of the foreign like product in the home market. Specifically, in making our comparisons, we used the following methodology. If an identical home-market model was reported, we made comparisons to weighted-average home-market prices that were based on all sales which passed the COP test of the identical product during the relevant month. We calculated the weighted-average home-market prices on a level of trade-specific basis. If there were no contemporaneous sales of an identical model, we identified the most similar home-market model. To determine the most similar model, we limited our examination to models sold in the home market that had the same bearing design, load direction, number of rows, and precision grade. Next, we calculated the sum of the deviations (expressed as a percentage of the value of the U.S. characteristics) of the inner diameter, outer diameter, width, and load rating for each potential home-market match and selected the bearing with the smallest sum of the deviations. If two or more bearings had the same sum of the deviations, we selected the model that was sold at the same level of trade as the U.S. sale and was the closest contemporaneous sale to the U.S. sale. If two or more models were sold at the same level of trade and were sold equally contemporaneously, we selected the model that had the smallest difference-in-merchandise adjustment. Finally, if no bearing sold in the home market had a sum of the deviations that was less than 40 percent, we concluded that no appropriate comparison existed in the home market and we used the constructed value of the U.S. model as normal value. For a full discussion of the model-match methodology for these reviews, see *Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews* , 70 FR 54711 (September 16, 2005) ( *AFBs 15* ), and the accompanying Issues and Decision Memorandum at Comments 2, 3, and 5 and *Antifriction Bearings and Parts Thereof from France, et al.: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Reviews* , 70 FR 25538, 25542 (May 13, 2005). Normal Value Home-market prices were based on the packed, ex-factory, or delivered prices to affiliated or unaffiliated purchasers. When applicable, we made adjustments for differences in packing and for movement expenses in accordance with sections 773(a)(6)(A) and
(B)of the Act. We also made adjustments for differences in cost attributable to differences in physical characteristics of the merchandise pursuant to section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411 and for differences in circumstances of sale in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410. For comparisons to EP, we made circumstance-of-sale adjustments by deducting home-market direct selling expenses from, and adding U.S. direct selling expenses to, normal value. For comparisons to CEP, we made circumstance-of-sale adjustments by deducting home-market direct selling expenses from normal value. We also made adjustments, when applicable, for home-market indirect selling expenses to offset U.S. commissions in EP and CEP calculations. For NTN's sales of samples in the home market, we have determined that these sales were made outside the ordinary course of trade and have excluded them from our calculation of normal value. Furthermore, we accounted for NTN's re-calculation of its packing expense for reported home-market sales to capture differences in expenses associated with packing materials inherent in packing requirements with respect to different customer categories. In addition, we accounted for NTN's re-calculation of its inventory carrying costs incurred in the home market for its home-market sales that it submitted in its response to our supplemental questionnaire. For JTEKT, consistent with prior reviews, we denied certain negative home-market billing adjustments that JTEKT granted on a model-specific basis but reported on a broad customer-specific basis. See, *e.g., AFBs 14* , and the accompanying Issues and Decision Memorandum at Comment 21, and *Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom: Preliminary Results of Antidumping Duty Administrative Reviews and Intent to Rescind Review in Part* , 72 FR 31271 (June 6, 2007) ( *Preliminary AFBs 17* ) at 72 FR 31275, unchanged in *AFBs 17* . In the two most recent administrative reviews of JTEKT, we examined the relationship between JTEKT and one of its affiliated home-market firms and determined that it was appropriate to collapse the two companies as one entity. See, *e.g.* , *AFBs 16* at Comment 18 and *Preliminary AFBs 17* , 72 FR at 31275, unchanged in *AFBs 17* . Upon examining the relationship between the two companies in this review, we have determined that it is appropriate to continue to collapse these two companies. See the preliminary analysis memorandum for JTEKT, dated April 30, 2008, for further details that include reference to JTEKT's business-proprietary information. Finally, with respect to JTEKT, consistent with our determination in *AFBs 17* (see the final analysis memorandum for JTEKT, dated October 4, 2007, at page 2), we revised its calculation of inventory carrying costs
(ICCs)incurred in the home market so that the ICCs for home-market sales are calculated on the same basis as the ICCs for U.S. sales. See the preliminary analysis memorandum for JTEKT, dated April 30, 2008, for details of this recalculation. In accordance with section 773(a)(1)(B)(i) of the Act, we based normal value, to the extent practicable, on sales at the same level of trade as the EP or CEP. If normal value was calculated at a different level of trade, we made an adjustment, if appropriate and if possible, in accordance with section 773(a)(7)(A) of the Act. See the “Level of Trade” section below. Constructed Value In accordance with section 773(a)(4) of the Act, we used constructed value as the basis for normal value when there were no usable sales of the foreign like product in the comparison market. We calculated constructed value in accordance with section 773(e) of the Act. We included the cost of materials and fabrication, SG&A expenses, U.S. packing expenses, and profit in the calculation of constructed value. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expenses and profit on the amounts incurred and realized by each respondent in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the home market. When appropriate, we made adjustments to constructed value in accordance with section 773(a)(8) of the Act, 19 CFR 351.410, and 19 CFR 351.412 for circumstance-of-sale differences and level-of-trade differences. For comparisons to EP, we made circumstance-of-sale adjustments by deducting home-market direct selling expenses from and adding U.S. direct selling expenses to constructed value. For comparisons to CEP, we made circumstance-of-sale adjustments by deducting home-market direct selling expenses from constructed value. We also made adjustments, when applicable, for home-market indirect selling expenses to offset U.S. commissions in EP and CEP comparisons. When possible, we calculated constructed value at the same level of trade as the EP or CEP. If constructed value was calculated at a different level of trade, we made an adjustment, if appropriate and if possible, in accordance with sections 773(a)(7) and
(8)of the Act. Level of Trade To the extent practicable, we determined normal value for sales at the same level of trade as the U.S. sales (either EP or CEP). When there were no sales at the same level of trade, we compared U.S. sales to home-market sales at a different level of trade. The normal-value level of trade is that of the starting-price sales in the home market. When normal value is based on constructed value, the level of trade is that of the sales from which we derived SG&A and profit. To determine whether home-market sales are at a different level of trade than U.S. sales, we examined stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison-market sales were at a different level of trade from that of a U.S. sale and the difference affected price comparability, as manifested in a pattern of consistent price differences between the sales on which normal value is based and comparison-market sales at the level of trade of the export transaction, we made a level-of-trade adjustment under section 773(a)(7)(A) of the Act. See, *e.g.* , *Notice of Final Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate from South Africa* , 62 FR 61731, 61732 (November 19, 1997). Where the respondent reported no home-market levels of trade that were equivalent to the CEP level of trade and where the CEP level of trade was at a less advanced stage than any of the home-market levels of trade, we were unable to calculate a level-of-trade adjustment based on the respondent's home-market sales of the foreign like product. Furthermore, we have no other information that provides an appropriate basis for determining a level-of-trade adjustment. For respondents' CEP sales, to the extent possible, we determined normal value at the same level of trade as the U.S. sale to the first unaffiliated customer and made a CEP-offset adjustment in accordance with section 773(a)(7)(B) of the Act. The CEP-offset adjustment to normal value was subject to the so-called “offset cap”, calculated as the sum of home-market indirect selling expenses up to the amount of U.S. indirect selling expenses deducted from CEP (or, if there were no home-market commissions, the sum of U.S. indirect selling expenses and U.S. commissions). For a company-specific description of our level-of-trade analyses for these preliminary results, see Memorandum to Laurie Parkhill entitled “Ball Bearings and Parts Thereof from Various Countries: 2006/2007 Level-of-Trade Analysis,” dated April 30, 2008, on file in the CRU, room 1117. Preliminary Results of Reviews As a result of our reviews, we preliminarily determine that the following percentage weighted-average dumping margins on ball bearings and parts thereof from various countries exist for the period May 1, 2006, through April 30, 2007: France Company Margin (percent) Christian Feddersen GmbH & Co. KG 66.42 Lentz & Schmahl GmbH 66.42 SKF France 11.17 Societe Nexans 66.42 Germany Company Margin Christian Feddersen GmbH & Co. KG 70.41 GRW 0.12 Lentz & Schmahl GmbH 70.41 SKF Germany 12.41 Societe Nexans 70.41 Italy Company Margin Christian Feddersen GmbH & Co. KG 69.99 Lentz & Schmahl GmbH 69.99 SKF Italy (and Somecat) 7.06 Societe Nexans 69.99 Japan Company Margin Aisin Seiki Company, Ltd. 10.30 Canon, Inc 10.30 JTEKT 8.02 Nachi-Fujikoshi Corp. 10.30 Nippon Pillow Block Company Ltd. 10.30 NTN 12.58 Sapporo Precision, Inc 10.30 Toyota Motor Corp./Toyota Industries Corp. 10.30 Yamazaki Mazak Trading Company 10.30 United Kingdom Company Margin Barden/Schaeffler UK 0.28 Christian Feddersen GmbH & Co. KG 58.20 Lentz & Schmahl GmbH 58.20 Rolls Royce PLC 0.28 Societe Nexans 58.20 Comments We will disclose the calculations used in our analysis to parties to these reviews within five days of the date of publication of this notice. Any interested party may request a hearing within 30 days of the date of publication of this notice. A general-issues hearing, if requested, and any hearings regarding issues related solely to specific countries, if requested, will be held at the main Department building at times and locations to be determined. Interested parties who wish to request a hearing or to participate if one is requested must submit a written request to the Assistant Secretary for Import Administration within 30 days of the date of publication of this notice. Requests should contain the following:
(1)the party's name, address, and telephone number;
(2)the number of participants;
(3)a list of issues to be discussed. See 19 CFR 351.310(c). Issues raised in hearings will be limited to those raised in the respective case and rebuttal briefs. Case briefs from interested parties and rebuttal briefs, limited to the issues raised in the respective case briefs, may be submitted not later than the dates shown below for general issues and the respective country-specific reviews. Parties who submit case briefs or rebuttal briefs in these proceedings are requested to submit with each argument
(1)a statement of the issue and
(2)a brief summary of the argument. Parties are also encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited. Case Briefs due Rebuttals due General Issues June 11, 2008 June 18, 2008 France June 12, 2008 June 19, 2008 Germany June 13, 2008 June 20, 2008 Italy June 16, 2008 June 23, 2008 Japan June 17, 2008 June 24, 2008 United Kingdom June 18, 2008 June 25, 2008 The Department will issue the final results of these administrative reviews, including the results of its analysis of issues raised in any such written briefs or at the hearings, if held, not later than 120 days after the date of publication of this notice. Assessment Rates The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated, whenever possible, an exporter/importer (or customer)-specific assessment rate or value for merchandise subject to these reviews as described below. We will issue instructions to CBP 15 days after publication of the final results of these reviews. The Department clarified its “automatic assessment” regulation on May 6, 2003. See *Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties* , 68 FR 23954 (May 6, 2003) ( *Assessment of Antidumping Duties* ). This clarification will apply to entries of subject merchandise during the period of review produced by companies included in these preliminary results of reviews for which the reviewed companies did not know their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, see *Assessment of Antidumping Dutie* s. For the responsive companies which were not selected for individual review, we will instruct CBP to apply the rates listed above to all entries of subject merchandise from such firms. For companies for which we are relying on total AFA to establish a dumping margin, we will instruct CBP to apply the assigned dumping margins to all entries of subject merchandise during the POR that were produced or exported by the companies. Export-Price Sales With respect to EP sales, for these preliminary results, we divided the total dumping margins (calculated as the difference between normal value and EP) for each exporter's importer or customer by the total number of units the exporter sold to that importer or customer. We will direct CBP to assess the resulting per-unit dollar amount against each unit of merchandise in each of that importer's/customer's entries under the relevant order during the review period. Constructed Export-Price Sales For CEP sales (sampled and non-sampled), we divided the total dumping margins for the reviewed sales by the total entered value of those reviewed sales for each importer. We will direct CBP to assess the resulting percentage margin against the entered customs values for the subject merchandise on each of that importer's entries under the relevant order during the review period. See 19 CFR 351.212(b). Cash-Deposit Requirements In order to derive a single weighted-average margin for each respondent, we weight-averaged the EP and CEP weighted-average deposit rates (using the EP and CEP, respectively, as the weighting factors). To accomplish this when we sampled CEP sales, we first calculated the total dumping margins for all CEP sales during the review period by multiplying the sample CEP margins by the ratio of total days in the review period to days in the sample weeks. We then calculated a total net value for all CEP sales during the review period by multiplying the sample CEP total net value by the same ratio. Finally, we divided the combined total dumping margins for both EP and CEP sales by the combined total value for both EP and CEP sales to obtain the deposit rate. Furthermore, the following deposit requirements will be effective upon publication of the notice of final results of administrative reviews for all shipments of ball bearings and parts thereof entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(1) of the Act:
(1)the cash-deposit rates for the reviewed companies will be the rates established in the final results of reviews;
(2)for previously reviewed or investigated companies not listed above, the cash-deposit rate will continue to be the company-specific rate published for the most recent period;
(3)if the exporter is not a firm covered in these reviews, a prior review, or the less-than-fair-value investigations but the manufacturer is, the cash-deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise;
(4)the cash-deposit rate for all other manufacturers or exporters will continue to be the all-others rate for the relevant order made effective by the final results of review published on July 26, 1993. See * Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, et al; Final Results of Antidumping Duty Administrative Reviews and Revocation in Part of an Antidumping Duty Order * , 58 FR 39729, 39730 (July 26, 1993). For ball bearings from Italy, see *Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, et al; Final Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews* , 61 FR 66472, 66521 (December 17, 1996). These rates are the all-others rates from the relevant less-than-fair-value investigations. These deposit requirements, when imposed, shall remain in effect until further notice. Effective the publication date of these preliminary results, we will instruct CBP to suspend liquidation and collect a cash deposit of estimated antidumping duties on entries of merchandise produced or exported by Somecat at the weighted-average margin we have calculated for the preliminary results of review for SKF Italy. Notification to Importer This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties. These preliminary results of administrative reviews are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: April 30, 2008. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E8-10078 Filed 5-7-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration A-428-801 Ball Bearings and Parts Thereof from Germany: Preliminary Results of Antidumping Duty Changed-Circumstances Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On March 11, 2008, pursuant to section 751(b) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.216 and 351.221(c)(3), the Department of Commerce initiated a changed-circumstances review of the antidumping duty order on ball bearings and parts thereof from Germany with respect to myonic GmbH. See *Initiation of Antidumping Duty Changed-Circumstances Review: Ball Bearings and Parts Thereof from Germany* , 73 FR 12953 (March 11, 2008) (myonic Initiation). After reviewing information on the record, we have preliminarily concluded that myonic GmbH is the successor-in-interest to Miniaturkugellager Gesellschaft mit beschränkter Haftung and, as a result, should be accorded the same treatment previously accorded Miniaturkugellager Gesellschaft mit beschränkter Haftung with regard to the antidumping duty order on ball bearings and parts thereof from Germany. Interested parties are invited to comment on these preliminary results. EFFECTIVE DATE: May 7, 2008. FOR FURTHER INFORMATION CONTACT: Richard Rimlinger at
(202)482-4477, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230. SUPPLEMENTARY INFORMATION: Background On January 31, 2008, myonic GmbH (myonic) asked the Department to initiate and conduct a changed-circumstances review to confirm that myonic is the successor-in-interest to Miniaturkugellager Gesellschaft mit beschränkter Haftung
(MKL)for purposes of determining antidumping-duty liabilities subject to this order. On March 11, 2008, we initiated a changed-circumstances review of the antidumping duty order on ball bearings and parts thereof from Germany with respect to myonic. See *myonic Initiation* . On March 13, 2008, we sent myonic a supplemental questionnaire requesting further information. On March 24, 2008, we received a timely response to our supplemental questionnaire. On March 27, 2008, we sent myonic a second supplemental questionnaire. On April 8, 2008, we received a timely response to our second supplemental questionnaire. We have not received comments from any other interested parties. Scope of the Order The products covered by this order are ball bearings and parts thereof. These products include all bearings that employ balls as the rolling element. Imports of these products are classified under the following categories: antifriction balls, ball bearings with integral shafts, ball bearings (including radial ball bearings) and parts thereof, and housed or mounted ball bearing units and parts thereof. Imports of these products are classified under the following *Harmonized Tariff Schedules of the United States* (HTSUS) subheadings: 3926.90.45, 4016.93.00, 4016.93.10, 4016.93.50, 6909.19.5010, 8431.20.00, 8431.39.0010, 8482.10.10, 8482.10.50, 8482.80.00, 8482.91.00, 8482.99.05, 8482.99.2580, 8482.99.35, 8482.99.6595, 8483.20.40, 8483.20.80, 8483.50.8040, 8483.50.90, 8483.90.20, 8483.90.30, 8483.90.70, 8708.50.50, 8708.60.50, 8708.60.80, 8708.70.6060, 8708.70.8050, 8708.93.30, 8708.93.5000, 8708.93.6000, 8708.93.75, 8708.99.06, 8708.99.31, 8708.99.4960, 8708.99.50, 8708.99.5800, 8708.99.8080, 8803.10.00, 8803.20.00, 8803.30.00, 8803.90.30, and 8803.90.90. As a result of recent changes to the HTS, effective February 2, 2007, the subject merchandise is also classifiable under the following additional HTS item numbers: 8708.30.5090, 8708.40.7500, 8708.50.7900, 8708.50.8900, 8708.50.9150, 8708.50.9900, 8708.80.6590, 8708.94.75, 8708.95.2000, 8708.99.5500, 8708.99.68, and 8708.99.8180. Successor-in-Interest Determination In a changed-circumstances review involving a successor-in-interest determination, the Department typically examines several factors including, but not limited to, changes in the following:
(1)management;
(2)production facilities;
(3)supplier relationships;
(4)customer base. See *Certain Cut-to-Length Carbon Steel Plate from Romania: Initiation and Preliminary Results of Changed Circumstances Antidumping Duty Administrative Review* , 70 FR 22847 (May 3, 2005). While no single factor or combination of factors will necessarily be dispositive, generally the Department will consider the new company to be the successor to the predecessor if the resulting operations are essentially the same as those of the predecessor company. See, *e.g., Notice of Initiation of Antidumping Duty Changed Circumstances Review: Certain Forged Stainless Steel Flanges from India* , 71 FR 327 (January 4, 2006). Thus, if the record demonstrates that, with respect to the production and sale of the subject merchandise, the new company operates as the same business entity as the predecessor company, the Department may assign the new company the cash-deposit rate of its predecessor. See, * e.g., Fresh and Chilled Atlantic Salmon from Norway: Final Results of Changed Circumstances Antidumping Duty Administrative Review * , 64 FR 9979, 9980 (March 1, 1999). In its January 31, 2008, submission, myonic provided information to demonstrate that myonic is the successor-in-interest to MKL. Myonic submitted a notarized copy of the minutes from the December 11, 2001, meeting of myonic's shareholders memorializing the name change from MKL to myonic. See exhibit D of myonic's January 31, 2008, submission. Myonic also submitted its Articles of Association demonstrating that myonic continued to produce and market subject merchandise after the name change. See exhibit E of myonic's January 31, 2008, submission. Further, myonic provided a letter it sent to its customers informing them of the name change and that the company's production of subject merchandise would continue. See exhibit F of myonic's January 31, 2008, submission. Myonic also submitted its June 19, 2006, Articles of Association demonstrating that on June 1, 2006, all stock of myonic was purchased by myonic Holding GmbH. See exhibit G of myonic's January 31, 2008, submission. Additional information in myonic's March 24, 2008, and April 8, 2008, submissions shows that myonic's management, production facilities, suppliers, and customer base are consistent with those of MKL. As such, we conclude that myonic's request for a changed-circumstances review demonstrates that no major changes have occurred with respect to MKL's management, production facilities, suppliers, or customer base as a result of MKL's name change to myonic or the purchase of all of myonic's stock by myonic Holding GmbH. Therefore, we preliminarily find that myonic is the successor-in-interest to MKL and, as such, is entitled to MKL's cash-deposit rate with respect to entries of subject merchandise. Public Comment Any interested party may request a hearing within 14 days of publication of this notice. See 19 CFR 351.310(c). Any hearing, if requested, will be held 28 days after the date of publication of this notice or the first working day thereafter. Interested parties may submit case briefs and/or written comments not later than 14 days after the date of publication of this notice. See 19 CFR 351.309(c)(1)(ii). Rebuttal briefs and rebuttals to written comments, which must be limited to issues raised in such briefs or comments, may be filed not later than 5 days after the deadline for submitting the case briefs. See 19 CFR 351.309(d). Parties who submit case briefs or rebuttal briefs in this changed-circumstances review are requested to submit with each argument
(1)a statement of the issue and
(2)a brief summary of the argument. Parties should also submit an electronic version of their case and rebuttal briefs. Consistent with 19 CFR 351.216(e), we will issue the final results of this changed-circumstances review no later than 270 days after the date on which this review was initiated or within 45 days of publication of these preliminary results if all parties to the proceeding agree to our preliminary finding. We are issuing and publishing these preliminary results notice in accordance with sections 751(b)(1) and 777(i) of the Act and 19 CFR 351.216 and 351.221(c)(3). Dated: May 1, 2008. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E8-10161 Filed 5-6-08; 8:45 am] BILLING CODE: 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration (C-580-837) Certain Cut-to-Length Carbon-Quality Steel Plate from the Republic of Korea: Notice of Rescission of Countervailing Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: May 7, 2008. FOR FURTHER INFORMATION CONTACT: Jolanta Lawska, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-8362. SUPPLEMENTARY INFORMATION: *Background* : On February 29, 2008, Dongkuk Steel Mill Co., Ltd.
(DSM)(respondent) requested that the Department of Commerce (the Department) conduct an administrative review of the countervailing duty order on certain cut-to-length carbon-quality steel plate from Korea with respect to DSM for the period of January 1, 2007, through December 31, 2007. On March 31, 2008, the Department initiated the review. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews, Request for Revocation in Part, and Deferral of Administrative Review* , 73 FR 16837 (March 31, 2008). On April 4, 2008, DSM withdrew its request for a review pursuant to section 19 CFR 351.213(d)(1). Scope of Order The products covered by this order are certain hot-rolled carbon-quality steel:
(1)universal mill plates ( *i.e.* , flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 mm but not exceeding 1250 mm, and of a nominal or actual thickness of not less than 4 mm, which are cut-to-length (not in coils) and without patterns in relief), of iron or non-alloy-quality steel; and
(2)flat-rolled products, hot-rolled, of a nominal or actual thickness of 4.75 mm or more and of a width which exceeds 150 mm and measures at least twice the thickness, and which are cut-to-length (not in coils). Steel products to be included in the scope of the order are of rectangular, square, circular or other shape and of rectangular or non-rectangular cross-section where such non-rectangular cross-section is achieved subsequent to the rolling process ( *i.e.* , products which have been “worked after rolling”)--for example, products which have been beveled or rounded at the edges. Steel products that meet the noted physical characteristics that are painted, varnished or coated with plastic or other non-metallic substances are included within this scope. Also, specifically included in the scope of the order are high strength, low alloy
(HSLA)steels. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. Steel products to be included in this scope, regardless of Harmonized Tariff Schedule of the United States (HTSUS) definitions, are products in which:
(1)iron predominates, by weight, over each of the other contained elements;
(2)the carbon content is two percent or less, by weight; and
(3)none of the elements listed below is equal to or exceeds the quantity, by weight, respectively indicated: 1.80 percent of manganese, or 1.50 percent of silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.41 percent of titanium, or 0.15 percent of vanadium, or 0.15 percent zirconium. All products that meet the written physical description, and in which the chemistry quantities do not equal or exceed any one of the levels listed above, are within the scope of this order unless otherwise specifically excluded. The following products are specifically excluded from the order:
(1)products clad, plated, or coated with metal, whether or not painted, varnished or coated with plastic or other non-metallic substances;
(2)SAE grades (formerly AISI grades) of series 2300 and above;
(3)products made to ASTM A710 and A736 or their proprietary equivalents;
(4)abrasion-resistant steels ( *i.e.* , USS AR 400, USS AR 500);
(5)products made to ASTM A202, A225, A514 grade S, A517 grade S, or their proprietary equivalents;
(6)ball bearing steels;
(7)tool steels; and
(8)silicon manganese steel or silicon electric steel. The merchandise subject to the order is currently classifiable under the HTSUS under subheadings: 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7208.53.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7225.40.3050, 7225.40.7000, 7225.50.6000, 7225.99.0090, 7226.91.5000, 7226.91.7000, 7226.91.8000, 7226.99.0000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise covered by the order is dispositive. Rescission of Review If a party that requested a review withdraws the request within 90 days of the date of publication of the notice of initiation of the requested review, the Secretary will rescind the review, in whole or in part, pursuant to 19 CFR 351.213(d)(1). In this case, DSM withdrew its request for an administrative review within 90 days from the date of initiation. No other interested party requested a review of DSM and we have received no comments regarding the respondent’s withdrawal of its request for a review. Therefore, consistent with 19 CFR 351.213(d)(1), we are rescinding this review of the countervailing duty order on certain cut-to-length carbon-quality steel plate from Korea with respect to DSM. The Department intends to issue assessment instructions to U.S. Customs and Border Protection
(CBP)15 days after the publication of this notice. The Department will direct CBP to assess countervailing duties at the cash deposit rate in effect on the date of entry for entries during the period January 1, 2007, through December 31, 2007. This notice is in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended and 19 CFR 251.213(d)(4). Dated: April 30, 2008. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E8-10090 Filed 5-6-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Institute of Standards and Technology Malcolm Baldrige National Quality Award Board of Overseers AGENCY: National Institute of Standards and Technology, Department of Commerce. ACTION: Notice of public meeting. SUMMARY: Pursuant to the Federal Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given that there will be a meeting of the Board of Overseers of the Malcolm Baldrige National Quality Award on June 4, 2008. The Board of Overseers is composed of eleven members prominent in the fields of quality, innovation, and performance excellence and appointed by the Secretary of Commerce, assembled to advise the Secretary of Commerce on the conduct of the Baldrige Award. The purpose of this meeting is to discuss and review information received from the National Institute of Standards and Technology with the members of the Judges Panel of the Malcolm Baldrige National Quality Award. The agenda will include: Baldrige Program budget update; Revisions to the award eligibility rules; Baldrige Collaborative activities; and the Baldrige Body of Knowledge and Baldrige Fellows Initiatives. DATES: The meeting will convene June 4, 2008, at 8:30 a.m. and adjourn at3 p.m. on June 4, 2008. ADDRESSES: The meeting will be held at the National Institute of Standards and Technology, Administration Building, Lecture Room A, Gaithersburg, Maryland 20899. All visitors to the National Institute of Standards and Technology site will have to pre-register to be admitted. Please submit your name, time of arrival, e-mail address and phone number to Diane Harrison no later than Tuesday, June 3, 2008, and she will provide you with instructions for admittance. Ms. Harrison's e-mail address is *diane.harrison@nist.gov* and her phone number is
(301)975-2361. FOR FURTHER INFORMATION CONTACT: Dr. Harry Hertz, Director, National Quality Program, National Institute of Standards and Technology, Gaithersburg, Maryland 20899, telephone number
(301)975-2361. Dated: May 1, 2008. James M. Turner, Deputy Director. [FR Doc. E8-10092 Filed 5-6-08; 8:45 am] BILLING CODE 3510-13-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-AW65 Atlantic Highly Migratory Species; Atlantic Shark Management Measures AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Stock Status Determinations; Notice of Intent
(NOI)to prepare an Environmental Impact Statement (EIS); request for comments. SUMMARY: Based on the 2007 small coastal sharks
(SCS)stock assessment, NMFS is declaring blacknose sharks to be overfished with overfishing occurring. As such, NMFS announces its intent to prepare an EIS under the National Environmental Policy Act (NEPA). This EIS would assess the potential effects on the human environment of the proposed action taken to rebuild blacknose sharks and prevent overfishing per the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The EIS would amend the 2006 Consolidated Highly Migratory Species
(HMS)Fishery Management Plan
(FMP)and examine management alternatives available to rebuild blacknose sharks. NMFS is requesting comments on a range of commercial and recreational management measures in both directed and incidental fisheries including, but not limited to, quota levels, regional and seasonal quotas, retention limits, minimum sizes, and time/area closures. DATES: Comments on this action must be received no later than 5 p.m., local time, on August 5, 2008. ADDRESSES: Written comments on this action should be mailed to Karyl Brewster-Geisz, Highly Migratory Species Management Division by any of the following methods: • Email: *SCS_Scoping@noaa.gov* . • Written: 1315 East-West Highway, Silver Spring, MD 20910. Please mark the outside of the envelope “Scoping Comments on Amendment 3 to HMS FMP.” • Fax:
(301)713-1917. For a copy of the stock assessments, please contact Jessica Beck
(301)713-2347. FOR FURTHER INFORMATION CONTACT: Karyl Brewster-Geisz
(301)713-2347 or Jackie Wilson
(240)338-3936. SUPPLEMENTARY INFORMATION: The Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Act. The Consolidated HMS FMP is implemented by regulations at 50 CFR part 635. Determination of Overfished Shark Fisheries NMFS' determination of the status of a stock relative to overfishing and an overfished condition is based on both the removal of fish from the stock through overfishing (the exploitation rate) and the current stock size. Thresholds used to determine the status of Atlantic HMS are fully described in Chapter 3 of the 1999 FMP for Atlantic Tunas, Swordfish, and Shark. A species is considered overfished when the current biomass is less than the minimum stock size threshold. The minimum stock size threshold is determined based on the natural mortality of the stock and the biomass at maximum sustainable yield (B MSY ). Maximum sustainable yield is the maximum long-term average yield that can be produced by a stock on a continuing basis. The biomass can be lower than B MSY , and the stock not declared overfished as long as the biomass is above the biomass at the minimum stock size threshold. Overfishing may be occurring on a species if the current fishing mortality is greater than the fishing mortality
(F)at maximum sustainable yield (F MSY ) (F>F MSY ). In the case of F, the maximum fishing mortality threshold is F MSY . Thus, if F exceeds F MSY , the stock is experiencing overfishing. A. Small Coastal Sharks
(SCS)The latest 2007 stock assessment of SCS in the U.S. Atlantic and Gulf of Mexico was recently completed (72 FR 63888, November 13, 2007). This peer-reviewed assessment, which was conducted according to the Southeast Data, Assessment, and Review (SEDAR) process, provides an update from the 2002 stock assessment on the status of SCS stocks and projects their future abundance under a variety of catch levels in the U.S. Atlantic Ocean, Gulf of Mexico, and Caribbean Sea. The 2007 assessment includes updated catch estimates, new biological data, and a number of fishery-independent catch rate series, as well as fishery-dependent catch rate series. The peer reviewers determined that the data used in the 2007 stock assessment of the SCS complex and the individual species within the complex were considered the best available at the time and the assessment was considered adequate. However, because the species were individually assessed, the peer reviewers recommended using species-specific results rather than on the aggregated SCS complex results. As a result of this recommendation, and because the stock assessment covered all SCS species, NMFS will no longer provide status updates or determinations on the SCS complex as a whole. B. Finetooth Sharks According to the 2002 SCS stock assessment, finetooth sharks were experiencing overfishing. However, the 2007 SCS stock assessment found that finetooth sharks are not overfished (N 2005 /N MSY = 1.80) and overfishing is not occurring (F 2005 /F MSY = 0.17) (Table 1). Based on this, NMFS has determined that finetooth sharks are not overfished and no overfishing is occurring. However, NMFS also notes that while the peer reviewers agreed that it is reasonable to conclude that the stock is not currently overfished, they also indicated that given the limited data available on the population dynamics for finetooth, management should be cautious. C. Blacknose Sharks The 2002 SCS stock assessment found that blacknose were not overfished and overfishing was not occurring. However, the 2007 stock assessment for blacknose sharks indicates that spawning stock fecundity (SSF), i.e., number of reproductive-age individuals in a population, in 2005 and during 2001-2005 was smaller than SSF MSY (SSF 2005 /SSF MSY = 0.48) (Table 1). Therefore, NMFS has determined that blacknose sharks are overfished. In addition, the estimate of fishing mortality rate in 2005 and the average for 2001-2005 was greater than F MSY , and the ratio was substantially greater than 1 in both cases (F 2005 /F MSY = 3.77). Based on these results, NMFS has determined that blacknose sharks are experiencing overfishing. The assessment recommended a rebuilding plan with 70 percent probability of recovering to SSF MSY by 2019. This recommended rebuilding time is 11 years from 2009. A constant TAC of 19,200 individuals would lead to rebuilding with 70 percent probability by 2027. The constant TAC also allows for rebuilding with 50 percent confidence by 2024. D. Atlantic Sharpnose Sharks The 2002 SCS stock assessment found that Atlantic sharpnose sharks were not overfished and overfishing was not occurring. The 2007 assessment for Atlantic sharpnose sharks also indicated that the stock is not overfished (SSF 2005 /SSF MSY = 1.47) and that no overfishing is occurring (F 2005 /F MSY = 0.74) (Table 1). Based on these results, NMFS has determined that the Atlantic sharpnose sharks are not overfished with no overfishing occurring. However, because estimates of F from the assessment indicate that F is close to, but presently below, F MSY (i.e., overfishing is not occurring), the peer reviewers suggest setting a threshold for F to keep it below the F MSY threshold to prevent overfishing in the future. E. Bonnethead Sharks Based on the bonnethead stock assessment, the peer reviewers determined that bonnethead sharks are not overfished (SSF 2005 /SSF MSY = 1.13). In addition, the estimate of fishing mortality rate in 2005 was less than F MSY , (F 2005 /F MSY = 0.61) (Table 1), thus overfishing was not occurring. As a result, NMFS has determined that bonnethead sharks are not overfished with no overfishing occurring. However, fishing mortality rates in the recent past have fluctuated above and below F MSY . Copies of the 2007 SCS stock assessment are available for review (see ADDRESSES ). Table 1. Summary Table of Biomass and Fishing Mortality for Small Coastal Sharks SCS). Source: SEDAR 13 Stock Assessment Panel, July 9, 2007. Age-structured State-Space Age-Structured Production Models (SPASMs) were used for bonnethead, Atlantic sharpnose, and blacknose sharks. Surplus production Bayesian Surplus Production
(BSP)models were used for the SCS complex and finetooth sharks. Species Current Relative Biomass Level * Current Biomass (N 2005 ) Stock Abundance (N MSY ) Minimum Stock Size Threshold
(MSST)Current Relative Fishing Mortality Rate (F 2005 /F MSY ) Maximum Fishing Mortality Threshold (F MSY ) Outlook Atlantic Sharpnose Sharks 1.47 (SSF 2005 /SSF MSY ) 5.96E+06 4.45E+06 4.09E+06 0.74 0.19 Not overfished; overfishing is not occurring Blacknose Sharks 0.48 (SSF 2005 /SSF MSY ) 3.49E+05 5.7E+05 4.3E+05 3.77 0.07 Overfished; Overfishing is occurring Bonnethead Sharks 1.13 (SSF 2005 /SSF MSY ) 1.59E+06 1.92E+06 1.4E+06 0.61 0.31 Not overfished; overfishing is not occurring Finetooth Sharks 1.80 (N 2005 /N MSY ) 6.00E+06 3.20E+06 2.4E+06 0.17 0.03 Not overfished; Overfishing is not occurring * Spawning stock fecundity
(SSF)or spawning stock number
(SSN)was used as a proxy of biomass when biomass
(B)does not influence pup production in sharks. For finetooth stocks, N was used to estimate biomass levels due to data limitations; therefore, only surplus production models were run. Request for Comments Currently, both commercial and recreational fishermen may target Atlantic sharpnose, blacknose, finetooth, and bonnethead sharks. Commercial regulations for SCS species include, but are not limited to, no retention limit for directed permit holders, 16 pelagic and SCS species combined per vessel per trip for incidental permit holders, and annual quota of 454 mt dw split between three regions (North Atlantic, South Atlantic, and Gulf of Mexico). Amendment 2 to the Consolidated HMS FMP proposed combining the SCS regions into one (71 FR 41392). Recreational regulations for SCS species include, but are not limited to, retention limit of 1 shark per vessel per trip with a 4.5-ft (54-in) fork length minimum size, plus 1 Atlantic sharpnose and 1 bonnethead per person per trip (no minimum size). NMFS anticipates changes to shark management as a result of the latest SCS stock assessment and requests comments on a variety of management options for this action. Specifically, NMFS requests comments on commercial management options including, but not limited to, quota levels, regional and seasonal quotas, trip limits, minimum sizes, quota monitoring, authorized gears, permit structure, and prohibited species. In addition, NMFS is seeking comments on recreational management options including, but not limited to, retention limits, minimum sizes, authorized gears, and landing requirements. NMFS also seeks comments on display quotas and collection of sharks through exempted fishing permits, display permits, and scientific research permits. Comments received on this action will assist NMFS in determining the options for rulemaking to conserve and manage shark resources and shark fisheries, consistent with the Magnuson-Stevens Act and the Consolidated HMS FMP. Specifically, comments are requested on management measures to reduce fishing mortality on blacknose sharks in shrimp trawl fisheries because a significant proportion of fishing mortality is occurring in these fisheries as bycatch. NMFS will hold scoping meetings to gather public comment on the implementation of new management measures for SCS (time and location details of which will be announced in a subsequent **Federal Register** notification). Based on the 2007 stock assessment, NMFS believes the implementation of new management measures via an amendment to the Consolidated HMS FMP is necessary to rebuild blacknose sharks. NMFS anticipates completing this amendment and any related documents by January 1, 2010. Dated: May 1, 2008. Emily H. Menashes Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 08-1225 Filed 5-2-08; 2:04 pm]
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SCOTUS425 U.S. 185
F. App'x35 F.3d 1407
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