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Code · REGISTER · 2008-06-09 · Agriculture Agriculture Department See Animal and Plant Health Inspection Service Animal Animal and Plant Health Inspection Service RULES Consolidation of the Fruit Fly Regulations, 32431-32439 E8-128 · Unknown

Unknown. Final rule

126,221 words·~574 min read·/register/2008/06/09/08-1328

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-2008-06-09.xml --- 73 111 Monday, June 9, 2008 Contents Agriculture Agriculture Department See Animal and Plant Health Inspection Service Animal Animal and Plant Health Inspection Service RULES Consolidation of the Fruit Fly Regulations, 32431-32439 E8-12858 NOTICES Determination of Pest-Free Areas Within the States of Ceara and Rio Grande do Norte, Brazil, 32548-32549 E8-12855 Centers Centers for Disease Control and Prevention NOTICES Meetings:
Disease, Disability, and Injury Prevention and Control Special Emphasis Panel; Correction, E8-12877 E8-12879 32584-32585 E8-12880 E8-12889 National Center for Injury Prevention and Control Advisory Committee for Injury Prevention and Control, 32585-32586 E8-12892 Safety and Occupational Health Study Section, National Institute for Occupational Safety and Health, 32586 E8-12793 Children Children and Families Administration NOTICES Awards: Program Expansion Supplement, 32548 E8-12806 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration See Patent and Trademark Office NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 32549 E8-12801 Drug Drug Enforcement Administration NOTICES Denial of Application: Paul H. Volkman; Correction, 32629 Z8-11851 Education Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 32561-32562 E8-12822 Student Assistance General Provisions, Federal Supplemental Educational Opportunity Grant Program et al., 32562-32567 E8-12865 Employment Employment and Training Administration NOTICES Change in Status of an Extended Benefit Period:
Alaska, 32602 E8-12831 Publication of Unemployment Insurance Program Letters; Immediate Deposit and Withdrawal Standards et al., 32603-32604 E8-12810 Energy Energy Department See Federal Energy Regulatory Commission EPA Environmental Protection Agency RULES Community Right-to-Know; Corrections and 2007 Updates to the Toxics Release Inventory North American Industry Classification System Reporting Codes, 32466-32473 E8-12856 PROPOSED RULES Proposed Significant New Use Rules on Certain Chemical Substances, 32508-32514 E8-12862 NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 32570-32572 E8-12853 Coastal Elevations and Sea Level Rise Advisory Committee Charter Renewal, 32572 E8-12599 De Minimis Settlement: BCX Tank Superfund Site; Jacksonville, Duval County, FL, 32572-32573 E8-12846 Natural Rubber Latex Adhesives; Disposition of TSCA Section 21 Petition, 32573-32577 E8-12850 FAA Federal Aviation Administration PROPOSED RULES Airworthiness Directives: BAE Systems (Operations) Limited (Jetstream) Model 4101 Airplanes, 32488-32490 E8-12828 Boeing Model 737 600, 700, 800, and 900 Series Airplanes, 32491-32493 E8-12829 Bombardier Model CL 600 2C10 (Regional Jet Series 700, 701, & 702) Airplanes et al., 32493-32495 E8-12833 Bombardier Model CL 600 2C10, et al., 32486-32488 E8-12819 Airworthiness Directives;
EADS SOCATA Model TBM 700 Airplanes, 32495-32497 E8-12818 Airworthiness Directives; Pilatus Aircraft Ltd. Model PC-6 Airplanes, 32497-32499 E8-12816 NOTICES Approval of Noise Compatibility Program: Port Columbus International Airport, Columbus, Ohio, 32622-32624 E8-12591 Meetings: Air Traffic Procedures Advisory Committee, 32624 E8-12874 FCC Federal Communications Commission NOTICES Suspension and Initiation of Debarment Proceedings: Schools and Libraries Universal, 32581-32582 E8-12842 Schools and Libraries Universal, 32579-32581 E8-12840 Schools and Libraries Universal Service Support Mechanism, 32577-32579 E8-12832 Federal Emergency Federal Emergency Management Agency NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 32591-32592 E8-12824 Federal Energy Federal Energy Regulatory Commission NOTICES Availability of Environmental Assessment: Proposed Fitchburg Expansion Project; Tennessee Gas Pipeline Co., 32568 E8-12848 Complaint: Maryland Public Service Com.; PJM Interconnection, L.L.C., 32568-32569 E8-12849 Issuance of Orders: North Allegheny Wind, LLC, 32569 E8-12847 Meetings: Transcontinental Gas Pipe Line Corp., 32569 E8-12851 FMC Federal Maritime Commission NOTICES Meetings;
Sunshine Act, 32582-32583 08-1333 Federal Motor Federal Motor Carrier Safety Administration PROPOSED RULES Commercial Driver's License Testing and Learner's Permit Standards; Extension of Comment Period, 32520 E8-12876 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 32624-32625 E8-12881 Federal Railroad Federal Railroad Administration PROPOSED RULES Railroad Rehabilitation and Improvement Financing Program, 32515-32520 E8-12811 Federal Transit Federal Transit Administration NOTICES Limitation on Claims against Proposed Public Transportation Projects, 32625-32626 E8-12814 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants:
Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover (Charadrius melodus) in Texas; Correction, 32629 Z8-10742 Food Food and Drug Administration NOTICES Approval of Supplemental New Animal Drug Application: Moxidectin, 32586 08-1329 Meetings: Cardiovascular and Renal Drugs Advisory Committee, 32586-32587 E8-12868 Orthopaedic and Rehabilitation Devices Panel of the Medical Devices Advisory Committee, 32587-32588 E8-12866 Peripheral and Central Nervous System Drugs Advisory Committee and the Psychopharmacologic Drugs Advisory Committee, 32588-32589 E8-12870 Foreign Foreign Claims Settlement Commission NOTICES Meetings;
Sunshine Act, 32602 08-1336 GSA General Services Administration PROPOSED RULES General Services Acquisition Regulation: GSAR Case 2007-G501; Protests, Disputes and Appeals, 32514-32515 E8-12572 GAO Government Accountability Office RULES Administrative Practice and Procedure, Bid Protest Regulations, Government Contracts, 32427-32430 E8-12790 Health Health and Human Services Department See Centers for Disease Control and Prevention See Children and Families Administration See Food and Drug Administration See National Institutes of Health NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, E8-12791 32583-32584 E8-12794 Homeland Homeland Security Department See Federal Emergency Management Agency See U.S. Customs and Border Protection Housing Housing and Urban Development Department PROPOSED RULES Federal Housing Administration: Acceptable Payment History for Late Request for Endorsement of Mortgage for Insurance, 32632-32634 E8-12813 NOTICES Fiscal Year 2008 SuperNOFA for HUD's Discretionary Grant Programs; Correction for Section 202 and Section 811 Programs, 32592-32594 E8-12807 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See Minerals Management Service See National Park Service NOTICES Charter Renewal:
Sport Fishing and Boating Partnership Council, 32594 E8-12854 IRS Internal Revenue Service RULES Source Rules Involving U.S. Possessions and Other Conforming Changes; Correction, 32629 C8-1105 PROPOSED RULES Declaratory Judgments; Gift Tax Determinations, 32503-32508 E8-12894 Guidance Regarding Foreign Base Company Sales Income; Hearing, 32499-32500 E8-12875 Qualified Nonpersonal Use Vehicles, 32500-32503 E8-12805 NOTICES Meetings: Area 7 Taxpayer Advocacy Panel, 32627 E8-12884 International International Trade Administration NOTICES Antidumping Duty:
Pure Magnesium from the People's Republic of China, 32549-32556 E8-12869 Antidumping Methodologies for Proceedings that Involve Significant Cost Changes, 32557 E8-12987 Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation: Opportunity to Request Administrative Review, 32557-32559 E8-12860 Justice Justice Department See Drug Enforcement Administration See Foreign Claims Settlement Commission NOTICES Lodging of Consent Judgment Pursuant to Resource Recovery and Conservation Act:
Asti Holding Corp., et al., 32601-32602 E8-12758 Labor Labor Department See Employment and Training Administration Land Land Management Bureau NOTICES Proposed Reinstatement of Terminated Oil and Gas Lease: WY, 32595 E8-12792 Temporary Closure of Public Lands in Washoe County, NV, 32595 E8-12838 Maritime Maritime Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 32628 E8-12852 Requested Administrative Waiver of the Coastwise Trade Laws, 32626-32627 E8-12863 Millennium Millennium Challenge Corporation NOTICES Meetings;
Sunshine Act, 32604 08-1335 Minerals Minerals Management Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 32595-32600 E8-12809 E8-12817 National Archives National Archives and Records Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 32604-32605 E8-12997 National Highway National Highway Traffic Safety Administration RULES Federal Motor Vehicle Safety Standards: Side Impact Protection, 32473-32485 E8-11273 NIH National Institutes of Health NOTICES Meetings:
Center for Scientific Review, 32589-32590 E8-12655 National Institute of Child Health and Human Development, 32591 E8-12654 National Institute of Mental Health, 32590-32591 E8-12652 National Institute on Aging, 32591 E8-12653 NOAA National Oceanic and Atmospheric Administration PROPOSED RULES Endangered and Threatened Species: Caribbean Monk Seal, 32521-32526 E8-12808 Magnuson-Stevenson Act Provisions: Annual Catch Limits; National Standard Guidelines, 32526-32547 08-1328 National Park National Park Service NOTICES Minor Boundary Revision at Lewis and Clark National Historical Park, 32600 E8-12841 National Register of Historic Places;
Notification of Pending Nominations and Related Actions, 32600-32601 E8-12812 National Science National Science Foundation NOTICES Permit Applications Received, 32605-32606 E8-12760 E8-12786 Nuclear Nuclear Regulatory Commission RULES Regulatory Improvements to the Nuclear Materials Management and Safeguards System, 32453-32466 E8-12830 NOTICES Acceptance for Docketing of an Application: Combined License For Calvert Cliffs Nuclear Power Plant Unit Three, 32606-32607 E8-12844 Environmental assessment and findings of no significant impact:
Entergy Nuclear Operations, Inc., 32607 E8-12893 Patent Patent and Trademark Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 32559-32561 E8-12820 Personnel Personnel Management Office NOTICES Excepted Service; appointments under Schedules A, B, and C, 32607-32609 E8-12826 SEC Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 32609 E8-12926 E8-12927 Self-Regulatory Organizations: New York Stock Exchange LLC, 32610-32615 E8-12796 E8-12797 E8-12798 The NASDAQ Stock Market LLC, 32615-32617 E8-12799 Self-Regulatory Organizations;
Proposed Rule Changes: American Stock Exchange LLC, 32617-32619 E8-12803 SBA Small Business Administration NOTICES Disaster Declaration: Arkansas, 32619 E8-12871 California, 32619-32620 E8-12872 State State Department NOTICES Culturally Significant Objects Imported for Exhibition Determinations: “The Essential Art of African Textiles; Design Without End”, 32620 E8-12859 Final Environmental Assessment and a Finding of no Significant Impact: Enbridge Southern Lights Pipeline Project, 32620-32621 E8-12861 Thrift Thrift Supervision Office NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 32627-32628 E8-12815 Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See Federal Railroad Administration See Federal Transit Administration See Maritime Administration See National Highway Traffic Safety Administration NOTICES Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits Filed Under Subpart B, E8-12836 32621-32622 E8-12887 Foreign Air Carrier Permits Filed Under Subpart B, 32622 E8-12845 Aviation Proceedings, Agreements Filed, 32622 E8-12891 Aviation Proceedings, Agreements filed the week ending February 8, 2008, 32622 E8-12834 Treasury Treasury Department See Internal Revenue Service See Thrift Supervision Office Customs U.S.
Customs and Border Protection RULES Changes to the Visa Waiver Program to Implement the Electronic System for Travel Authorization Program, 32440-32453 E8-12673 Mandatory Pre-Departure Filing of Export Cargo Information Through the Automated Export System, 32466 E8-12627 Separate Parts In This Issue Part II Housing and Urban Development Department, 32632-32634 E8-12813 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. 73 111 Monday, June 9, 2008 Rules and Regulations GOVERNMENT ACCOUNTABILITY OFFICE 4 CFR Part 21 Government Accountability Office, Administrative Practice and Procedure, Bid Protest Regulations, Government Contracts AGENCY: Government Accountability Office.
ACTION: Final rule. SUMMARY: This document amends Government Accountability Office
(GAO)Bid Protest Regulations, which have been promulgated in accordance with the Competition in Contracting Act of 1984. These amendments are being made to implement changes to the definition of an “interested party” for the GAO Bid Protest forum set forth in sec. 326 of the National Defense Authorization Act for Fiscal Year 2008, and to make certain administrative changes. DATES: *Effective Date:* June 9, 2008. FOR FURTHER INFORMATION CONTACT: Michael R. Golden (Managing Associate General Counsel), Ralph O. White (Assistant General Counsel), or Jonathan L. Kang (Senior Attorney), 202-512-3315. SUPPLEMENTARY INFORMATION: Effective Dates GAO's statutory jurisdiction to hear bid protests filed by interested parties was recently amended by section 568 of the Department of Homeland Security Appropriations Act, 2008 (enacted as Division E of the Consolidated Appropriations Act, 2008, Pub. L. 110-161, 121 Stat. 1844, on December 26, 2007), and by sections 326 and 843 of the National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, 122 Stat. 3, 62, 236. Section 568 of the Department of Homeland Security Appropriations Act, 2008, made the Transportation Security Administration
(TSA)subject to the Federal Acquisition Regulation. Therefore, as of the June 23, 2008, effective date, GAO will begin to hear protests of TSA procurements covered by TSA solicitations issued on or after the effective date. Section 326 of the National Defense Authorization Act for Fiscal Year 2008 expanded the protest rights of Federal employees in a competition conducted under Office of Management and Budget
(OMB)Circular A-76 or noncompetitive decision to convert a function performed by Federal employees to private sector performance. Section 326 specifies that GAO has jurisdiction to hear protests concerning studies initiated after January 1, 2004, for actions taken after the date of enactment, which was January 28, 2008. Section 843 of the National Defense Authorization Act for Fiscal Year 2008 amended GAO's statutory jurisdiction under 10 U.S.C. 2304c(e) and 41 U.S.C. 253j(e) to authorize GAO to hear protests of the issuance or proposed issuance of certain task and delivery orders under certain indefinite-delivery/indefinite-quantity contracts. Section 843 specifies that GAO has jurisdiction to hear protests concerning the issuance or proposed issuance of task and delivery orders 120 days after enactment, which is May 27, 2008. Background On March 21, 2008, GAO published a proposed rule (73 FR 15098) to amend its Bid Protest Regulations. The supplementary information included with the proposed rule explained that the proposed revisions to GAO's Bid Protest Regulations were promulgated in accordance with the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. 3551-3556, in response to statutory changes in GAO's bid protest jurisdiction contained in section 568 of the Department of Homeland Security Appropriations Act, 2008, and sections 326 and 843 of the National Defense Authorization Act for Fiscal Year 2008. The proposed rule also explained that after careful consideration, GAO had concluded that no changes in GAO's Bid Protest Regulations were necessary in order to effectuate the provisions of section 568 of the Department of Homeland Security Appropriations Act, 2008, or section 843 of the National Defense Authorization Act for Fiscal Year 2008. The proposed rule therefore set forth the proposed revisions to GAO's Bid Protest Regulations to implement section 326 of the National Defense Authorization Act for Fiscal Year 2008 and to make certain administrative changes. GAO invited interested persons to participate in this rulemaking by submitting written comments regarding the proposed revisions. These comments were required to be submitted on or before April 21, 2008. Summary of Comments GAO received written comments from two Federal agencies, two Federal employee labor unions, the American Bar Association, and two individuals. In adopting this final rule, GAO has carefully considered all comments received. With respect to the changes in GAO's rules to implement the recently enacted statutes, one of the agencies, the American Bar Association, and both Federal employee labor unions explicitly agreed that the proposed regulations correctly implemented the statutory language. On the other hand, both of the employee unions suggested additional changes to GAO's rules to fully implement what they contend is the intent of the statutory changes. With respect to the changes in GAO's rules made for administrative purposes, the American Bar Association endorsed the proposed changes. A summary of the more significant specific comments concerning GAO's proposed rule, and GAO's responses to these comments, are set forth below. Interested Party The recent changes to the statutory definition of an “interested party” anticipate that Federal employees may be represented by either of two entities:
(1)The official who submitted the agency tender in a public-private competition; or
(2)any one person or individual who, for the purpose of representing the employees of a Federal agency in a protest, has been designated their agent by a majority of the employees who are engaged in performing such activity. One individual commentator noted that the proposed revision to the definition of an “interested party” uses the term “individual” rather than the term “person” to describe the representative other than the agency tender official
(ATO)who can file a protest on behalf of affected employees, and raised concerns about the term “individual.” Congress initially changed the statutory definition of “interested party” in section 739(c) of the Financial Services and General Government Appropriations Act, 2008 (enacted as Division D of the Consolidated Appropriation Act, 2008), using the term “person” to describe the representative of the majority of affected Federal employees. One month later, in the National Defense Authorization Act for Fiscal Year 2008, Congress again amended the same provision, this time using the term “individual.” GAO has used the language of the later-enacted statute for its rules. For GAO, the use of the term “individual” as opposed to “person” is not intended to signal any substantive difference between the terms. One of the agency commentators expressed concern that the interested party definition could allow affected employees to protest the selection of a “most efficient organization”
(MEO)under a public-private competition conducted pursuant to OMB Circular A-76. GAO's proposed interested party definition, which closely tracks the statutory enactment, does not address (just as the statute does not address) whether affected employees are authorized to protest the selection of an MEO. In the event GAO is presented with this issue, GAO will consider it at that time. While the two Federal employee unions expressly recognize that GAO's proposed rules were faithfully implementing the statutory amendments to the definition of an interested party, both expressed concern regarding several areas where they contend more guidance should be provided. These concerns, in the aggregate, were that the definition of an interested party should be supplemented to:
(1)Provide guidance regarding the designation of an employee representative (this concern was also raised by one of the individual commentators),
(2)address whether a government employee must lose or be at risk of losing his or her job in order to have standing to protest, and
(3)authorize a protest without regard to the number of employees involved. Additionally, one Federal employee union argued that affected employees should be eligible to receive access to information covered by a protective order. With respect to the designation of an employee representative, GAO plans to resolve these issues on a case-by-case basis. However, GAO's practice is to generally accept a party's representation that it is an interested party, unless facts are brought to GAO's attention that challenge the representation. With respect to whether a government employee must lose his or her job in order to have standing to protest, GAO has addressed this issue in a recent decision in which GAO concluded that Federal employees' jobs “must be at stake in order for their designated agent to qualify as an interested party to challenge an agency's conversion of a function to performance by the private sector.” *Mark Whetstone—Designated Employee Agent,* B-311284, May 9, 2008, 2008 CPD ¶_ at 5-6. Because GAO has addressed this issue in a published decision, GAO does not believe that a change to the proposed rule is needed. With respect to whether a protest is authorized without regard to the number of affected employees, GAO has addressed this issue in a recent decision as well. As GAO explained in *Lisa Hartman—Designated Employee Agent,* B-311247, May 6, 2008, 2008 CPD ¶_, there is no requirement under OMB Circular A-76 for an agency to use the procurement process to conduct a “streamlined competition,” when a commercial activity is performed by 65 or fewer full-time equivalent
(FTE)employees. Moreover, there is no statutory requirement to conduct a public-private competition, using the procurement process, if fewer than 10 FTEs are involved. *Id.* ; *see also* National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, Sec. 327, 122 Stat. 3, 63. Because GAO has addressed this issue in a decision, GAO does not believe that a change to the proposed rule is needed. Finally, with respect to whether affected employees should be eligible to receive access to information covered by a protective order, GAO notes that this issue was raised by several commentators in connection with the revision of GAO's rules in 2005. 70 FR 19679, 19680, Apr. 14, 2005. As explained then, GAO thought it was premature to provide definitive guidance regarding providing access to protected information by the ATO, the employee representative, and/or their attorneys. Since that time, GAO has not had an opportunity to address this matter further in protest decisions. Nonetheless, GAO thinks that several points of guidance offered then are still applicable. GAO believes that where counsel for the ATO or for the employee representative is not a government employee, that attorney will be required to apply for admission under existing standards established for admission to a protective order. As for the ATO and the employee representative, those individuals would presumably not be provided access to protected information under the protective order, just as non-attorneys in other protests cannot obtain such access. In cases where counsel for the ATO, or for the employee representative, is a government employee, GAO will proceed on a case-by-case basis, with appropriate weight given to the agency's views and, in particular, to the access that the agency has given the attorney to proprietary or source selection sensitive documents before the protest was filed. As the practice develops, and experience is gained by all sides, GAO intends to develop uniform procedures that can be incorporated into the bid protest process and, if warranted, into GAO's Bid Protest Regulations. Contracting Agency In the proposed rules, GAO explained it was deleting the definition of “contracting agency” at paragraph
(d)of 4 CFR 21.0, and replacing the term “contracting agency” with “agency” throughout 4 CFR 21. One of the individual commentators brought to GAO's attention that the proposed rule failed to implement this change at paragraph
(c)of 4 CFR 21.3. GAO is correcting this omission in the final rule. Additional Statements In the proposed rules, GAO explains that, consistent with current practice, GAO proposed to revise paragraph
(j)of 4 CFR 21.3 to clarify that parties must seek GAO's prior approval before submitting additional statements, and that GAO reserves the right to disregard statements that are submitted without prior approval. One of the individual commentators suggested that GAO amend the proposed rule to state that GAO will automatically reject additional filings that are submitted without prior approval. Although the amendment of the rule reflects the need for parties to seek prior approval before submission of additional statements, GAO does not believe that it would be appropriate, in every case, to automatically reject additional statements submitted without prior approval. As a result, GAO is not changing the proposed rule in this respect. The same commentator also requested that GAO amend the proposed rule to state that when a party is allowed to submit an additional statement, the other parties shall have a minimum of 24 hours to respond, where practicable. As a general rule, consistent with GAO's statutory obligation to issue decisions within 100 calendar days, GAO allows parties to respond to additional statements. GAO is not prepared, however, to amend the rules to reduce its flexibility in this area. One of the Federal employee union commentators requested that GAO amend this proposed rule to allow parties who request permission to submit additional statements to submit the statement along with the request. GAO does not believe that this proposed change is warranted, as it would effectively defeat the stated purpose of the rule of requiring parties to first obtain permission to submit additional statements. Reimbursement of Costs One of the individual commentators requested that GAO amend its rule at 4 CFR 21.8 to state that GAO will recommend reimbursement of costs and attorneys' fees only in “appropriate circumstances,” so as to provide GAO with the discretion to avoid recommending that an agency reimburse the costs and fees of agency employees or counsel. The commentator recognizes that this concern would not exist in situations where affected employees retain outside representation. GAO does not think that changes to this rule are needed to conclude that awarding costs to government employee protesters may not be appropriate, because the rule already states that GAO “may” recommend reimbursement of protest costs, including attorneys' fees. The same commentator also suggested that GAO clarify paragraph
(e)of 4 CFR 21.8 to expressly state that GAO will not recommend reimbursement of protest costs where an agency takes prompt corrective action, i.e., the agency takes corrective action before the agency report is produced. GAO thinks this issue has been adequately addressed in prior decisions. E.g., *Alaska Structures, Inc.-Costs,* B-298156.2, July 17, 2006, 2006 CPD ¶ 109 at 4. GAO recognizes that the commentator is accurately stating the general rule applicable to recommendations for the reimbursement of protest costs. On the other hand, GAO does not rule out the possibility that unique and rarely encountered circumstances could warrant the recommendation of the reimbursement of costs when an agency takes corrective action prior to the due date for the agency report and would like to retain its discretion in this regard. *See Louisiana Clearwater, Inc.—Reconsideration & Costs,* B-283081.4, B-283081.5, Apr. 14, 2000, 2000 CPD ¶ 209 at 6. Statutory Stays In the notice of proposed rulemaking, GAO stated that it would revise 4 CFR 21.6 and 21.14 to clarify that GAO has no role in administering the statutory requirements to withhold contract award or suspend contract performance. One of the Federal employee unions expressed concern with GAO's proposed clarification because of what the commentator perceived as GAO's ability to direct agencies to suspend contract performance. The commentator argued that this ability could provide a valuable mechanism to enforce the rights of affected employees. GAO proposed this change to more accurately reflect its role in questions involving the statutory stay provisions of CICA. GAO views this clarification as appropriate for all of the protests over which GAO has jurisdiction: this clarification has no greater or lesser application to protests involving public-private competitions. As a result, GAO plans to implement the proposed changes to 4 CFR 21.6 and 4 CFR 21.14 as explained in the notice of proposed rulemaking. TSA Jurisdiction In the notice of proposed rulemaking, GAO noted that as of June 23, 2008, procurements conducted by the TSA will be subject to the Federal Acquisition Regulation (FAR), such that GAO will gain jurisdiction over TSA procurements. The Department of Homeland Security
(DHS)has issued a final rule stating that TSA “acquisitions initiated after June 22, 2008” will be subject to the FAR. 73 FR 30317, May 27, 2008. In addition, TSA has requested that GAO clarify that its jurisdiction will apply to procurements covered by solicitations issued on or after June 23. In light of the revised DHS regulations pertaining to the applicability of the FAR to TSA procurements, and in the interest of an orderly transition by TSA to FAR-based procurements, GAO will hear protests of TSA procurements covered by TSA solicitations issued on or after June 23. List of Subjects in 4 CFR Part 21 Administrative practice and procedure, Appeals, Bid protest regulations, Government contracts. For the reasons set out in the preamble, Title 4, Chapter I, Subchapter B, Part 21 of the Code of Federal Regulations is amended as follows: PART 21—BID PROTEST REGULATIONS 1. The authority citation for part 21 continues to read as follows: Authority: 31 U.S.C. 3551-3556. 2. Remove the words “a contracting agency” and “the contracting agency” wherever they appear and add in their place the words “an agency” or “the agency,” respectively. 3. Amend § 21.0, by revising paragraphs (a)(2), (b)(2), and (c); removing paragraph (d); and redesignating paragraph
(e)as paragraph (d), redesignating paragraph
(f)as paragraph (e), redesignating paragraph
(g)as paragraph
(f)and revising it, and redesignating paragraph
(h)as paragraph (g). The revisions read as follows: § 21.0 Definitions.
(1)* * *
(2)In a public-private competition conducted under Office of Management and Budget Circular A-76 regarding performance of an activity or function of a Federal agency, or a decision to convert a function performed by Federal employees to private sector performance without a competition under OMB Circular A-76, *interested party* also means
(A)The official responsible for submitting the Federal agency tender, and
(B)Any one individual, designated as an agent by a majority of the employees performing that activity or function, who represents the affected employees. (b)(1) * * *
(2)If an interested party files a protest in connection with a public-private competition conducted under OMB Circular A-76 regarding an activity or function of a Federal agency, the official responsible for submitting the Federal agency tender, or the agent representing the Federal employees as described in paragraph (a)(2)(B) of this section, or both, may also be *intervenors.*
(c)*Federal agency* or *agency* means any executive department or independent establishment in the executive branch, including any wholly owned government corporation, and any establishment in the legislative or judicial branch, except the Senate, the House of Representatives, and the Architect of the Capitol and any activities under his direction.
(f)A document is *filed* on a particular day when it is received by GAO by 5:30 p.m., Eastern Time, on that day. Protests and other documents may be filed by hand delivery, mail, commercial carrier, facsimile transmission (202-512-9749), or e-mail ( *protests@gao.gov* ). Please check GAO's Web site ( *http://www.gao.gov/legal/bidprotest.html* ) for current filing information. Hand delivery and other means of delivery may not be practicable during certain periods due, for example, to security concerns or equipment failures. The filing party bears the risk that the delivery method chosen will not result in timely receipt at GAO. 4. Amend § 21.1 by revising paragraph
(g)to read as follows: § 21.1 Filing a protest.
(g)Unless precluded by law, GAO will not withhold material submitted by a protester from any party outside the government after issuing a decision on the protest, in accordance with GAO's rules at 4 CFR part 81. If the protester believes that the protest contains information which should be withheld, a statement advising of this fact must be on the front page of the submission. This information must be identified wherever it appears, and the protester must file a redacted copy of the protest which omits the information with GAO and the agency within 1 day after the filing of its protest with GAO. 5. Amend § 21.3 by revising paragraphs (c), (d), and
(j)to read as follows: § 21.3 Notice of protest, submission of agency report, and time for filing of comments on report.
(c)The agency shall file a report on the protest with GAO within 30 days after the telephone notice of the protest from GAO. The report provided to the parties need not contain documents which the agency has previously furnished or otherwise made available to the parties in response to the protest. At least 5 days prior to the filing of the report, in cases in which the protester has filed a request for specific documents, the agency shall respond to the request for documents in writing. The agency's response shall, at a minimum, identify whether the requested documents exist, which of the requested documents or portions thereof the agency intends to produce, which of the requested documents or portions thereof the agency intends to withhold, and the basis for not producing any of the requested documents or portions thereof. Any objection to the scope of the agency's proposed disclosure or nondisclosure of documents must be filed with GAO and the other parties within 2 days of receipt of this list.
(d)The report shall include the contracting officer's statement of the relevant facts, including a best estimate of the contract value, a memorandum of law, and a list and a copy of all relevant documents, or portions of documents, not previously produced, including, as appropriate: the protest; the bid or proposal submitted by the protester; the bid or proposal of the firm which is being considered for award, or whose bid or proposal is being protested; all evaluation documents; the solicitation, including the specifications; the abstract of bids or offers; and any other relevant documents. In appropriate cases, a party may request that another party produce relevant documents, or portions of documents, that are not in the agency's possession.
(j)GAO may request or permit the submission of additional statements by the parties and by other parties participating in the protest as may be necessary for the fair resolution of the protest. The agency and other parties must receive GAO's approval before submitting any additional statements. GAO reserves the right to disregard material submitted without prior approval. 6. Amend § 21.4 by revising paragraphs
(b)and
(d)to read as follows: § 21.4 Protective orders.
(b)If no protective order has been issued, the agency may withhold from the parties those portions of its report that would ordinarily be subject to a protective order. GAO will review in camera all information not released to the parties.
(d)Any violation of the terms of a protective order may result in the imposition of such sanctions as GAO deems appropriate, including referral to appropriate bar associations or other disciplinary bodies, restricting the individual's practice before GAO, prohibition from participation in the remainder of the protest, or dismissal of the protest. 7. Amend § 21.5 by revising paragraph (b)(1) to read as follows: § 21.5 Protest issues not for consideration.
(b)*Small Business Administration issues.*
(1)Small business size standards and North American Industry Classification System (NAICS) standards. Challenges of established size standards or the size status of particular firms, and challenges of the selected NAICS code may be reviewed solely by the Small Business Administration. 15 U.S.C. 637(b)(6). 8. Revise § 21.6 to read as follows: § 21.6 Withholding of award and suspension of contract performance. Where a protest is filed with GAO, the agency may be required to withhold award and to suspend contract performance. The requirements for the withholding of award and the suspension of contract performance are set forth in 31 U.S.C. 3553(c) and (d); GAO does not administer the requirements to stay award or suspend contract performance under CICA at 31 U.S.C. 3553(c) and (d). 9. Amend § 21.12 by revising paragraph
(a)to read as follows: § 21.12 Distribution of decisions.
(a)Unless it contains protected information, a copy of a decision shall be provided to the protester, any intervenors, and the agency involved; a copy also shall be made available to the public. A copy of a decision containing protected information shall be provided only to the agency and to individuals admitted to any protective order issued in the protest. A public version omitting the protected information shall be prepared wherever possible. 10. Amend § 21.14 by revising paragraph
(c)to read as follows: § 21.14 Request for reconsideration.
(c)GAO will summarily dismiss any request for reconsideration that fails to state a valid basis for reconsideration or is untimely. To obtain reconsideration, the requesting party must show that our prior decision contains errors of either fact or law, or must present information not previously considered that warrants reversal or modification of our decision; GAO will not consider a request for reconsideration based on repetition of arguments previously raised. Gary L. Kepplinger, General Counsel, United States Government Accountability Office. [FR Doc. E8-12790 Filed 6-6-08; 8:45 am] BILLING CODE 1610-02-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Parts 301 and 305 [Docket No. APHIS-2007-0084] RIN 0579-AC57 Consolidation of the Fruit Fly Regulations AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Final rule. SUMMARY: We are amending the regulations to consolidate our domestic regulations regarding exotic fruit flies. Currently, these regulations are contained in six separate subparts, each of which covers a different species of fruit fly, and each of these subparts has parallel sections that are substantially the same as the corresponding sections in the other subparts. Therefore, we are combining these six subparts into a single subpart. We are also modifying the regulations by adding a mechanism through which quarantined areas can be removed from regulation expeditiously. These actions eliminate duplication and enhance the flexibility of our regulatory program. DATES: *Effective Date:* July 9, 2008. FOR FURTHER INFORMATION CONTACT: Mr. Wayne D. Burnett, Domestic Coordinator, Fruit Fly Exclusion and Detection Programs, PPQ, APHIS, 4700 River Road Unit 137, Riverdale, MD 20737-1234;
(301)734-4387. SUPPLEMENTARY INFORMATION: Background On September 18, 2007, we published in the **Federal Register** (72 FR 53171-53181, Docket No. APHIS-2007-0084) a proposal 1 to consolidate our domestic regulations regarding exotic fruit flies. These regulations have been maintained in six separate subparts, each of which covers a different species of fruit fly, and each of these subparts has parallel sections that are substantially the same as the corresponding sections in the other subparts, so we proposed to combine those six subparts into a single subpart. We also proposed to modify the regulations by adding a mechanism through which quarantined areas can be removed from regulation expeditiously. These actions eliminate duplication and enhance the flexibility of our regulatory program. Finally, we proposed to make irradiation available as a phytosanitary treatment for additional species of fruit flies. 1 To view the proposed rule and the comments we received, go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS=2007-0084.* We solicited comments concerning out proposal for 60 days ending November 19, 2007. We received two comments by that date. They were from a State agricultural agency and a private citizen. The comments supported the rule. One commenter did, however, suggest a few minor changes. They are discussed below. The commenter, noting that we had proposed to revise the definition of *core area* to describe an area within a circle surrounding each site where fruit flies have been detected using a 1/2 mile radius with the detection site as a center point, stated his agency had found that using a square-mile section around the find is more conducive to actual trap placement than a radius. As we stated in the proposed rule, our update to the definition of *core area* was intended to reflect the availability of GPS technology because we have determined that the use of GPS technology allows us to more accurately measure the distance from a positive detection site. Our change to the definition will not affect the ability of State or local agencies to carry out existing surveillance efforts or eradication treatment methods; it simply redefines the way we will identify the core area surrounding a detection site. In other words, this revision does not preclude State agencies from employing squared-off grids as a guide to place traps. The commenter also suggested we revise references to “all other fruit flies” or “other species of insects in the family Tephritidae” since there are more than 4,000 species of Tephritids and not all of them are pests. In the definition for *fruit fly (fruit flies)* found in the regulations, we specifically include “or other species of insects found in the family Tephritidae” in the definition because this reference provides us with the flexibility we need to regulate new fruit fly pests as the need arises; it does not mean that we consider all other species of insects found in the family Tephritidae to be pests. Similarly, while we do refer to “all fruit fly species of the Family Tephritidae” in § 305.2, “Approved treatments,” this does not mean that we consider all fruit flies species of the Family Tephritidae to be pests, only that the treatment has been shown to be effective against those species and has been approved for use. Finally, the commenter suggested we combine the three soil treatments mentioned in § 301.32-10, paragraph (a), because they appear to be the same. We agree that these three treatments can be combined into one and we have revised § 301.32-10(a) in the final rule accordingly. Quarantined Areas (§ 301.32-3) In this final rule, we have updated § 301.32-3, “Quarantined areas,” to incorporate a different approach to listing quarantined areas and notifying the public of changes to those areas. In the proposed rule, we described a mechanism by which we would quarantine an area by providing written notification to the affected entities in that area, and then follow up by amending the regulations to add a description of the quarantined area. When sufficient time passed without additional fruit fly detections and it was time to lift the quarantine, the affected entities would be notified and we would amend the regulations to remove the description of the quarantined area. Following the publication of the proposed rule, we amended 2 our regulations in 7 CFR part 301 by adding a new “Subpart-Potato Cyst Nematode” (§§ 301.86 through 301.86-9). In that new subpart, we employed a different approach to notifying the public about changes to quarantined areas. Rather than engaging in a process like that described in the previous paragraph, the new subpart describes the conditions under which fields will be added or removed from quarantine and uses the Internet and **Federal Register** notices inform the public of changes to the quarantined areas. When, for example, a field or area meets the criteria spelled out in the regulations for designation as a quarantined area, we publish a description of the quarantined area on a designated page on our Web site. The description of the quarantined area includes the date the description was last updated and a description of the changes that have been made to the quarantined area. The description of the quarantined area is also made available at any local office of the Agency's Plant Protection and Quarantine
(PPQ)program. After a change is made to a quarantined area, we publish a notice in the **Federal Register** informing the public that the change has occurred and describing the change to the quarantined area. 2 See 72 FR 51975-51099. Docket No. APHIS-2006-0143, published September 12, 2007, and effective on November 1, 2007. We believe that using this Internet- and notice-based approach will allow us to update and maintain the descriptions of quarantined areas under the consolidated fruit fly regulations with a greater degree of timeliness and efficiency than would be possible under the older approach. Our criteria for designating and releasing quarantined areas will remain the same as was described in the proposed rule; the difference will be in where the list of quarantined areas is maintained and how changes to the list will be communicated. Because we will not be publishing descriptions of quarantined areas in the regulations, we will be able to update them more quickly if a fruit fly population subject to the regulations is detected, thus allowing us to take prompt action to prevent the spread of the fruit fly population and provide necessary information to affected parties in a timely manner. Accordingly, the quarantined areas that appeared in the proposed regulations, as well as quarantined areas that have been added since the publication of the proposed rule, will no longer appear in the regulations, but can be found at the PPQ Web site, as mentioned above. We believe our description of the criteria by which quarantined areas will be designated and how the quarantined area will be determined will provide adequate notice regarding the criteria by which we will make changes to the quarantined area. Finally, in an interim rule published and effective on December 7, 2007 (72 FR 69137-69139, Docket No. APHIS-2007-0133), we added blueberries ( *Vaccinium* spp.) as a regulated article for Mediterranean fruit fly. We have updated § 301.32-2(a) in this final rule to reflect that addition. Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document. Executive Order 12866 and Regulatory Flexibility Act This final rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. We are combining the regulations regarding exotic fruit flies. These regulations, located in 7 CFR part 301, have been divided into separate subparts, each covering a different species of fruit fly and each containing parallel sections that are substantially similar to the corresponding sections in other subparts. This rule combines these sections into one subpart that will cover all fruit fly species. We are also modifying the regulations by adding a mechanism through which quarantined areas can be removed from regulation expeditiously and by expanding the availability of irradiation as a phytosanitary treatment. The consolidation of the 66 sections to 11 sections under the new “Subpart—Fruit Flies” allows us to eliminate the duplicative regulatory text. This change is an administrative one without any direct economic effect on any entity. The second change offers irradiation as one more treatment option for articles regulated because of Oriental, Melon, West Indian, or Sapote fruit flies. There are no areas currently quarantined because of any of these fruit fly species. If there were, the irradiation treatment option may benefit affected entities by providing them with an alternative means of treating regulated articles. We do not know how costs of irradiation treatment may compare to the costs of other treatments, but at least, entities now have a broader choice of options. The third change affects the interstate movement of regulated articles directly by allowing producers of those commodities in an area that has been under quarantine to more quickly resume moving articles without first having to obtain a certificate or limited permit. Entities that may benefit from this change include fresh fruit producers, nurserymen and tree growers, and transportation entities such as long distance general freight trucking with storage, scheduled freight air transportation companies, and/or short line railroad transportation companies. There are no significant alternatives to these actions; however, we do not anticipate that the economic effects of these actions will be significant. Any impacts on small entities would be attributable to the availability and the cost of irradiation as a treatment against all regulated fruit flies and to our ability to relieve quarantine-related restrictions on the interstate movement of regulated articles more quickly. The overall economic effects of these changes are expected to be positive, if minimal. We cannot estimate how many entities will be affected or what percentage of these entities will be small entities; those numbers depend entirely on the number and size of entities that might be present in a quarantined area at the time these provisions become effective or at any time thereafter. While the number of entities affected may eventually prove to be a large number of entities, most of which are likely to be small entities, the economic effects on those entities, while positive, would not be significant. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities. Executive Order 12372 This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.) Executive Order 12988 This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule:
(1)Preempts all State and local laws and regulations that are inconsistent with this rule;
(2)has no retroactive effect; and
(3)does not require administrative proceedings before parties may file suit in court challenging this rule. Paperwork Reduction Act This final rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects 7 CFR Part 301 Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation. 7 CFR Part 305 Irradiation, Phytosanitary treatment, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements. Accordingly, we are amending 7 CFR parts 301 and 305 as follows: PART 301—DOMESTIC QUARANTINE NOTICES 1. The authority citation for part 301 continues to read as follows: Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3. Section 301.75-15 issued under Sec. 204, Title II, Public Law 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 (7 U.S.C. 1421 note). 2. In part 301, a new “Subpart—Fruit Flies” (§§ 301.32 through 301.32-10) is added to read as follows: Subpart—Fruit Flies Sec. 301.32 Restrictions on interstate movement of regulated articles. 301.32-1 Definitions. 301.32-2 Regulated articles. 301.32-3 Quarantined areas. 301.32-4 Conditions governing the interstate movement of regulated articles from quarantined areas. 301.32-5 Issuance and cancellation of certificates and limited permits. 301.32-6 Compliance agreements and cancellation. 301.32-7 Assembly and inspection of regulated articles. 301.32-8 Attachment and disposition of certificates and limited permits. 301.32-9 Costs and charges. 301.32-10 Treatments. Subpart—Fruit Flies § 301.32 Restrictions on interstate movement of regulated articles.
(a)No person may move interstate from any quarantined area any regulated article except in accordance with this subpart. 1 1 Permit and other requirements for the interstate movement of any of the fruit flies regulated under this subpart are contained in part 330 of this chapter.
(b)Section 414 of the Plant Protection Act (7 U.S.C. 7714) provides that the Secretary of Agriculture may, under certain conditions, hold, seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of any plant, plant pest, plant product, article, or means of conveyance that is moving, or has moved into or through the United States or interstate if the Secretary has reason to believe the article is a plant pest or is infested with a plant pest at the time of movement. § 301.32-1 Definitions. *Administrator.* The Administrator, Animal and Plant Health Inspection Service, or any person authorized to act for the Administrator. *Animal and Plant Health Inspection Service.* The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture. *Certificate.* A document in which an inspector or person operating under a compliance agreement affirms that a specified regulated article is free of fruit flies and may be moved interstate to any destination. *Commercially produced.* Fruits and vegetables that an inspector identifies as having been produced for sale and distribution in mass markets. Such identification will be based on a variety of indicators, including, but not limited to: Quantity of produce, monocultural practices, pest management programs, good sanitation practices including destruction of culls, type of packaging, identification of grower or packinghouse on the packaging, and documents consigning the shipment to a wholesaler or retailer. *Compliance agreement.* A written agreement between APHIS and a person engaged in growing, handling, or moving regulated articles, wherein the person agrees to comply with this subpart. *Core area.* The area within a circle surrounding each site where fruit flies have been detected using a 1/2 -mile radius with the detection site as a center point. *Day degrees.* A unit of measurement used to measure the amount of heat required to further the development of fruit flies through their life cycle. Day-degree life cycle requirements are calculated through a modeling process specific for each species of fruit fly. *Departmental permit.* A document issued by the Administrator in which he or she affirms that interstate movement of the regulated article identified on the document is for scientific or experimental purposes and that the regulated article is eligible for interstate movement in accordance with § 301.32-4(c). *Dripline.* The line around the canopy of a plant. *Fruit fly (fruit flies).* The melon fruit fly, Mexican fruit fly, Mediterranean fruit fly, Oriental fruit fly, peach fruit fly, sapote fruit fly, or West Indian fruit fly, or other species of insects found in the family Tephritidae, collectively. *Infestation.* The presence of fruit flies or the existence of circumstances that makes it reasonable to believe that fruit flies are present. *Inspector.* Any employee of APHIS or other person authorized by the Administrator to enforce this subpart. *Interstate.* From any State into or through any other State. *Limited permit.* A document in which an inspector or person operating under a compliance agreement affirms that the regulated article identified on the document is eligible for interstate movement in accordance with § 301.32-5(b) only to a specified destination and only in accordance with specified conditions. *Mediterranean fruit fly.* The insect known as Mediterranean fruit fly, *Ceratitis capitata* (Wiedemann), in any stage of development. *Melon fruit fly.* The insect known as the melon fruit fly, *Bactrocera cucurbitae* (Coquillett), in any stage of development. *Mexican fruit fly.* The insect known as Mexican fruit fly, *Anastrepha ludens* (Loew), in any stage of development. *Move (moved, movement).* Shipped, offered to a common carrier for shipment, received for transportation or transported by a common carrier, or carried, transported, moved, or allowed to be moved. *Oriental fruit fly.* The insect known as Oriental fruit fly, *Bactrocera dorsalis* (Hendel), in any stage of development. *Peach fruit fly.* The insect known as peach fruit fly, *Anastrepha zonata* (Saunders), in any stage of development. *Person.* Any individual, partnership, corporation, association, joint venture, or other legal entity. *Plant Protection and Quarantine.* The organizational unit within the Animal and Plant Health Inspection Service that has been delegated responsibility for enforcing provisions of the Plant Protection Act and related legislation, quarantines, and regulations. *Quarantined area.* Any State, or any portion of a State, designated as a quarantined area in accordance with § 301.32-3. *Regulated article.* Any article listed in § 301.32-2 or otherwise designated as a regulated article in accordance with § 301.32-2(d). *Sapote fruit fly.* The insect known as the sapote fruit fly, *Anastrepha serpentina* , in any stage of development. *State.* Any of the several States of the United States, the Commonwealth of the Northern Mariana Islands, the Commonwealth of Puerto Rico, the District of Columbia, Guam, the Virgin Islands of the United States, or any other territory or possession of the United States. *West Indian fruit fly.* The insect known as the West Indian fruit fly, *Anastrepha obliqua* (Macquart), in any stage of development. § 301.32-2 Regulated articles.
(a)In the following table, the berry, fruit, nut, or vegetable listed in each row in the left column is a regulated article for each of the fruit fly species listed in that row in the right column, unless the article is canned, dried, or frozen below −17.8 °C (0 °F): Botanical name Common name(s) Fruit fly *Abelmoschus esculentus* = *Hibiscus esculentus* Okra Melon, Peach. *Acca sellowiana* = *Feijoa sellowiana* Pineapple guava Mediterranean, Oriental, Peach. *Actinidia chinensis* Kiwi Mediterranean. *Aegle marmelos* Indian bael Peach. *Anacardium occidentale* Cashew Oriental. *Annona cherimola* Cherimoya Mexican, Oriental, Peach. *Annona glabra* Pond-apple Sapote. *Annona muricata* Soursop Melon, Oriental, Peach. *Annona reticulata* Custard apple, Annona Melon, Mexican, Oriental, Peach. *Annona squamosa* Custard apple Peach. *Artocarpus altilis* Breadfruit Oriental. *Artocarpus heterophyllus* Jackfruit Oriental. *Averrhoa carambola* Carambola, Country gooseberry Oriental, West Indian. *Benincasa hispida* Melon, Chinese Melon. *Brassica juncea* Mustard, leaf Melon. *Brassica oleracea* var. *botrytis* Cauliflower Melon. *Brosimum alicastrum* Ramón West Indian. *Byrsonima crassifolia* Nance Sapote. *Calophyllum inophyllum* Alexandrian-laurel, Laurel Oriental. *Cananga odorata* Ylang-Ylang Oriental. *Capsicum annum* Pepper, chili Mediterranean, Melon, Oriental. *Capsicum frutescens* Pepper, tabasco Mediterranean, Melon. *Capsicum frutescens abbreviatum* Oriental bush red pepper Oriental. *Capsicum frutescens* var. *grossum* Pepper, sweet Oriental. *Carica papaya* Papaya Mediterranean, Melon, Oriental, Peach. *Carissa grandiflora* Natal plum Oriental. *Carissa macrocarpa* Natal plum Mediterranean. *Casimiroa edulis* Sapote, white Mediterranean. *Casimiroa greggii* = *Sargentia greggii* Sargentia, yellow chapote Mexican. *Casimiroa* spp Sapote Mexican. *Cereus coerulescens* Cactus Oriental. *Chrysophyllum cainito* Star apple Oriental, Sapote. *Chrysophyllum oliviforme* Caimitillo Oriental. *Citrofortunella japonica* Orange, calamondin Peach. *Citrullus colocynthis* Colocynth Melon. *Citrullus lanatus* = *Citrullus vulgaris* Watermelon Melon, Peach. *Citrullus* spp Melon Melon. *Citrus aurantiifolia* Lime Mediterranean, Mexican, 1 Oriental, Peach. *Citrus aurantium* Orange, sour Mediterranean, Mexican, Oriental, Peach. *Citrus jambhiri* Lemon, Rough Mediterranean. *Citrus latifolia* Lime, Persian Oriental. *Citrus limon* Lemon Mediterranean, 2 Mexican, 3 Oriental, Peach. *Citrus limon* x *reticulata* Lemon, Meyer Mediterranean. *Citrus madurensis* = x *Citrofortunella mitis* Orange, Panama Sapote. *Citrus maxima* = *Citrus grandis* Pummelo or Shaddock Mediterranean, Mexican, Oriental, Peach. *Citrus medica* Citrus citron Mediterranean, Mexican, Peach. *Citrus paradisi* Grapefruit Mediterranean, Melon, Mexican, Oriental, Peach. *Citrus reticulata* Mandarin orange, tangerine Mediterranean, Mexican, Oriental, Peach. *Citrus reticulata* var. *Unshu* Orange, Unshu Mediterranean, Oriental. *Citrus reticulata* x *C. sinensis* = *Citrus nobilis* Orange, king Mediterranean, Melon, Oriental, Peach. *Citrus reticulata* x *Fortunella* Orange, calamondin Mediterranean, Mexican, Oriental. *Citrus sinensis* Orange, sweet Mediterranean, Melon, Mexican, Oriental, Peach. *Citrus* spp Citrus Sapote. *Clausena lansium* Wampi Oriental. *Coccinia* spp Gourds Melon, Peach. *Coccoloba uvifera* Seagrape Oriental. *Coffea arabica* Coffee, Arabian Oriental. *Cresentia* spp Gourds Melon, Peach. *Cucumis melo* and *Cucumis melo* var. *Cantalupensis* Cantaloupe Melon, Peach. *Cucumis melo* var. *conomon* Melon, oriental pickling Melon. *Cucumis pubescens* and *Cucumis trigonus* Cucurbit Melon. *Cucumis sativus* Cucumber Melon, Oriental, Peach. *Cucumis utilissimus* Melon, long Peach. *Cucurbita maxima* Squash Melon. *Cucurbita moschata* Pumpkin, Canada Melon. *Cucurbita pepo* Pumpkin Melon. *Cydonia oblonga* Quince Mexican, Mediterranean, Oriental, Peach, Sapote. *Cyphomandra betaceae* Tomato, tree Melon. *Diospyros digyna* Black sapote Sapote. *Diospyros discolor* Velvet apple Oriental. *Diospyros khaki* Japanese persimmon Mediterranean, Oriental. *Diospyros* spp Sapote Sapote, West Indian. *Dovyalis hebecarpa* Kitembilla Oriental, Sapote, West Indian. *Dracena draco* Dragon tree Oriental. *Elaeocarpus angustifolius* Blue marbletree; New Guinea quandong Peach. *Elaeocarpus grandiflorus* Lily of the valley tree Peach. *Elaeocarpus madopetalus* Ma-kok-nam Peach. *Eriobotrya japonica* Loquat Mediterranean, Oriental, Peach, West Indian. *Eugenia brasiliensis* = *E. dombeyi* Brazil-cherry, grumichama Mediterranean, Oriental, Peach. *Eugenia malaccensis* Malay apple Oriental. *Eugenia uniflora* Surinam cherry Mediterranean, Oriental, Peach. *Euphoria longan* Longan Oriental. *Ficus benghalensis* Fig, Banyan Peach. *Ficus carica* Fig Mediterranean, Melon, Oriental, Peach. *Ficus macrophylla* Fig, Moreton Bay Peach. *Ficus retusa* Fig, glossy leaf Peach. *Ficus rubiginosa* Fig, Port Jackson Peach. *Ficus* spp Fig Peach. *Fortunella japonica* Chinese Orange, Kumquat Mediterranean, Oriental, Peach. *Garcinia celebica* Gourka Oriental. *Garcinia mangostana* Mangosteen Oriental. *Grewia asiatica* Phalsa Peach. *Jubaea chilensis* = *Jubaea spectabilis* Syrup palm Oriental. *Juglans hindsii* Walnut Oriental. *Juglans regia* Walnut, English Oriental. *Juglans* spp Walnut with husk Mediterranean. *Lablab purpureus* subsp. *purpureus* = *Dolichos lablab* Bean, hyacinth Melon. *Lagenaria* spp Gourds Melon, Peach. *Luffa acutangula* Gourd, ribbed or ridged, luffa Peach. *Luffa aegyptiaca* Gourd, smooth luffa, sponge Peach. *Luffa* spp Gourds Melon, Peach. *Luffa vulgaris* Gourd Peach. *Lychee chinensis* Lychee nut Oriental. *Lycopersicon esculentum* Tomato Mediterranean, Melon, 4 Oriental, 4 Peach 4 . *Madhuca indica* = *Bassia latifolia* Mahua, mowra-buttertree Peach. *Malpighia glabra* Cherry, Barbados Oriental, West Indian. *Malpighia punicifolia* West Indian cherry Oriental. *Malus sylvestris* Apple Mediterranean, Melon, Mexican, Oriental, Sapote, Peach. *Mammea americana* Mammy apple Mexican, Oriental, Peach, Sapote. *Mangifera foetida* Mango, Bachang Peach. *Mangifera indica* Mango All. *Mangifera odorata* Kuine Peach. *Manilkara hexandra* Sapodilla, balata Peach. *Manilkara jaimiqui* subsp. *emarginata* Sapodilla, wild Peach. *Manilkara zapota* Sapodilla, chiku Oriental, Peach, Sapote, West Indian. *Mimusops elengi* Spanish cherry Mediterranean, Oriental. *Momordica balsamina* Balsam apple, hawthorn Peach. *Momordica charantia* Balsam pear, bitter melon Peach. *Momordica cochinchinensis* Balsam apple, gac Peach. *Momordica* spp Gourds Melon, Peach. *Morus nigra* Mulberry Oriental. *Murraya exotica* Mock orange Mediterranean, Oriental. *Musa* x *paradisiaca* = *Musa paradisiaca* subsp. *sapientum* Banana Oriental. *Musa acuminata* = *Musa nana* Banana, dwarf Oriental. *Ochrosia elliptica* Orange, bourbon Peach. *Olea europea* Olive Mediterranean. *Opuntia ficus-indica* = *Opuntia megacantha* Prickly pear Oriental. *Opuntia* spp Opuntia cactus Mediterranean. *Passiflora edulis* Passionflower, passionfruit, yellow lilikoi Melon, Oriental, West Indian. *Passiflora laurifolia* Lemon, water Melon. *Passiflora ligularis* Granadilla, sweet Oriental. *Passiflora quadrangularis* Granadilla, giant West Indian. *Passiflora tripartita* var. *mollissima* Passionflower, softleaf Oriental. *Persea americana* Avocado Mediterranean, Melon, Mexican, Oriental, Peach, Sapote. *Phaseolus lunatus* = *Phaseolus limensis* Bean, lima Melon. *Phaseolus vulgaris* Bean, mung Melon. *Phoenix dactylifera* Date palm Mediterranean, Melon, Oriental, Peach. *Planchonia careya* = *Careya arborea* Patana oak, kumbhi Peach. *Pouteria caimito* Abiu Sapote. *Pouteria campechiana* Eggfruit tree Oriental, Sapote. *Pouteria obovata* Lucmo Sapote. *Pouteria viridis* Sapote, green Sapote. *Prunus americana* Plum, American Mediterranean, Mexican, Oriental, Peach. *Prunus armeniaca* Apricot Mediterranean, Mexican, Oriental, Peach. *Prunus avium* Sweet cherry Mediterranean, Peach. *Prunus cerasus* Sour cherry Mediterranean, Peach. *Prunus domestica* Plum, European Mediterranean, Mexican, Oriental, Peach. *Prunus dulcis* = *P. amygdalus* Almond with husk Mediterranean, Peach 5 . *Prunus ilicifolia* Cherry, Catalina Oriental, Peach. *Prunus lusitanica* Cherry, Portuguese Oriental, Peach. *Prunus persica* Peach All. *Prunus persica* var. *nectarine* Nectarine Mediterranean, Mexican, Oriental, Peach. *Prunus salicina* Japanese plum Mediterranean, Mexican, Peach, West Indian. *Prunus salicina* x *Prunus cerasifera* Methley plum Peach. *Psidium cattleianum* Strawberry guava, Cattley guava Mediterranean, Melon, Oriental. *Psidium cattleianum* var. *cattleianum f. lucidum* Yellow strawberry guava Peach. *Psidium cattleianum* var. * littorale* Red strawberry guava Oriental, West Indian, Peach. *Psidium guajava* Guava All. *Punica granatum* Pomegranate Mediterranean, Mexican, Oriental, Peach. *Pyrus communis* Pear All. *Pyrus pashia* Kaeuth Peach. *Pyrus pyrifolia* Pear, sand Peach. *Rhodomyrtus tomentosa* Myrtle, downy rose Oriental. *Sandoricum koetjape* Santol Oriental. *Santalum album* Sandalwood, white Oriental. *Santalum paniculatum* Sandalwood Oriental. *Sapotaceae* Sapota, Sapodilla Mexican. *Sechium edule* Chayote Melon. *Sesbania grandiflora* Scarlet wisteria tree Melon. *Sicyes* sp Cucumber, bur Melon. *Solanum aculeatissimum* Nightshade Peach. *Solanum mauritianum* = *S. auriculatum* Tobacco, wild Peach. *Solanum melongena* Eggplant Mediterranean, 6 Melon, Peach. *Solanum muricatum* Pepino Oriental, Peach. *Solanum pseudocapsicum* Jerusalem cherry Oriental, Peach. *Solanum seaforthianum* Nightshade, Brazilian Peach. *Solanum verbascifolium* Nightshade, Mullein Peach. *Spondias dulcis* = *Spondias cytherea* Otaheite apple, Jew plum Oriental, West Indian. *Spondias mombin* Hog-plum Sapote, West Indian. *Spondias purpurea* Red mombin Sapote, West Indian. *Spondias* spp Spanish plum, purple mombin or Ciruela Mexican. *Spondias tuberose* Imbu Oriental. *Syzygium aquem* Water apple, watery roseapple Peach. *Syzygium cumini* Java plum, jambolana Peach. *Syzygium jambos* = *Eugenia jambos* Rose apple Mediterranean, Mexican, Oriental, Peach, West Indian. *Syzygium malaccense* = *Eugenia malaccensis* Mountain apple, Malay apple Mediterranean, Peach, West Indian. *Syzygium samarangense* Java apple Peach. *Terminalia bellirica* Myrobalan, belleric Peach. *Terminalia catappa* Tropical almond Oriental, Peach. *Terminalia chebula* Myrobalan, black or chebulic Mediterranean, Oriental, Peach. *Thevetia peruviana* Yellow oleander Mediterranean, Oriental. *Trichosanthis* spp Gourds Melon, Peach. *Vaccinium* spp Blueberry Mediterranean. *Vigna unguiculata* Cowpea Melon. *Vitis* spp Grapes Mediterranean, Oriental. *Vitis trifolia* Grape Melon. *Wikstroemia phillyreifolia* Akia Oriental. *Ziziphus mauritiana* Chinese date, jujube Peach. 1 Sour limes are not regulated articles for Mexican fruit fly. 2 Smooth-skinned lemons harvested for packing by commercial packinghouses are not regulated articles for Mediterranean fruit fly. 3 Eureka, Lisbon, and Villa Franca cultivars (smooth-skinned sour lemon) are not regulated articles for Mexican fruit fly. 4 Only pink and red ripe tomatoes are regulated articles for melon, Oriental, and peach fruit flies. 5 Harvested almonds with dried husks are not regulated articles for peach fruit fly. 6 Commercially produced eggplants are not regulated articles for Mediterranean fruit fly.
(b)Plants of the following species in the family Curcurbitaceae are regulated articles for the melon fruit fly only: Cantaloupe ( *Cucumis melo* ) Chayote ( *Sechium edule* ) Colocynth ( *Citrullus colocynthis* ) Cucumber ( *Cucumis sativus* ) Cucumber, bur ( *Sicyes* spp.) Cucurbit ( *Cucumis pubescens* and *C. trigonus* ) Cucurbit, wild ( *Cucumis trigonus* ) Gherkin, West India ( *Cucumis angaria* ) Gourds ( *Coccinia, Cresentia, Lagenaria, Luffa, Momordica,* and *Trichosanthis* spp.) Gourd, angled luffa ( *Luffa acutangula* ) Gourd, balsam apple ( *Momordica balsaminia* ) Gourd, ivy ( *Coccinia grandis* ) Gourd, kakari ( *Momordica dioica* ) Gourd, serpent cucumber ( *Trichosanthis anguina* ) Gourd, snake ( *Trichosanthis cucumeroides* ) Gourd, sponge ( *Luffa aegyptiaca* ) Gourd, white flowered ( *Lagenaria siceraria* ) Melon, Chinese ( *Benincasa hispida* ) Melon, long ( *Cucumis utilissimus* ) Pumpkin ( *Cucurbita pepo* ) Pumpkin, Canada ( *Cucurbita moschata* ) Squash ( *Cucurbita maxima* ) Watermelon ( *Citrullus lanatus* = *Citrullus vulgaris* )
(c)Soil within the dripline of the plants listed in paragraph
(b)of this section or plants that are producing or have produced any article listed in paragraph
(a)of this section.
(d)Any other product, article, or means of conveyance not listed in paragraphs (a), (b), or
(c)of this section that an inspector determines presents a risk of spreading fruit flies, when the inspector notifies the person in possession of the product, article, or means of conveyance that it is subject to the restrictions of this subpart. § 301.32-3 Quarantined areas.
(a)*Designation of quarantined areas.* In accordance with the criteria listed in paragraph
(c)of this section, the Administrator will designate as a quarantined area each State, or each portion of a State, in which a fruit fly population subject to the regulations in this subpart has been found by an inspector, or in which the Administrator has reason to believe that a fruit fly population is present, or that the Administrator considers necessary to quarantine because of its inseparability for quarantine enforcement purposes from localities in which a fruit fly population has been found. The Administrator will publish the description of the quarantined area on the Plant Protection and Quarantine Web site, *http://www.aphis.usda.gov/plant_health/plant_pest_info/fruit_flies/index.shtml.* The description of the quarantined area will include the date the description was last updated and a description of the changes that have been made to the quarantined area. The description of the quarantined area may also be obtained by request from any local office of PPQ; local offices are listed in telephone directories. After a change is made to the quarantined area, we will publish a notice in the **Federal Register** informing the public that the change has occurred and describing the change to the quarantined area.
(b)*Designation of an area less than an entire State as a quarantined area.* Less than an entire State will be designated as a quarantined area only if the Administrator determines that:
(1)The State has adopted and is enforcing restrictions on the intrastate movement of the regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles; and
(2)The designation of less than the entire State as a quarantined area will prevent the interstate spread of the fruit fly.
(c)*Criteria for designation of a State, or a portion of a State, as a quarantined area.* A State, or a portion of a State, will be designated as a quarantined area when a fruit fly population has been found in that area by an inspector, when the Administrator has reason to believe that the fruit fly is present in that area, or when the Administrator considers it necessary to quarantine that area because of its inseparability for quarantine enforcement purposes from localities in which the fruit fly has been found.
(d)*Removal of a State, or a portion of a State, from quarantine.* A State, or a portion of a State, will be removed from quarantine when the Administrator determines that sufficient time has passed without finding additional flies or other evidence of infestation in the area to conclude that the fruit fly no longer exists in that area. § 301.32-4 Conditions governing the interstate movement of regulated articles from quarantined areas. Any regulated article may be moved interstate from a quarantined area 2 only if moved under the following conditions: 2 Requirements under all other applicable Federal domestic plant quarantines and regulations must also be met.
(a)With a certificate or limited permit issued and attached in accordance with §§ 301.32-5 and 301.32-8;
(b)Without a certificate or limited permit if:
(1)The regulated article originated outside the quarantined area and is either moved in an enclosed vehicle or is completely enclosed by a covering adequate to prevent access by fruit flies (such as canvas, plastic, or other closely woven cloth) while moving through the quarantined area; and
(2)The point of origin of the regulated article is indicated on the waybill, and the enclosed vehicle or the enclosure that contains the regulated article is not opened, unpacked, or unloaded in the quarantined area; and
(3)The regulated article is moved through the quarantined area without stopping except for refueling or for traffic conditions, such as traffic lights or stop signs.
(c)Without a certificate or limited permit if the regulated article is moved:
(1)By the United States Department of Agriculture for experimental or scientific purposes;
(2)Pursuant to a permit issued by the Administrator for the regulated article;
(3)Under conditions specified on the permit and found by the Administrator to be adequate to prevent the spread of fruit flies; and
(4)With a tag or label bearing the number of the permit issued for the regulated article attached to the outside of the container of the regulated article or attached to the regulated article itself if not in a container. (Approved by the Office of Management and Budget under control number 0579-0088) § 301.32-5 Issuance and cancellation of certificates and limited permits.
(a)A certificate may be issued by an inspector 3 for the interstate movement of a regulated article if the inspector determines that: 3 Services of an inspector may be requested by contacting local PPQ offices, which are listed in telephone directories. (1)(i) The regulated article has been treated under the direction of an inspector in accordance with § 301.32-10; or
(ii)Based on inspection of the premises of origin, the premises are free from fruit flies; or
(iii)Based on inspection of the regulated article, the regulated article is free of fruit flies; and
(2)The regulated article will be moved through the quarantined area in an enclosed vehicle or will be completely enclosed by a covering adequate to prevent access by fruit flies; and
(3)The regulated article is to be moved in compliance with any additional emergency conditions the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714) to prevent the spread of fruit flies; and
(4)The regulated article is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.
(b)An inspector 4 will issue a limited permit for the interstate movement of a regulated article if the inspector determines that: 4 See footnote 3.
(1)The regulated article is to be moved interstate to a specified destination for specified handling, processing, or utilization (the destination and other conditions to be listed in the limited permit), and this interstate movement will not result in the spread of fruit flies because life stages of the fruit flies will be destroyed by the specified handling, processing, or utilization;
(2)The regulated article is to be moved in compliance with any additional emergency conditions the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714) to prevent the spread of fruit flies; and
(3)The regulated article is eligible for interstate movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.
(c)Certificates and limited permits for the interstate movement of regulated articles may be issued by an inspector or person operating under a compliance agreement. A person operating under a compliance agreement may issue a certificate for the interstate movement of a regulated article if an inspector has determined that the regulated article is eligible for a certificate in accordance with paragraph
(a)of this section. A person operating under a compliance agreement may issue a limited permit for interstate movement of a regulated article when an inspector has determined that the regulated article is eligible for a limited permit in accordance with paragraph
(b)of this section.
(d)Any certificate or limited permit that has been issued may be withdrawn, either orally or in writing, by an inspector if he or she determines that the holder of the certificate or limited permit has not complied with all conditions in this subpart for the use of the certificate or limited permit. If the withdrawal is oral, the withdrawal and the reasons for the withdrawal will be confirmed in writing as promptly as circumstances allow. Any person whose certificate or limited permit has been withdrawn may appeal the decision in writing to the Administrator within 10 days after receiving the written notification of the withdrawal. The appeal must state all of the facts and reasons upon which the person relies to show that the certificate or limited permit was wrongfully withdrawn. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator. (Approved by the Office of Management and Budget under control number 0579-0088) § 301.32-6 Compliance agreements and cancellation.
(a)Any person engaged in growing, handling, or moving regulated articles may enter into a compliance agreement when an inspector determines that the person is aware of this subpart, agrees to comply with its provisions, and agrees to comply with all the provisions contained in the compliance agreement. 5 5 Compliance agreement forms are available without charge from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Emergency and Domestic Programs, 4700 River Road Unit 134, Riverdale, MD 20737-1236, and from local PPQ offices, which are listed in telephone directories.
(b)Any compliance agreement may be canceled, either orally or in writing, by an inspector whenever the inspector finds that the person who has entered into the compliance agreement has failed to comply with any of the conditions of this subpart or with any of the provisions of the compliance agreement. If the cancellation is oral, the cancellation and the reasons for the cancellation will be confirmed in writing as promptly as circumstances allow. Any person whose compliance agreement has been canceled may appeal the decision, in writing, within 10 days after receiving written notification of the cancellation. The appeal must state all of the facts and reasons upon which the person relies to show that the compliance agreement was wrongfully canceled. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator. § 301.32-7 Assembly and inspection of regulated articles.
(a)Any person, other than a person authorized to issue certificates or limited permits under § 301.32-5(c), who desires to move a regulated article interstate accompanied by a certificate or limited permit must notify an inspector 6 as far in advance of the desired interstate movement as possible, but no less than 48 hours before the desired interstate movement. 6 See footnote 3 to § 301.32-5(a).
(b)The regulated article must be assembled at the place and in the manner the inspector designates as necessary to comply with this subpart. § 301.32-8 Attachment and disposition of certificates and limited permits.
(a)A certificate or limited permit required for the interstate movement of a regulated article must, at all times during the interstate movement, be:
(1)Attached to the outside of the container containing the regulated article; or
(2)Attached to the regulated article itself if not in a container; or
(3)Attached to the consignee's copy of the accompanying waybill: Provided, however, that if the certificate or limited permit is attached to the consignee's copy of the waybill, the regulated article must be sufficiently described on the certificate or limited permit and on the waybill to identify the regulated article.
(b)The certificate or limited permit for the interstate movement of a regulated article must be furnished by the carrier to the consignee listed on the certificate or limited permit upon arrival at the location provided on the certificate or limited permit. (Approved by the Office of Management and Budget under control number 0579-0088) § 301.32-9 Costs and charges. The services of the inspector during normal business hours (8 a.m. to 4:30 p.m., Monday through Friday, except holidays) will be furnished without cost. The user will be responsible for all costs and charges arising from inspection and other services provided outside normal business hours. § 301.32-10 Treatments. Treatment schedules listed in part 305 of this chapter to destroy fruit flies are authorized for use on regulated articles. The following treatments also may be used for the regulated articles indicated:
(a)*Soil within the dripline of plants that are producing or have produced regulated articles listed § 301.32(a) or (b)* . The following soil treatments may be used: Apply diazinon at the rate of 5 pounds active ingredient per acre to the soil within the dripline with sufficient water to wet the soil to at least a depth of 0.5 inch. Both immersion and pour-on treatment procedures are also acceptable.
(b)*Premises* . Fields, groves, or areas that are located within a quarantined area but outside the infested core area and that produce regulated articles may receive regular treatments with either malathion or spinosad bait spray as an alternative to treating fruits and vegetables as provided in part 305 of this chapter. These treatments must take place at 6- to 10-day intervals, starting a sufficient time before harvest (but not less than 30 days before harvest) to allow for development of fruit fly egg and larvae. Determination of the time period must be based on the day degrees model for the specific fruit fly. Once treatment has begun, it must continue through the harvest period. The malathion bait spray treatment must be applied by aircraft or ground equipment at a rate of 2.4 oz of technical grade malathion and 9.6 oz of protein hydrolysate per acre. The spinosad bait spray treatment must be applied by aircraft or ground equipment at a rate of 0.01 oz of a USDA-approved spinosad formulation and 48 oz of protein hydrolysate per acre. For ground applications, the mixture may be diluted with water to improve coverage. Subpart—Mexican Fruit Fly Quarantine and Regulations [Removed] 3. Subpart—Mexican Fruit Fly Quarantine and Regulations, consisting of §§ 301.64 through 301.64-10, is removed. Subpart—Mediterranean Fruit Fly [Removed] 4. Subpart—Mediterranean Fruit Fly, consisting of §§ 301.78 through 301.78-10, is removed. Subpart—Oriental Fruit Fly [Removed] 5. Subpart—Oriental Fruit Fly, consisting of §§ 301.93 through 301.93-10, is removed. Subpart—Melon Fruit Fly [Removed] 6. Subpart—Melon Fruit Fly, consisting of §§ 301.97 through 301.97-10, is removed. Subpart—West Indian Fruit Fly [Removed] 7. Subpart—West Indian Fruit Fly, consisting of §§ 301.98 through 301.98-10, is removed. Subpart—Sapote Fruit Fly [Removed] 8. Subpart—Sapote Fruit Fly, consisting of §§ 301.99 through 301.99-10, is removed. PART 305—PHYTOSANITARY TREATMENTS 9. The authority citation for part 305 continues to read as follows: Authority: 7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3. 10. In § 305.2, the table in paragraph (h)(2)(ii) is amended by removing, in the entry for “Areas in the United States under Federal quarantine for the listed pest”, the entries for “Any fruit listed in § 301.64-2(a) of this chapter” and “Any article listed in § 301.78-2(a) of this chapter” and adding a new entry in their place to read as set forth below. § 305.2 Approved treatments.
(h)* * *
(2)* * *
(ii)* * * Location Commodity Pest Treatment schedule Areas in the United States under Federal quarantine for the listed pest. IR. * * * * * * * Any fruit or article listed in § 301.32-2(a) of this chapter All fruit fly species of the Family Tephritidae * * * * * * * § 305.32 [Amended] 11. Section 305.32 is amended as follows: a. In the section heading, by removing the words “Mexican fruit fly” and adding the words “fruit flies” in their place. b. In the introductory text, by removing the word “fruit” and adding the words “berry, fruit, nut, or vegetable” in its place, and by removing the citation “§ 301.64-2(a)” and adding the citation “§ 301.32-2(a)” in its place. c. In paragraph (a)(1), by removing the words “Mexican fruit fly” and adding the words “the fruit fly of concern” in their place, and by removing the words “the fruit” and adding the words “the regulated articles” in their place. d. In paragraph (a)(2), by removing the words “fruit, except that fruit” and adding the words “regulated articles, except that articles” in their place. e. In paragraph (a)(3), by removing the citation “§ 301.64-6” and adding the citation “§ 301.32-6” in its place. f. In paragraph (d), by removing the words “Mexican fruit fly” and adding the words “the fruit fly of concern” in their place. g. In paragraph (e)(2), by removing the words “Mexican fruit fly” and adding the words “the fruit fly of concern” in their place. h. In paragraph (i), by removing the words “Mexican fruit fly” and adding the words “fruit flies” in their place, and by adding the words “and vegetables” after the word “fruits”. i. In the OMB control number citation at the end of the section, by removing the control number “0579-0215” and adding the control number “0579-0088” in its place. § 305.33 [Removed and reserved] 12. Section 305.33 is removed and reserved. § 305.34 [Amended] 13. Section 305.34 is amended by redesignating footnotes 15 through 19 as footnotes 10 through 14, respectively. Done in Washington, DC, this 3rd day of June 2008. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E8-12858 Filed 6-6-08; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF HOMELAND SECURITY Bureau of Customs and Border Protection 8 CFR Part 217 [USCBP-2008-0003; CBP Dec. No. 08-18] RIN 1651-AA72 Changes to the Visa Waiver Program To Implement the Electronic System for Travel Authorization
(ESTA)Program AGENCY: Customs and Border Protection, DHS. ACTION: Interim final rule; solicitation of comments. SUMMARY: This rule amends Department of Homeland Security
(DHS)regulations to implement the Electronic System for Travel Authorization
(ESTA)requirements under section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, for aliens who wish to enter the United States under the Visa Waiver Program
(VWP)at air or sea ports of entry. This rule establishes ESTA and delineates the data fields DHS has determined will be collected by the system. As required under section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, the Secretary of Homeland Security will announce implementation of a mandatory ESTA system by publication of a notice in the **Federal Register** no less than 60 days before the date on which ESTA becomes mandatory for all VWP travelers. Once ESTA is mandatory, all VWP travelers must either obtain travel authorization in advance of travel under ESTA or obtain a visa prior to traveling to the United States. Currently, aliens from VWP countries must provide certain biographical information to U.S. Customs and Border Protection
(CBP)Officers at air and sea ports of entry on a paper form Nonimmigrant Alien Arrival/Departure (Form I-94W). Under this interim final rule, VWP travelers will provide the same information to CBP electronically before departing for the United States. Once ESTA is mandatory and all carriers are capable of receiving and validating messages pertaining to the traveler's ESTA status as part of the traveler's boarding status, DHS will eliminate the I-94W requirement. By automating the I-94W process and establishing a system to provide VWP traveler data in advance of travel, CBP will be able to determine the eligibility of citizens and eligible nationals from VWP countries to travel to the United States and whether such travel poses a law enforcement or security risk, before such individuals begin travel to the United States. ESTA will provide for greater efficiencies in the screening of international travelers by allowing CBP to identify subjects of potential interest before they depart for the United States, thereby increasing security and reducing traveler delays upon arrival at U.S. ports of entry. DATES: This interim final rule is effective on August 8, 2008. Comments must be received on or before August 8, 2008. ESTA will be implemented as a mandatory program 60 days after publication of a notice in the **Federal Register** . DHS anticipates that the Secretary of Homeland Security will issue that notice in November 2008, for implementation of the mandatory ESTA requirements on or before January 12, 2009. ADDRESSES: Please submit comments, identified by docket number, by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments via docket number USCBP-2008-0003. • *Mail:* Border Security Regulations Branch, Office of International Trade, Customs and Border Protection, 1300 Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229. • *Instructions:* All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to *http://www.regulations.gov* , including any personal information provided. • *Docket:* For access to the docket to read background documents or comments received, go to *http://www.regulations.gov.* Comments submitted will be available for public inspection in accordance with the Freedom of Information Act (5 U.S.C. 552) and 19 CFR 103.11(b) on normal business days between the hours of 9 a.m. and 4:30 p.m. at the Border Security Regulations Branch, Office of International Trade, United States Customs and Border Protection, 799 9th Street, NW., 5th Floor, Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at
(202)572-8768. FOR FURTHER INFORMATION CONTACT: Beverly Good, Office of Field Operations, *CBP.ESTA@dhs.gov* or (202)-344-3710. SUPPLEMENTARY INFORMATION: Table of Contents I. Public Comments II. Background A. The Visa Waiver Program B. Enhancing VWP Screening C. Implementing the Recommendations of the 9/11 Act of 2007 D. Electronic System for Travel Authorization 1. Obtaining Travel Authorization 2. Implementation Notice 3. Timeline for Submitting Travel Authorization Data 4. Required Travel Authorization Data Elements 5. Scope of ESTA 6. Duration a. General Rule b. Exception 7. Events Requiring New Travel Authorizations 8. Fee 9. Judicial Review 10. Privacy III. Statutory and Regulatory Requirements A. Administrative Procedure Act 1. Procedural Rule Exception 2. Good Cause Exception 3. Foreign Affairs Function Exception B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act of 1995 D. Executive Order 12866 E. Executive Order 13132 F. Executive Order 12988 Civil Justice Reform G. Paperwork Reduction Act H. Privacy Interests List of Subjects Amendments to the Regulations I. Public Comments Interested persons are invited to submit written comments on all aspects of this interim final rule. U.S. Customs and Border Protection
(CBP)also invites comments on the economic, environmental, or federalism effects of this rule. We urge commenters to reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authorities that support such recommended change. II. Background A. The Visa Waiver Program Pursuant to section 217 of the Immigration and Nationality Act (INA), 8 U.S.C. 1187, the Secretary of Homeland Security (the Secretary), in consultation with the Secretary of State, may designate certain countries as Visa Waiver Program
(VWP)countries if certain requirements are met. Those requirements include, without limitation,
(i)meeting the statutory rate of nonimmigrant visa refusal for citizens and nationals of the country,
(ii)a government certification that it has a program to issue machine readable, tamper-resistant passports that comply with International Civil Aviation Organization
(ICAO)standards,
(iii)a U.S. government determination that the country's designation would not negatively affect U.S. law enforcement and security interests, and
(iv)government agreement to report, or make available to the U.S. government information about the theft or loss of passports. The INA also sets forth requirements for continued eligibility and, where appropriate, emergency termination of program countries. Citizens and eligible nationals of VWP countries may apply for admission to the United States at a U.S. port of entry as nonimmigrant aliens for a period of ninety
(90)days or less for business or pleasure without first obtaining a nonimmigrant visa, provided that they are otherwise eligible for admission under applicable statutory and regulatory requirements. The list of countries which currently are eligible to participate in VWP is set forth in section 217.2(a) of Title 8 of the Code of Federal Regulations (CFR). To travel to the United States under VWP, an alien currently must
(1)present an electronic passport or a machine readable passport issued by a designated VWP participant country to the air or vessel carrier before departure; 1
(2)possess a round trip ticket; and
(3)upon arrival at a U.S. port of entry, submit to a CBP Officer a signed and completed I-94W Nonimmigrant Alien Arrival/Departure Form (I-94W). Additionally, the alien must comply with the inspection process at the U.S. port of entry and must not have violated the requirements of a prior VWP admission to the United States. *See* Section 217(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1187(a). *See also* 8 CFR part 217. 1 For current VWP member countries only, passports issued before October 26, 2006, need not contain the electronic chip that includes the biographic and biometric information of the passport holder provided the passports comply with International Civil Aviation Organization machine readable standards. Under VWP, nonimmigrant alien visitors currently are required to complete and sign an I-94W form prior to arriving at a U.S. port of entry and present it to the CBP Officer at the U.S. port of entry where they undergo admissibility screening. In signing the I-94W form, the traveler waives any right to review or appeal of a CBP Officer's determination as to his admissibility, or to contest, except on the basis of an application for asylum, any action in removal. The form instructs the alien to apply for a visa at the appropriate U.S. embassy or consulate if he or she responds in the affirmative to questions on the reverse side of the I-94W. For example, a traveler may be refused admission to the United States under VWP based upon an affirmative response on the I-94W regarding prior criminal activity, deportation, or visa revocation. Upon arrival at the U.S. port of entry, if the CBP Officer determines that the traveler seeking admission under VWP is ineligible to enter the United States, or is inadmissible based on the information submitted via the I-94W form, or information ascertained during an admissibility interview, then the person must then be returned to the country from which they departed at the carrier's expense. Pursuant to section 217 of the Immigration and Nationality Act (INA, 8 U.S.C. 1187), a VWP alien traveling to the United States by air or sea must arrive in the United States on a carrier that has signed an agreement with DHS guaranteeing to transport inadmissible or deportable VWP travelers out of the United States at no expense to the United States. This may create significant delays for the VWP traveler who may not have been on notice that he or she is not admissible to the United States until he or she has arrived at a U.S. port of entry. B. Enhancing VWP Screening While VWP encourages travel with participating countries, aspects of the program may be exploited by individuals seeking to circumvent immigration or other laws of the United States. Currently, VWP travelers are not subject to the same degree of screening as those travelers who must first obtain a visa before arriving in the United States. Since September 11, 2001, the visa issuance process has taken on greater significance as an antiterrorism tool. 2 Non-VWP travelers must obtain a visa from a U.S. embassy or consulate and undergo an interview by consular officials overseas who conduct a rigorous screening process in deciding whether to approve or deny a visa. At the U.S. consulate, the application is reviewed, fingerprints are collected, and the applicant's name is checked against various government watchlists. The consular officer reviews name check results and determines if additional security checks are required. The consular officer then interviews the visa applicant and reviews his or her supporting documents. During the visa application process, consular officers have ample time to interview applicants and examine the authenticity of their passports, and may also speak the visa applicant's native language. Every visa applicant undergoes extensive security checks before a visa can be issued, including name-based checks against the Department of State's (State Department's) Consular Lookout and Support System (CLASS). When a consular officer determines that an applicant is a positive match to a CLASS record, or if the applicant meets other established criteria, the case is referred for an interagency security review. If denied a visa, the individual cannot lawfully board a plane or vessel destined for the United States. 2 The Government Accountability Office
(GAO)has issued a series of reports on how the visa issuance process serves as an antiterrorism tool, including: GAO, Border Security: Strengthened Visa Process Would Benefit from Improvements in Staffing and Information Sharing, GAO-05-859 (Washington, DC: Sept. 13, 2005); Border Security: Actions Needed to Strengthen Management of Department of Homeland Security's Visa Security Program, GAO-05-801 (Washington, DC: July 29, 2005); and, Border Security: Visa Process Should be Strengthened as an Antiterrorism Tool, GAO-03-132NI (Washington, DC: Oct. 21, 2002). In contrast to travelers who require a visa and are screened by State Department consular officers through the visa issuance process, VWP travelers are not screened in person until they arrive at a U.S. port of entry. 3 Only after arrival at a U.S. port of entry are VWP travelers subject to an admissibility interview in which CBP Officers observe the applicant, examine his or her passport, collect the applicant's fingerprints as part of the U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) program, 4 and check his or her name against automated databases and watchlists (which contain information regarding the admissibility of aliens, including known terrorists, criminals, and immigration law violators). Thus, only after a VWP traveler has arrived at a U.S. port of entry is a CBP Officer able to determine whether the traveler is admissible to the United States, or ineligible for admission, based on the information submitted via the form I-94W and information ascertained during an admissibility interview. Annually, several thousand VWP travelers arrive in the United States and are deemed inadmissible for VWP entry at the port of entry, causing significant expense, delay, and inconvenience for those aliens, other travelers, the airlines, and the U.S. government. 3 Under the Advance Passenger Information System
(APIS)regulations, commercial aircraft carriers bound for the United States from a foreign port must transmit passenger and crew manifest information to CBP no later than 30 minutes prior to departure to allow CBP to vet such information against government databases, including the terrorist watchlist, prior to departure of the aircraft. Vessel carriers departing for the United States from a foreign port must transmit a passenger and crew manifest no later than 60 minutes prior to departure. *See* 19 CFR 122.49a. 4 The US-VISIT program is a government-wide program to collect, maintain, and share information on foreign nationals and better control and monitor the entry, visa status, and exit of visitors. Under the program, foreign visitors are required to submit to fingerprint scans of their right and left index finger and have a digital photograph taken upon arrival at U.S. ports of entry. (DHS recently has initiated a transition to collect scans of all ten fingers from travelers enrolling in the US-VISIT program.) Foreign nationals entering the United States through VWP are required to enroll in the US-VISIT program upon arrival at U.S. ports of entry. DHS has taken a number of steps to mitigate VWP security vulnerabilities in recent years, including instituting a biometric collection requirement for VWP travelers at U.S. ports of entry through US-VISIT. *See* 8 CFR part 235. The procedural and timing changes implemented under this interim final rule, as described below, represent crucial additional improvements to VWP security. C. Implementing the Recommendations of the 9/11 Commission Act of 2007 On August 3, 2007, the President signed into law the Implementing the Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Public Law 110-53. Section 711 of the 9/11 Act requires that the Secretary of Homeland Security, in consultation with the Secretary of State, develop and implement a fully automated electronic travel authorization system which will collect such biographical and other information as the Secretary determines necessary to evaluate, in advance of travel, the eligibility of the alien to travel to the United States, and whether such travel poses a law enforcement or security risk. ESTA is intended to fulfill the statutory requirements as described in Section 711 of the 9/11 Act. Section 711 of the 9/11 Act also provides the Secretary with discretion to expand VWP to additional countries by waiving the nonimmigrant visa refusal rate requirements in section 217 of the INA for countries that do not satisfy the required threshold. *See* Public Law 110-53, Section 711(c). To waive those requirements, the Secretary must certify to Congress that ESTA is “fully operational,” and that an air exit system (a separate requirement from ESTA) is in place that can verify the departure of not less than 97 percent of foreign nationals who exit through U.S. airports. 5 Additionally, according to the statute, the Secretary's waiver authority may be temporarily suspended if the Secretary does not notify Congress that a biometric air exit system is in place by June 30, 2009. 5 The Secretary will provide separate certification to Congress and neither this interim final rule nor its effective and compliance dates serve as that certification. D. Electronic System for Travel Authorization To satisfy the requirements of section 711 of the 9/11 Act, this interim final rule establishes ESTA to allow VWP travelers to obtain authorization to travel to the United States by air or sea prior to embarking on such travel. Under ESTA, CBP also will be able to screen travelers seeking to enter the United States under VWP prior to their arrival in the United States. Aliens intending to travel under the VWP will be able to obtain travel authorization in advance of travel to the United States. DHS notes that an authorization to travel to the United States under ESTA is not a determination that the alien ultimately is admissible to the United States. That determination is made by a CBP Officer only after an applicant for admission is inspected by the CBP officer at a U.S. port of entry. In addition, ESTA is not a visa or a process that acts in lieu of any visa issuance determination made by the Department of State. Travel authorization under ESTA allows a VWP participant to travel to the United States, and does not confer admissibility to the United States. ESTA, therefore, allows DHS to identify potential grounds of ineligibility for admission before the VWP traveler embarks on a carrier destined for the United States. ESTA will reduce the number of travelers who are determined to be inadmissible to the United States during inspection at a port of entry, thereby saving, among other things, the cost of return travel to the carrier, inspection time, and delays and inconvenience for the traveler. ESTA also will enable the U.S. government to better allocate existing resources towards screening passengers at U.S. ports of entry, thereby facilitating legitimate travel. ESTA increases the amount of information available to DHS regarding VWP travelers before such travelers arrive at U.S. ports of entry; and, by recommending that travelers submit such information a minimum of 72 hours in advance of departure, provides DHS with additional time to screen VWP travelers destined for the United States, thus enhancing security. 1. Obtaining Travel Authorization This interim final rule establishes data fields by which VWP travelers may electronically submit to CBP, in advance of travel to the United States, biographic and other information specified by the Secretary. The information specified by the Secretary is necessary to determine the eligibility of the alien to travel to the United States under the VWP, and whether such travel poses a law enforcement or security risk. This is the same information currently required on the form I-94W, which VWP travelers must present to a CBP officer at a port of entry. This interim final rule does not impose any new data collection requirements on air or vessel carriers. For example, this rule does not require air carriers to transmit any ESTA data elements on behalf of travelers to CBP, nor does it require carriers to submit any additional data. In determining a traveler's eligibility for ESTA authorization, CBP will assess each application to determine whether the alien is eligible to travel to the United States and whether there exists any law enforcement or security risk in permitting such travel under VWP. The information submitted by the alien in his/her travel authorization application will be checked by CBP against all appropriate databases, including, but not limited to, lost and stolen passport databases and appropriate watchlists. Additionally, if an alien does not provide the information required or provides false information in his travel authorization application or if any evidence exists indicating that an alien is ineligible to travel to the United States under VWP or that permitting such travel poses a law enforcement or security risk, CBP may deny the alien's application for a travel authorization. Consistent with section 711 of the 9/11 Act, the Secretary, acting through CBP, retains discretion to revoke a travel authorization determination at any time and for any reason. 8 U.S.C. 1187(h)(3)(C)(i). If an alien's travel authorization application is denied, the alien may still seek to obtain a visa to travel to the United States from the appropriate U.S. embassy or consulate. 2. Implementation Notice Under section 711 of the 9/11 Act, the Secretary also must publish a notice in the **Federal Register** , no less than 60 days before ESTA requirements are implemented. The Secretary will publish a notice in the **Federal Register** 60 days before ESTA is implemented as a mandatory requirement. DHS anticipates that the Secretary of Homeland Security will issue that notice in November 2008, for implementation of the mandatory ESTA requirements on or before January 12, 2009. 3. Timeline for Submitting Travel Authorization Data Once ESTA is implemented as a mandatory program, 60 days following publication of a notice in the **Federal Register** , each nonimmigrant alien wishing to travel to the United States under the VWP must have a travel authorization prior to embarking on a carrier. DHS, however, recommends that VWP travelers obtain travel authorizations at the time of reservation or purchase of the ticket, or at least 72 hours before departure to the United States, in order to facilitate timely departures. This timeline will allow accommodation of last minute and emergency travelers. 4. Required Travel Authorization Data Elements ESTA will collect the same information currently required on the Form I-94W that is presented to a CBP officer at a port of entry. *See* 8 U.S.C. 1187(h)(3). This is the information that the Secretary has deemed necessary to evaluate whether an alien is eligible to travel to the United States under VWP and whether such travel poses a law enforcement or security risk. This information is already collected through the I-94W form, which is presented to CBP when the alien arrives in the United States. On the I-94W form, aliens must provide biographical data such as name, birth date, and passport information, as well as travel information such as flight information and the address of the traveler in the United States. Travelers must also answer eligibility questions regarding, for example: communicable diseases, arrests and convictions for certain crimes, and past history of visa revocation or deportation. The information provided in the I-94W form is sufficient for CBP to initially determine if the applicant is eligible to travel under VWP before the alien commences travel to the United States. Therefore, DHS has decided to utilize the I-94W data elements by requiring them to be submitted in advance of travel under ESTA. In conjunction with CBP's final rule “Advance Electronic Transmission of Passenger and Crew Member Manifests for Commercial Aircraft and Vessels,” which was published in the **Federal Register** on August 23, 2007 (and became effective on February 19, 2008), DHS has been coordinating with commercial aircraft and commercial vessel carriers on the development and implementation of messaging capabilities for passenger data transmissions that will enable DHS to provide the carriers with messages pertaining to a passenger's boarding status. A prospective VWP traveler's ESTA status is a component of a passenger's boarding status that has been introduced into the plans for implementing messaging capabilities between DHS and the carriers. The development and implementation of the ESTA program will eventually allow DHS to eliminate the requirement that VWP travelers complete an I-94W prior to being admitted to the United States. As DHS moves towards elimination of the I-94W requirement, a VWP traveler with valid ESTA authorization will not be required to complete the paper Form I-94W when arriving on a carrier that is capable of receiving and validating messages pertaining to the traveler's ESTA status as part of the traveler's boarding status. Once all carriers are capable of receiving and validating messages pertaining to the traveler's ESTA status as part of the traveler's boarding status, DHS will eliminate the I-94W requirement. 5. Scope of ESTA Consistent with the 9-11 Act, an approved travel authorization only allows an alien to board a conveyance for travel to a U.S. port of entry and does not restrict, limit, or otherwise affect the authority of CBP to determine an alien's admissibility to the United States during inspection at a port of entry. 6. Duration a. General Rule Each travel authorization will be valid for a period of no more than two years. An alien may travel to the United States repeatedly within the validity period of the travel authorization using the same travel authorization. Travelers whose ESTA applications are approved, but whose passports will expire in less than two years, will receive travel authorization that is valid only until the expiration date on the passport. b. Exception Pursuant to 8 U.S.C. 1182(a)(7)(B)(i)(I) and implementing regulations at 8 CFR 214.1(a)(3)(i), the passport of an alien applying for admission must be valid for a minimum of six months from the expiration date of the contemplated period of stay. Certain foreign governments have entered into agreements with the United States whereby their passports are recognized as valid for the return of the bearer to the country of the foreign-issuing authority for a period of six months beyond the expiration date specified in the passport. These agreements have the effect of extending the validity period of the foreign passport an additional six months notwithstanding the expiration date indicated in the passport. The general rule applies to aliens who are citizens of countries that have entered into such an agreement. For aliens from countries that have not entered into such an agreement, 6 travel authorizations will be valid for a period of two years under ESTA. However, travel authorizations for aliens from countries that have not entered into such an agreement will not be approved beyond the six months prior to the expiration date of the alien's passport. Travelers from these countries whose passports will expire in six months or less will not receive an approved ESTA. 6 At this time, Brunei is the only VWP country that has not entered into such an agreement with the United States. The list of countries which have entered into such an agreement is available on the Department of State Web site at *http://foia.state.gov/masterdocs/09fam/0941104X1.pdf.* The Secretary, in his discretion, may issue a travel authorization for a different period of validity, not to exceed a period of three years. 7. Events Requiring New Travel Authorizations A VWP traveler must obtain a new travel authorization under ESTA in advance of travel to the United States if any of the following occur:
(1)The alien is issued a new passport;
(2)The alien changes his or her name;
(3)The alien changes his or her gender;
(4)The alien changes his or her country of citizenship; or
(5)The circumstances underlying the alien's previous responses to any of the ESTA application questions requiring a “yes” or “no” response (eligibility questions) have changed. 8. Fee As provided under section 711(h)(3)(B) of the 9/11 Act, the Secretary may charge aliens a fee to use ESTA. The fee is intended to cover the full costs of developing and administering the system. At this time, payment of a fee will not be required to obtain a travel authorization. If DHS determines at a later time, however, that collection of a fee is necessary for the efficient administration of ESTA, DHS will implement a fee through a separate rulemaking action or such other manner as is consistent with the Administrative Procedure Act and applicable statutory authorities. 9. Judicial Review Section 711 of the 9/11 Act expressly provides that “no court shall have jurisdiction to review an eligibility determination under the System.” Accordingly, a determination by DHS to not provide a traveler a travel authorization under ESTA will be final and, notwithstanding any other provision of the law, is not subject to judicial review. *See* 8 U.S.C. 217(h)(3)(C)(iv). 10. Privacy DHS will ensure that all Privacy Act requirements and policies are adhered to in the implementation of this rule and will be issuing a Privacy Act Impact Assessment that will fully outline processes that will ensure compliance with Privacy Act protections. III. Statutory and Regulatory Requirements A. Administrative Procedure Act 1. Procedural Rule Exception This interim final rule addresses requirements that are procedural in nature and does not alter the substantive rights of aliens from VWP countries seeking admission to the United States. This interim final rule, therefore, is exempt from notice and comment requirements under 5 U.S.C. 553(b)(A). This rule is procedural because it merely automates an existing reporting requirement for nonimmigrant aliens, as captured in the “I-94W Nonimmigrant Alien Arrival/Departure Form” pursuant to existing statutes and regulations. *See* 8 U.S.C. 1103, 1184 and 1187. *See also* 8 CFR 212.1, 299.1, 299.5 and Parts 2 and 217. By procedurally shifting the paper I-94W form to an electronic form and changing the timing of submission of such information to require travelers to submit the data to CBP in advance of travel, CBP will be able to determine, before the alien departs for the United States, the eligibility of citizens and eligible nationals from VWP countries to travel to the United States under VWP and whether such travel poses a law enforcement or security risk. This procedural change also benefits travelers as it allows CBP to identify potential grounds of ineligibility for admission before the traveler embarks on a carrier destined for the United States. 2. Good Cause Exception This interim final rule is also exempt from APA rulemaking requirements under the “good cause” exception set forth at 5 U.S.C. 553(b)(3)(B). By requiring VWP travelers, who currently are not screened in person until they arrive at a U.S. port of entry, to submit I-94W screening information in advance of their departure for the United States, DHS is better positioned to screen VWP aliens before they board carriers or vessels en route to the United States. This rule, therefore, improves the security of the VWP by addressing vulnerabilities in the program identified by GAO and implementing security enhancements included in section 711 of the 9/11 Act. Specifically, certain inadmissible travelers who need visas to enter the United States may attempt to acquire a passport from a VWP country to avoid the normal visa issuance procedures. Potential terrorists also may use VWP exemption from the visa screening process as a means to gain access to the United States or an aircraft en route to the United States to cause serious damage, injury, or death in the United States. Thus, implementation of this rule prior to notice and comment is necessary to protect the national security of the United States and to prevent potential terrorists from exploiting VWP. Prolonging the implementation of these regulations could hamper the ability of DHS to address the security vulnerabilities in the VWP and to take effective action to keep persons found by DHS to pose a security threat from entering the country under the VWP. Accordingly, DHS has determined that delaying implementing of this interim final rule to consider public comment rule would be impracticable, unnecessary and contrary to the public interest. 3. Foreign Affairs Function Exception This interim final rule is also excluded from the rulemaking provisions of 5 U.S.C. 553 as a foreign affairs function of the United States because it advances the President's foreign policy goals, involves bilateral agreements that the United States has entered into with participating VWP countries, and directly involves relationships between the United States and its alien visitors. Accordingly, DHS is not required to provide public notice and an opportunity to comment before implementing the requirements under this final rule. The Department, however, is interested in public comments on this interim final rule and ESTA and, therefore, is providing the public with the opportunity to comment without delaying implementation of this rule. Additionally, the public will continue to be provided opportunity to comment on changes to the Arrival and Departure Record, Forms I-94 and I-94W. These forms are in the process of being updated under the Paperwork Reduction Act. A **Federal Register** notice entitled “Proposed Collection; Comment Request; Arrival and Departure Record (Forms I-94 and I-94W),” was published in the **Federal Register** on November 9, 2007 (72 FR 63622). The 60-day comment period expired on January 8, 2008, and CBP has analyzed and responded to those comments received. Pursuant to the requirements of the Paperwork Reduction Act of 1995, CBP advised the public in this notice of its intention to revise its existing collection of information by adding an e-mail address and phone number to the I-94 and the I-94W forms under OMB Control Number 1651-0111. CBP published this 30-day notice document on February 4, 2008, in the **Federal Register** (73 FR 6522) and the comment period expired on March 5, 2008. We note that, upon publication for OMB approval, interested persons had an additional opportunity to provide comments to OMB on CBP's request for the addition of e-mail address and phone number and other data elements to update the I-94W form. All comments received will become a matter of the public record. B. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)(5 U.S.C. 603(b)), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities ( *i.e.* , small businesses, small organizations, and small governmental jurisdictions) when the agency is required “to publish a general notice of proposed rulemaking for any proposed rule.” Because this rule is being issued as an interim rule, on the grounds set forth above, a regulatory flexibility analysis is not required under the RFA. Nonetheless, DHS has considered the impact of this rule on small entities and had determined that this rule will not have a significant economic impact on a substantial number of small entities. The individual aliens to whom this rule applies are not small entities as that term is defined in 5 U.S.C. 601(6). Accordingly, there is no change expected in any process as a result of this rule that would have a direct effect, either positive or negative, on a small entity. C. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. D. Executive Order 12866 This interim final rule is considered to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, OMB has reviewed this regulation under that Executive Order. The purpose of ESTA is to allow DHS and CBP to establish the eligibility of certain foreign travelers to travel to the United States under the VWP, and whether the alien's proposed travel to the United States poses a law enforcement or security risk. Upon review of such information, DHS will determine whether the alien is eligible to travel to the United States under the VWP. Once ESTA is implemented as a mandatory program, 60 days following publication of a notice in the **Federal Register** , citizens and eligible nationals of the 27 countries in the current VWP must comply with this rule. The primary parameters for this analysis are as follows— • The period of analysis is 2008 to 2018. • Because the order in which countries will potentially be brought into VWP, and thus into ESTA, is unknown, we make the simplifying assumption for this analysis only that all affected travelers will comply with this rule beginning in 2009. • Air and sea carriers that transport these VWP travelers are not directly regulated under this rule; therefore, they are not responsible for completing ESTA applications on behalf of their passengers. However, carriers may choose to either modify their existing systems or potentially develop new systems to submit ESTA applications for their customers. For this analysis, we assume that carriers will incur system development costs in 2008 and will incur operation and maintenance costs every year thereafter. We note that CBP will transmit travelers' authorization status through CBP's existing Advance Passenger Information System (APIS), and therefore carriers may not have to make significant changes to their existing systems in response to this rule. Additionally, to minimize the potential impacts to air and sea carriers, CBP is developing a system that carriers will be able to use to submit applications on behalf of their passengers. • Under this rule, an initial travel authorization is valid for two years. We anticipate that travelers and carriers will update information via CBP's APIS requirements rather than requiring updated ESTA information on each entry during the two-year period. However, for purposes of this analysis, we assume that a travel authorization update would be required for each trip to the United States so as not to underestimate the potential economic impacts of this rule. Impacts to Air & Sea Carriers We estimate that eight U.S.-based air carriers and eleven sea carriers will be affected by the rule. An additional 35 foreign-based air carriers and five sea carriers will be affected. CBP intends to transmit each passenger's travel authorization status to the air carriers using CBP's Advance Passenger Information System (APIS). 7 When a passenger checks in for his/her flight, the passport is swiped and the APIS process begins. CBP will provide the passenger's travel authorization status to the carrier in the return APIS message. If a passenger has not applied for and received a travel authorization prior to check-in, the carrier will be able to submit the required information and obtain a travel authorization on behalf of the passenger. It is unknown how many passengers annually may request that their carrier apply for a travel authorization on their behalf or how much it will cost carriers to modify their existing systems to accommodate such requests. During the first years of implementation when passengers are not quite as familiar with the new process, the carriers could face a notable burden if most of their non-U.S. passengers require travel authorization applications to be carrier-transmitted. 7 See U.S. Customs and Border Protection final rule. “Advance Electronic Transmission of Passenger and Crew Member Manifests for Commercial Aircraft and Vessels,” 72 FR 48320 (Aug. 23, 2007). Given these unknowns, we have developed a range of costs. For the low end of the range, we assume that carriers will modify their existing systems, interface with CBP's system, and will help few passengers apply for travel authorizations annually. For the high end of the range, we assume that carriers will develop a new system (similar to APIS Quick Query, AQQ) and will assist many passengers annually. We assume that for an air carrier modifying its existing systems the cost would be $500,000 in the first year and $125,000 (25 percent of start-up costs) in subsequent years (low cost). The subsequent-year estimate is intended to account not only for annual operation and maintenance of the system but also for the burden incurred by the carriers to assist passengers. For an air carrier developing a new system, the cost would be $2 million in the first year and $2 million (100 percent of start-up costs) in subsequent years (high cost). Sea carriers have not previously developed an AQQ-like system, as they have been able to submit advance passenger data through the U.S. Coast Guard's Notice of Arrival/Departure system (called “eNOA/D”). For the low cost estimate, we assume that modifying systems would cost $1 million in the first year and $250,000 in subsequent years. For a sea carrier developing a new system, the cost would be $2 million in the first year and $2 million (100 percent of start-up costs) in subsequent years, as with air carriers. Given this range, should carriers undertake this effort, costs for U.S.-based carriers at the low end of the range would be about $9 million in the first year and $2 million in subsequent years (undiscounted). Costs for U.S.-based carriers at the high end of the range will be about $36 million in the first year and subsequent years (undiscounted). See Exhibit 1. Exhibit 1.—First Year and Annual Costs for Carriers To Address ESTA Requirements [$Millions, 2008-2018, undiscounted] Low cost scenario U.S. Air Sea Foreign Air Sea Total High cost scenario U.S. Air Sea Foreign Air Sea Total Carriers 8 11 35 5 59 8 11 35 5 59 2008 $4.0 $5.5 $35.0 $5.0 $49.5 $16.0 $22.0 $70.0 $10.0 $118.0 2009 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0 2010 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0 2011 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0 2012 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0 2013 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0 2014 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0 2015 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0 2016 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0 2017 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0 2018 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0 As estimated, ESTA could cost the carriers about $137 million to $1.1 billion (present value) over the next 10 years depending on how the carriers decide to assist passengers, how many passengers the carriers need to assist, and the discount rate applied (3 or 7 percent). See Exhibit 2. Exhibit 2.—Present Value Costs for Carriers to Address ESTA Requirements [$Millions, 2008-2018] Low cost scenario U.S. Air Sea Foreign Air Sea High cost scenario U.S. Air Sea Foreign Air Sea 3 percent discount rate 10-year subtotal $12.5 $17.2 $109.6 $15.7 $152.5 $209.7 $667.1 $95.3 10-year total $29.7 $125.3 $362.2 $762.4 10-year grand total $155.0 $1,124.6 Annualized subtotal $1.3 $1.8 $11.5 $1.6 $16.0 $22.0 $70.0 $10.0 Annualized total $3.1 $13.1 $38.0 $80.0 Annualized grand total $16.2 $118.0 7 percent discount rate 10-year subtotal $11.0 $15.2 $96.5 $13.8 $128.4 $176.5 $561.7 $80.2 10-year total $26.2 $110.3 $304.9 $641.9 10-year grand total $136.5 $946.8 Annualized subtotal $1.4 $1.9 $12.0 $1.7 $16.0 $22.0 $70.0 $10.0 Annualized total $3.3 $13.7 $38.0 $80.0 Annualized grand total $17.0 $118.0 Travel agents and other service providers may incur costs to assist their clients in obtaining travel authorizations. We do not know how many such service providers would be affected, but they would likely need to obtain a software module that allowed them to apply for travel authorizations during the booking process. Affected travel agents are most likely foreign businesses located in the affected countries. Impacts to Travelers ESTA will present new costs and burdens to travelers in VWP countries who were not previously required to submit any information to the U.S. Government in advance of travel to the United States. Travelers from Roadmap countries who become VWP will also incur costs and burdens, though these are much less than obtaining a nonimmigrant visa (category B1/B2), which is currently required for short-term pleasure or business to travel to the United States. For the primary analysis, we explore the following categories of costs. • Burden to obtain a travel authorization—the time that will be required to obtain a travel authorization and the value of that time (opportunity cost) to the traveler. • Cost and burden to obtain a visa if a travel authorization is denied—based on the existing process for obtaining a visa, the cost to obtain that document in the event that a travel authorization is denied and the traveler is referred to a U.S. Embassy. For this analysis, we have developed four methods to predict ESTA-affected travelers to the United States over the next 10 years using information available from the Department of Commerce, Office of Travel and Tourism Industries (OTTI), documenting historic travel levels and future projections. Method 1 employs the travel-projection percentages provided by OTTI and extrapolates them to the end of our period of analysis (OTTI projects travel only through 2010; we calculate a simple, straight-line extrapolation to 2018). Method 2 (modified OTTI projections) presents a more pessimistic outlook on travel: all projected percentages from Method 1 are reduced by 2 percent throughout the period of analysis. Methods 3 and 4 present more optimistic projections than Methods 1 and 2, but incorporated periodic downturns, which are prevalent (though not necessarily predictable) in international travel. See Exhibit 3. Exhibit 3.—Total Visitors to the United States Using Four Methodologies, 2008-2018 [Millions] 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 Method 1: VWP 17.4 18.0 18.7 19.4 20.0 20.7 21.3 21.9 22.4 23.0 23.5 Roadmap 1.2 1.2 1.3 1.3 1.4 1.4 1.5 1.5 1.5 1.6 1.6 Total 18.6 19.2 20.0 20.7 21.4 22.1 22.8 23.4 23.9 24.6 25.1 Method 2: VWP 17.0 17.4 17.7 17.9 18.2 18.4 18.6 18.7 18.8 18.9 18.9 Roadmap 1.1 1.2 1.2 1.2 1.2 1.3 1.3 1.3 1.3 1.3 1.3 Total 18.1 18.6 18.9 19.1 19.4 19.7 19.9 20.0 20.1 20.2 20.2 Method 3: VWP 17.4 18.0 18.7 19.4 17.7 20.7 24.1 27.4 26.0 30.1 34.1 Roadmap 1.2 1.2 1.3 1.3 1.2 1.4 1.7 2.0 2.3 2.9 2.7 Total 18.6 19.2 20.0 20.7 18.9 22.1 25.8 29.4 28.3 33.0 36.8 Method 4: VWP 17.4 15.9 18.5 21.6 24.5 23.3 26.9 30.5 35.6 33.9 38.6 Roadmap 1.2 1.0 1.3 1.5 1.8 2.1 2.0 2.3 2.9 3.3 4.0 Total 18.6 16.9 19.8 23.1 26.3 25.4 28.9 32.8 38.5 37.2 42.6 Burden To Obtain Travel Authorization Through ESTA To estimate the value of a non-U.S. citizen's time (opportunity cost), we have conducted a brief analysis that takes into account differing wage rates for countries that will be affected by the ESTA requirements. Based on this analysis, we found that countries in Western Europe, Oceania, and Japan generally have a higher value of time than the less developed countries of Eastern Europe and Asia. We also found that air travelers have a higher value of time than the general population. As we did previously for carriers, we develop a range of cost estimates for the value of an individual's time. For the low cost estimate, the hourly value of time ranges from $1.42 to $30.78 depending on the country. For the high cost estimate, the hourly value of time ranges from $3.00 to $65.19. We estimate that it will take 15 minutes of time (0.25 hours) to apply for a travel authorization. Note that this is approximately 5 minutes more than the time currently estimated to complete the I-94W (10 minutes). We estimate additional burden for a travel authorization application because even though the data elements and admissibility questions are identical, the traveler must now register with ESTA, familiarize himself/herself with the system, gather and enter the data, and access an e-mail account to check the status of his/ her travel authorization application. For those applicants who are computer savvy and have little difficulty navigating an electronic system, this may be a high estimate. For those applicants who are not as comfortable using computers and interfacing with Web sites, this may be a low estimate. We believe the burden estimate of 15 minutes is a reasonable average. Furthermore, if airlines, cruise lines, travel agents, and other service providers are entering the information on behalf of the passenger, it would almost certainly not take 15 minutes of time because these entities will have most of the information electronically as gathered during the booking process, and travel and ticket agents are certainly comfortable using computer applications. Because we do not know how many travelers will apply independently through the ESTA Web site versus through a third party, we assign a 15-minute burden to all travelers. Based on these values and assumptions, we estimate that total opportunity costs in 2009 (the first year that all travelers comply with the ESTA requirements in this analysis) will range from $86 million
(low)to $207 million
(high)depending on the number of travelers projected and the value of time used. By the end of the period of analysis, costs range from $102 million to $444 million. These estimates are all undiscounted. The range between the estimates broadens as differences in the projection methods are more discernable at the end of the period of analysis. See Exhibit 4. Exhibit 4.—Total Opportunity Costs for Visitors to the United States Using Four Methodologies, 2009 and 2018 [In $millions] 2009 Low estimate High estimate 2018 Low estimate High estimate Method 1 $98 $207 $127 $269 Method 2 94 199 102 217 Method 3 98 207 184 389 Method 4 86 182 210 444 As estimated, ESTA could cost travelers $700 million to over $2.6 billion (present value) over the next 10 years depending on the projection method, the value of opportunity cost, and the discount rate applied (3 or 7 percent). Annualized costs are an estimated $86 million to $270 million. See Exhibit 5. Exhibit 5.—Total Present Value and Annualized Opportunity Costs to Travelers, 2008-2018 Total present value benefits ($billions) Low estimate 3% 7% High estimate 3% 7% Annualized benefits ($millions) Low estimate 3% 7% High estimate 3% 7% Method 1 $0.957 $0.781 $2.026 $1.653 $100 $97 $213 $206 Method 2 0.844 0.693 1.788 1.468 89 86 188 183 Method 3 1.071 0.862 2.268 1.825 112 107 238 227 Method 4 1.216 0.972 2.574 2.058 128 121 270 257 Cost and Burden To Obtain a Visa if a Travel Authorization Is Denied Using the value of time estimates calculated above, we estimate the costs if a travel authorization is denied and the traveler is referred to the nearest U.S. Consulate to apply for a nonimmigrant visa (B1/B2). Absent country-specific information, we assume that it will require 5 hours of time to obtain a visa including time to complete the application, travel time, waiting at the Embassy for the interview, and the interview itself. There are also other incidental costs to consider, such as bank and courier fees, photographs, transportation, and other miscellaneous expenses. We estimate that these out-of-pocket costs will be $187. The number of travel authorizations that will be denied is unknown. For a country to have become part of the VWP originally, the visa refusal rate must have been no higher than 3 percent. Currently, the number of VWP travelers found inadmissible upon application for admission is low, only about 1 percent. ESTA, however, will likely affect a relatively small number of the current inadmissible individuals (see next section on benefits) because many individuals are denied entry for reasons that ESTA will not affect. For this analysis, we assume that 1 percent of ESTA applicants from current VWP travelers will subsequently need to apply for a visa. We do not account for visas that must be obtained in the event of an ESTA refusal for new VWP travelers because obtaining a visa is the baseline condition under which those travelers must currently operate in order to travel to the United States. We do, however, subtract out ESTA refusals in our benefits calculations (see next section) because these travelers do not accrue any benefit from ESTA. We multiply 1 percent of the annual travelers for each country by the burden (5 hours), the out-of-pocket expenses, and the value of time, either high or low. Total present value visa costs over the period of analysis could total $374 million to $916 million over the period of analysis. Annualized costs are an estimated $47 million to $96 million. See Exhibit 6. Exhibit 6.—Total Present Value and Annualized Visa Costs to Travelers, 2008-2018 Total present value benefits ($billions) Low estimate 3% 7% High estimate 3% 7% Annualized benefits ($millions) Low estimate 3% 7% High estimate 3% 7% Method 1 $0.517 $0.421 $0.724 $0.590 $54 $53 $76 $74 Method 2 0.456 0.374 0.639 0.525 48 47 67 65 Method 3 0.577 0.465 0.809 0.651 61 58 85 81 Method 4 0.654 0.523 0.916 0.733 69 65 96 91 Total Costs to Travelers Based on the above calculations, we estimate that the total quantified costs to travelers will range from $1.1 billion to $3.5 billion depending on the number of travelers, the value of time, and the discount rate. Annualized costs are estimated to range from $133 million to $366 million. See Exhibit 7. Exhibit 7.—Total Present Value and Annualized Costs to Travelers, 2008-2018 Total present value benefits ($billions) Low estimate 3% 7% High estimate 3% 7% Annualized benefits ($millions) Low estimate 3% 7% High estimate 3% 7% Method 1 $1.474 $1.202 $2.750 $2.244 $154 $150 $289 $280 Method 2 1.300 1.067 2.427 1.993 137 133 255 248 Method 3 1.648 1.327 3.077 2.476 173 165 323 308 Method 4 1.870 1.495 3.490 2.791 197 186 366 348 Conclusions We have shown that costs to air and sea carriers to support the requirements of the ESTA program could cost $137 million to $1.1 billion over the next 10 years depending on the level of effort required to integrate their systems with ESTA, how many passengers they need to assist in applying for travel authorizations, and the discount rate applied to annual costs. Costs to foreign travelers could total $1.1 billion to $3.5 billion depending on traveler volume, their value of time, and the discount rate applied. Benefits Inadmissibility By requiring passenger data in advance of travel, CBP may be able to determine, before the alien departs for the United States, the eligibility of citizens and eligible nationals from VWP countries to travel to the United States under the VWP, and whether such travel poses a law enforcement or security risk. In addition to fulfilling a statutory mandate, the rule serves the twin goals of promoting border security and legitimate travel to the United States. By modernizing the VWP, ESTA is intended to both increase national security and provide for greater efficiencies in the screening of international travelers by allowing for the screening of subjects of potential interest well before boarding, thereby reducing traveler delays based on potentially lengthy processes at U.S. ports of entry. ESTA will allow for advance screening of VWP travelers against all appropriate databases, including, but not limited to, lost and stolen passport databases and appropriate watchlists. Based on data from CBP, we estimate that 0.04 percent of affected individuals will be prevented from traveling to the United States as a result of the ESTA requirements. Currently, when ineligible travelers are brought to the United States, they are referred to secondary inspection where a CBP or other law enforcement officer questions them and processes them for return to their country of origin. CBP estimates that it requires 2 hours of time for questioning and processing at a cost of approximately $1,560 per individual. We estimate that removing an ineligible traveler costs carriers $1,500 per individual, which includes the air fare and any lodging and meal expenses incurred while the individual is awaiting transportation out of the United States. Based on these estimates, we calculate that benefits to CBP would total $85 million to $151 million over the period of analysis depending on the traveler projection method and the discount rate applied. Benefits to carriers could total $82 million to $146 million. Annualized benefits range from $17 million to $29 million. See Exhibit 8. Exhibit 8.—Benefits of Annual Admissions Denied Attributable to ESTA, 2008-2018 [In $millions] Total admissions denied 3% discount rate Benefits to CBP Benefits to carriers Total benefits Annualized benefits 7% discount rate Benefits to CBP Benefits to carriers Total benefits Annualized benefits Method 1 89,000 $118 $113 $231 $23 $96 $92 $188 $19 Method 2 78,000 104 100 204 21 85 82 167 17 Method 3 102,000 133 128 261 26 107 103 210 21 Method 4 117,000 151 146 297 29 121 116 237 23 Additionally, asking questions regarding eligibility for admission prior to travel to the United States may keep some VWP travelers from arriving at a United States port of entry only to then be deemed inadmissible. This rule would provide benefits to CBP and the carriers for those travelers who answer “yes” to any of the eligibility questions who are then deemed inadmissible and must be transported back to their country of origin. It is not known how many entries like this occur on an annual basis, and we are thus unable to quantify the benefits to CBP or the carriers of forgoing such occurrences. Benefits of Not Having To Obtain Visas The benefits of not having to obtain a B1/B2 visa, but rather obtaining a travel authorization are also quantifiable. These benefits will be realized only by travelers who are citizens of countries that enter the Visa Waiver Program in the future. We must first determine how many travelers are repeat versus first-time travelers in order not to double count benefits from not having to obtain a visa. We estimate the number of first-time visitors under each of the four methods of projecting travelers. Then we estimate a percentage of repeat travelers who would also need to have visas because their old visa will expire during the next 10 years. All of the Roadmap visitors are eligible for 10-year B1/B2 visas, and we thus assume that 10 percent of repeat visitors would have to reapply for visas were it not for the rule. Finally, we subtract out those who are denied a travel authorization and must apply for a visa instead (see previous section on costs). Benefits of forgoing visa are expected to range from about $619 million to $1.6 billion (present value) over 10 years depending on the travel level, the value of time used, and the discount rate applied. Annualized benefits range from $77 million to $167 million. See Exhibit 9. Exhibit 9.—Total Present Value and Annualized Benefits of Forgoing Visas, 2008-2018 Total present value benefits ($billions) Low estimate 3% 7% High estimate 3% 7% Annualized benefits ($millions) Low estimate 3% 7% High estimate 3% 7% Method 1 $0.856 $0.697 $1.042 $0.850 $90 $87 $109 $106 Method 2 0.755 0.619 0.920 0.754 79 77 96 84 Method 3 1.053 0.838 1.290 1.026 111 105 135 128 Method 4 1.293 1.019 1.588 1.251 136 127 167 156 Benefits of Not Having To Complete the I-94W and I-94 Forms We can also quantify the benefits of not having to complete the I-94W paper form. These benefits will accrue to all travelers eventually covered by ESTA as the requirement to present a paper I-94W is eliminated. The estimated time to complete either the I-94W or I-94 is 10 minutes (0.17 hours). We then subtract out those travelers who are not able to obtain a travel authorization through ESTA (see previous section on costs) and then apply a low and high value of time to the burden to estimate total savings that are expected to be accrued as a result of this rule. Benefits of not having to complete the paper forms are expected to range from $457 million to $1.7 billion over 10 years depending on the value of time used and the discount rate applied. Annualized benefits range from $57 million to $178 million. See Exhibit 10. Exhibit 10.—Total Present Value and Annualized Benefits of Forgoing the I-94W, 2008-2018 Total present value benefits ($billions) Low estimate 3% 7% High estimate 3% 7% Annualized benefits ($millions) Low estimate 3% 7% High estimate 3% 7% Method 1 $0.636 $0.519 $1.336 $1.090 $67 $65 $140 $136 Method 2 0.557 0.457 1.179 0.968 58 57 124 121 Method 3 0.706 0.568 1.495 1.203 74 71 157 150 Method 4 0.801 0.641 1.697 1.357 84 80 178 169 In addition to these benefits to travelers, CBP and the carriers should also experience the benefit of not having to administer the I-94W. While CBP has not conducted an analysis of the potential savings, it should accrue benefits from not having to produce, ship, and store blank forms. CBP should also be able to accrue savings related to data entry and archiving. Carriers should realize some savings as well, though carriers will still have to administer the I-94 for those passengers not traveling under the VWP and the Customs Declaration forms for all passengers aboard the aircraft and vessel. Total Benefits to Travelers Total benefits to travelers could total $1.1 billion to $3.3 billion over the period of analysis. Annualized benefits could range from $134 million to $345 million. See Exhibit 11. Exhibit 11.—Total Present Value and Annualized Benefits to Travelers, 2008-2018 [10-year costs in $billions; annualized costs in $millions] Total present value benefits ($billions) Low estimate 3% 7% High estimate 3% 7% Annualized benefits ($millions) Low estimate 3% 7% High estimate 3% 7% Method 1 $1.492 $1.216 $2.378 $1.940 $157 $152 $249 $242 Method 2 1.312 1.076 2.099 1.722 137 134 220 215 Method 3 1.759 1.406 2.785 2.229 185 176 292 278 Method 4 2.094 1.660 3.285 2.608 220 207 345 325 Benefits of Enhanced Security As set forth in section 711 of the 9/11 Act, it was the intent of Congress to modernize and strengthen the security of the VWP under section 217 of the Immigration and Nationality Act (INA, 8 U.S.C. 1187) by simultaneously enhancing program security requirements and extending visa-free travel privileges to citizens and eligible nationals of eligible foreign countries that are partners in the war on terrorism. In previous DHS analyses, a “breakeven” analysis has been conducted in the absence of information regarding baseline risks of terrorist attacks and risk reduced as the result of a regulatory action. Such an analysis was conducted for CBP's final rule implementing enhancements to APIS (this rule is familiarly referred to as APIS 30/AQQ). 8 The APIS 30/AQQ and the ESTA rules essentially have the same objective: Prevent a traveler who has been matched to an individual on a government watchlist from boarding an aircraft or passenger vessel bound for the United States. This layered approach is a key component of the DHS and CBP goal of safe and secure travel. However, if we were to conduct a breakeven analysis for ESTA without taking into account the breakeven analysis for APIS 30/AQQ, we would be double-counting security benefits, though the extent is unknown. The APIS 30/AQQ analysis accounted for identifying a traveler of concern prior to the issuance of a boarding pass. Thus, we must not take credit for preventing a traveler from boarding an aircraft as a result of ESTA because that benefit has already been counted. We have not conducted a breakeven analysis for this rule because CBP has already accounted for preventing a traveler on a watchlist from boarding an aircraft and coming to the United States. This does not mean, however, that there are no security benefits of this rule—we simply have not quantitatively accounted for them here. 8 See 72 FR 48320, 48339. Annualized costs and benefits are presented in the following accounting statement, as required by OMB Circular A-4. Accounting Statement: Classification of Expenditures, 2008-2018 [$2008] 3% discount rate 7% discount rate Costs: Annualized monetized costs $16 million to $118 million $17 million to $118 million. Annualized quantified, but un-monetized costs None quantified None quantified. Qualitative (un-quantified) costs Indirect costs to the travel and tourism industry Indirect costs to the travel and tourism industry. Benefits: Annualized monetized benefits $21 million to $29 million $17 million to $23 million. Annualized quantified, but un-monetized benefits None quantified None quantified. Qualitative (un-quantified) benefits Enhanced security and efficiency Enhanced security and efficiency. We estimate that the annualized costs of this rule will be $16 million to $118 million. These costs are for U.S. and foreign-based air and sea carriers. Quantified benefits of $17 million to $29 million to carriers and CBP are for annual travel authorizations denied by ESTA that prevent inadmissible persons from applying for admission under the VWP at a United States port of entry. Firms participating in the U.S. economy may also face unquantified or indirect burdens if, for example, U.S. travel agents invest in resources to assist their foreign clients in obtaining a travel authorization, if the requirements lead to trips forgone, or if the requirements lead to increased queues in airports or seaports. Under the simplifying assumption for this analysis only that all affected travelers, including those from roadmap countries, will comply with this rule beginning in 2009, there are quantified benefits to those travelers from Roadmap countries who no longer need to obtain a visa to visit the United States. In addition, there are quantified benefits for all ESTA participants who no longer need to complete I-94W forms. Because these benefits accrue to foreign entities, however, we do not include them in the accounting statement. Non-quantified benefits are enhanced security and efficiency. Regulatory Alternatives We consider three alternatives to this rule— • The ESTA requirements in the rule, but with a $1.50 fee per each travel authorization (more costly) • The ESTA requirements in the rule, but with only the name of the passenger and the admissibility questions on the I-94W form (less burdensome) • The ESTA requirements in the rule, but only for the countries entering the VWP after 2009 (no new requirements for VWP, reduced burden for newly entering countries) Because this rule only directly affects travelers, these alternatives only directly affect travelers, not air and sea carriers. The first alternative would create additional burden for carriers, who would potentially need to collect credit card information and the fee to cover the costs of the ESTA application. The second alternative would create less burden for the carriers because the biographic information would not be included. The third alternative would be less costly and burdensome for the carriers who would now not need to handle as many ESTA participants. Because the range of high and low cost estimates for carriers presented is so broad in the primary analysis (see previous section), we do not estimate carrier costs for these alternatives. The comparison of alternatives, therefore, is just for affected travelers. For the sake of brevity, we present the 10-year present value cost of the rule and these alternatives for the high value estimates, Method 1 traveler projection, at the 7 percent discount rate only. Benefits are expressed as negative values in this presentation See Exhibit 12. Exhibit 12.—Comparison of 10-Year Impacts of the Rule and Regulatory Alternatives, 2008-2018, in $billions, Method 1, High Estimate, 7 Percent Discount Rate Rule Alternative 1 Alternative 2 Alternative 3 ESTA burden $1.653 $1.653 $1.102 $0.045. Visa costs 0.591 0.591 0.591 0. ESTA fee 0 0.231 0 0. Benefit of no visa (0.850) (0.850) (0.850) (0.850). Benefit of no I-94W (1.090) (1.090) (1.090) (0.030). Net impact $0.304 $0.535 ($0.247) ($0.835). Comment Fee will not be charged at this time All data elements are required for proper screening Does not meet statutory requirements. DHS has determined that the rule provides the greatest level of enhanced security and efficiency at an acceptable cost to the traveling public and potentially affected air carriers. E. Executive Order 13132 The rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, DHS has determined that this interim final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. F. Executive Order 12988 Civil Justice Reform This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. G. Paperwork Reduction Act These regulations are being issued without prior notice and public procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). For this reason, the collection of information contained in these regulations has been reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget
(OMB)in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, under Control Number 1651-0111. The information collection provisions of this regulation are in §§ 212.1 and 217.5 of the CFR. CBP will use the information collected under this rule to determine the eligibility of nonimmigrant aliens to travel to the United States under the VWP so as to enhance border security and streamline entry processes at U.S. ports of entry. The respondents to this collection are non-U.S. citizen travelers to the United States. When the Secretary publishes notice in the **Federal Register** that each alien wishing to travel to the United States by air or sea must apply for and obtain ESTA authorization prior to such travel, under 8 CFR 217.5, any nonimmigrant alien wishing to travel to the United States by air or sea under VWP would be required in advance to have a travel authorization before embarking on a carrier for travel to the United States. To obtain a travel authorization, travelers must provide to CBP via a CBP Web site an application consisting of biographic and other information specified by the Secretary of Homeland Security as necessary to determine the eligibility of the alien to travel to the United States under the VWP, and whether such travel poses a law enforcement or security risk. The collection of information regarding the I-94W Form procedures was previously reviewed and approved by OMB in accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) under OMB Control Number 1651-0111, and its renewal is currently being vetted through **Federal Register** notice as discussed in the document. An agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB. The additional respondents and burden estimates for this collection are as follows: *Estimated annual reporting and/or recordkeeping burden:* 4,225,000 hours. *Estimated average annual burden per respondent/recordkeeper:* 15 minutes (0.25 hours). *Estimated number of respondents and/or recordkeepers:* 17,000,000. *Estimated annual frequency of responses:* Once per year. The estimated annual public cost for ESTA is $63.8 million. This is based on the number of responses (17,000,000) × a response time of 15 minutes × an average hourly rate of $15 = $63.8 million. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Management and Budget, Attention: Desk Officer for the Department of Homeland Security, Office of Information and Regulatory Affairs, Washington, DC 20503. A copy should also be sent to the Border Security Regulations Branch, Bureau of Customs and Border Protection, 1300 Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229. H. Privacy Interests DHS will be publishing a Privacy Impact Assessment
(PIA)on its Web site. DHS also is preparing a separate SORN for publication in conjunction with this interim final rule. List of Subjects in 8 CFR Part 217 Air carriers, Aliens, Maritime carriers, Passports and visas. Amendments to the Regulations For the reasons stated in the preamble, DHS amends part 217 of title 8 of the Code of Federal Regulations (8 CFR part 217), as set forth below. PART 217—VISA WAIVER PROGRAM 1. The general authority citation for part 217 continues to read as follows: Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2. 2. A new § 217.5 is being added to read as follows: § 217.5 Electronic System for Travel Authorization.
(a)*Travel authorization required.* Each nonimmigrant alien intending to travel by air or sea to the United States under the Visa Waiver Program
(VWP)must, within the time specified in paragraph
(b)of this section, receive a travel authorization, which is a positive determination of eligibility to travel to the United States under the VWP via the Electronic System for Travel Authorization (ESTA), from CBP. In order to receive a travel authorization, each nonimmigrant alien intending to travel to the United States by air or sea under the VWP must provide the data elements set forth in paragraph
(c)of this section to CBP, in English, in the manner specified herein.
(b)*Time.* Each alien falling within the provisions of paragraph
(a)of this section must receive a travel authorization prior to embarking on a carrier for travel to the United States.
(c)*Required elements.* ESTA will collect such information as the Secretary deems necessary to issue a travel authorization, as reflected by the I-94W Nonimmigrant Alien Arrival/Departure Form (I-94W).
(d)*Duration.*
(1)*General Rule.* A travel authorization issued under ESTA will be valid for a period of two years from the date of issuance, unless the passport of the authorized alien will expire in less than two years, in which case the authorization will be valid until the date of expiration of the passport.
(2)*Exception.* For travelers from countries which have not entered into agreements with the United States whereby their passports are recognized as valid for the return of the bearer to the country of the foreign-issuing authority for a period of six months beyond the expiration date specified in the passport, a travel authorization issued under ESTA is not valid beyond the six months prior to the expiration date of the passport. Travelers from these countries whose passports will expire in six months or less will not receive a travel authorization.
(e)*New travel authorization required.* A new travel authorization is required if any of the following occur:
(1)The alien is issued a new passport;
(2)The alien changes his or her name;
(3)The alien changes his or her gender;
(4)The alien's country of citizenship changes; or
(5)The circumstances underlying the alien's previous responses to any of the ESTA application questions requiring a “yes” or “no” response (eligibility questions) have changed.
(f)*Limitations.*
(1)*Current authorization period.* An authorization under ESTA is a positive determination that an alien is eligible, and grants the alien permission, to travel to the United States under the VWP and to apply for admission under the VWP during the period of time the travel authorization is valid. An authorization under ESTA is not a determination that the alien is admissible to the United States. A determination of admissibility is made only after an applicant for admission is inspected by a CBP Officer at a U.S. port of entry.
(2)*Not a determination of visa eligibility.* A determination under ESTA that an alien is not eligible to travel to the United States under the VWP is not a determination that the alien is ineligible for a visa to travel to the United States and does not preclude the alien from applying for a visa before a United States consular officer.
(3)*Judicial review.* Notwithstanding any other provision of law, a determination under ESTA is not subject to judicial review pursuant to 8 U.S.C. 217(h)(3)(C)(iv).
(4)*Revocation.* A determination under ESTA that an alien is eligible to travel to the United States to apply for admission under the VWP may be revoked at the discretion of the Secretary.
(g)*Compliance date.* Once ESTA is implemented as a mandatory program, 60 days following publication by the Secretary of a notice in the **Federal Register** , citizens and eligible nationals of countries that participate in the VWP planning to travel to the United States under the VWP must comply with the requirements of this section. As new countries are added to the VWP, citizens and eligible nationals of those countries will be required to obtain a travel authorization via ESTA prior to traveling to the United States under the VWP. Dated: June 2, 2008. Michael Chertoff, Secretary. [FR Doc. E8-12673 Filed 6-6-08; 8:45 am] BILLING CODE 9111-14-P NUCLEAR REGULATORY COMMISSION 10 CFR Parts 40, 72, 73, 74 and 150 [NRC-2007-0002] RIN 3150-AH85 Regulatory Improvements to the Nuclear Materials Management and Safeguards System AGENCY: Nuclear Regulatory Commission. ACTION: Final rule. SUMMARY: The Nuclear Regulatory Commission
(NRC)is amending its regulations related to licensee reporting requirements for source material and special nuclear material
(SNM)to the Nuclear Materials Management and Safeguards System (NMMSS). The amendments lower the threshold of the quantities of SNM and certain source materials that require the submission of material status reports to the NMMSS. Also, the amendments modify the types and timing of submittals of some transaction reports to the NMMSS. The amendments also require licensees to reconcile any material inventory discrepancies that NRC identifies in the NMMSS database. The amendments reduce some regulatory burden by reducing the current reporting requirements related to the export of certain source material and SNM. However, the annual reporting requirements are new requirements for licensees who possess 350 grams or less of SNM. These amendments are needed to improve the accuracy of the material inventory information maintained in the NMMSS. DATES: This final rule is effective on January 1, 2009. FOR FURTHER INFORMATION CONTACT: Neelam Bhalla, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-6843, e-mail, *nxb@nrc.gov.* SUPPLEMENTARY INFORMATION: I. Background II. Discussion A. Special Nuclear Material Transfer Reports B. Special Nuclear Material Status Reports C. Source Material Transfer Reports D. Source Material Status Reports E. Reconciliation of Submitted Inventories F. Reporting Identification Symbol and Holding Accounts G. Reduction in Reporting Requirements for Export of Material Shipments H. Who Would This Action Affect? I. How Would the Information Be Reported? III. Summary of Public Comments on the Proposed Rule IV. Summary of Amendments by Section V. Criminal Penalties VI. Agreement State Compatibility VII. Voluntary Consensus Standards VIII. Environmental Impact: Categorical Exclusion IX. Paperwork Reduction Act Statement X. Public Protection Notification XI. Regulatory Analysis XII. Regulatory Flexibility Certification XIII. Backfit Analysis XIV. Congressional Review Act I. Background The Nuclear Materials Management and Safeguards System (NMMSS) is the national database used in the United States by Nuclear Regulatory Commission
(NRC)licensees, the Agreement State licensees, and Department of Energy
(DOE)contractors to report the possession of certain special nuclear material
(SNM)and source material. The NMMSS was created as a result of comprehensive accounting procedures developed by the Atomic Energy Commission in response to the passage of the Atomic Energy Act of 1954 and began processing of facility submittals in 1965. The DOE is responsible for maintaining the NMMSS database. The NMMSS database supports NRC domestically in the review of licensee material control and accounting programs, and internationally as the U.S. Government database for collecting and reporting information required by international treaties. The NRC reporting requirements related to the NMMSS are primarily contained in 10 CFR Parts 40, 72, 74, 75, and 150. The NMMSS database uses licensee submittals to serve two important functions:
(1)Meeting international reporting obligations, and
(2)assisting in the oversight of licensee material control and accounting (MC&A) programs required by 10 CFR Parts 40, 72, 74, 75, 76, and 150. With regard to international commitments, the United States has committed to a national accountancy and control system for nuclear materials through treaties with nuclear trading partners and the International Atomic Energy Agency (IAEA). The NMMSS is part of the overall program to help satisfy these international commitments by constituting the national database used by NRC and the Agreement State licensees, and DOE contractors to report the possession of certain quantities of SNM and source material. The information submitted to the NMMSS is then reported externally by the United States in order to satisfy these treaty requirements. The NMMSS also maintains accounting data on U.S. peaceful use exports and imports of nuclear materials that have occurred since 1965. With respect to NRC's oversight of the MC&A at licensed facilities, the NMMSS is the national database that serves as the central collection and processing point for inventory, shipment, and receipt information required to be reported by commercial and Federal Government facilities. Applicable NRC reporting requirements are specified in 10 CFR Parts 40, 72, 74, 75, and 150. As a result of these reporting requirements, the NMMSS can provide the NRC staff with a projection of quantities of reportable materials located, shipped, or received at a particular licensee site. In October 2001, the DOE Office of the Inspector General
(OIG)issued a report based on an audit of the NMMSS for DOE-owned nuclear materials. 1 One of the findings of that report was that DOE could not fully account for DOE-owned nuclear materials loaned or leased to licensees. A similar audit conducted by NRC's OIG also raised concerns over the accuracy of material inventories in the NMMSS. 2 In the report, the NRC OIG recommended that the scope of licensee reporting be expanded to include a requirement that smaller licensees (those possessing less than 350 grams of SNM) submit inventory information to the NMMSS annually. 1 This report entitled, “Accounting for Government Owned Nuclear Materials Provided to Non-Department Domestic Facilities” (October 26, 2001), is available at *http://www.ig.doe.gov/documents/calendaryear2001/ig-0529.pdf.* 2 This report entitled, “Audit of NRC's Regulatory Oversight of Special Nuclear Materials” (OIG-03-A-15, May 23, 2003), is available at *http://www.nrc.gov/reading-rm/doc-collections/insp-gen/2003/03-a-15.pdf.* As a result of its audit, NRC took immediate steps to verify and reconcile inventories in the NMMSS database by issuing a bulletin, NRC Bulletin 2003-04: “Rebaselining of Data in the Nuclear Materials Management and Safeguards System.” (Agencywide Documents Access and Management System (ADAMS) Accession Number ML0732760009.) The bulletin was sent to all NRC and Agreement State licensees then holding NMMSS accounts and requested that they provide inventory information to the NMMSS. The NRC staff also conducted site visits to review selected licensees' submitted information in comparison to actual physical inventories. The review concluded that licensees did not submit or update inventories to the NMMSS for several years (or decades) because they possessed or transferred materials that did not meet minimum reporting thresholds. These efforts also helped identify accounts with zero balances. The rebaselining efforts resulted in decreasing the number of active accounts and supported a further review and reconciliation of material inventories in the remaining accounts. At the end of these efforts, NRC determined that enhanced reporting of inventory information by those licensees not presently required to do so would provide greater assurance about the accuracy of licensee inventory information maintained in the database. NRC believes that licensee inventories must be submitted regularly and reconciled in comparison to values projected by the NMMSS database to maintain the usefulness of the database for international and domestic regulatory needs. II. Discussion The NRC staff has had extensive interactions with the NMMSS operator and industry representatives since the issuance of NRC Bulletin 2003-04. On the basis of these efforts and an evaluation of the current regulations related to the NMMSS reporting, the NRC staff concluded that many of the discrepancies in NMMSS information resulted because:
(1)Many licensees (those that possess less than 350 grams of SNM) infrequently ship and/or receive reportable materials, and
(2)many licensees do not meet the current regulatory threshold for annual reporting of SNM or source material and lose institutional awareness of the NMMSS over time. As a result, for many licensees there are no requirements to periodically confirm the accuracy of values projected by the NMMSS. This conclusion led NRC to embark on an effort to amend its regulations to enhance the accuracy of the NMMSS database. The amendments lower the threshold of quantities of special nuclear materials and certain source materials requiring the submission of both status and transaction reports to the NMMSS. Another amendment to keep the NMMSS data more current modifies reporting requirements in § 40.64 to require licensees involved in enrichment services, downblending material initially enriched in uranium-235 (U 235 ) isotope 10 percent or more, or mixed-oxide
(MOX)fuel fabrication of uranium, to report the transfer, receipt, inventory adjustment, inventory, and material balance information for source material. These changes to NMMSS reporting requirements will improve the accuracy of material balance (inputs/outputs) information. Currently, licensees are only required to report source material subject to international treaty requirements. However, source material reporting is an important part of the material balance equation because these materials are used as an input material in the downblending of uranium, in MOX fuel fabrication, and in the uranium enrichment cycle. This type of facility reporting will facilitate the evaluation of the prior and ending source material balances of licensees that engage in activities that change the SNM values of materials. The NRC staff considered other possible consequences posed by inaccurate NMMSS information associated with these holders of small quantities of SNM. Gram quantities of SNM held by many small quantity licensees do not appear to pose a significant challenge to the promotion of security from an MC&A perspective. However, if periodic reporting and evaluation of small licensee balances are not required, it could reduce public confidence in the primary tool used by the NRC in the oversight of small licensee MC&A activities since NRC would not have assurance that projected material balances are representative of the quantities of materials at these sites. The following sections summarize the significant changes to the regulations and the NRC's basis for those changes. A. Special Nuclear Material Transaction Reports Currently, licensees are required by § 74.15(a) to report to the NMMSS whenever they transfer or receive one gram or more of SNM. The revision adds a requirement that a licensee must also report to the NMMSS whenever it makes an on-site adjustment to the SNM inventory involving a quantity of one gram or more SNM. The inventory adjustments may be due to decay, or normal operational losses. The adjustments must be made, at a minimum, when the licensee reports its physical inventory. Domestic MC&A safeguards will be enhanced by this change and NMMSS generated inventories will more accurately reflect actual facility inventory values. The required reporting of these adjustments will improve the accuracy of the NMMSS database. Additionally, §§ 72.78 and 74.15 require submission of material transaction reports for the transfer and receipt of SNM but do not specify the time frames in which the reports must be made. However, the reporting time frames are specified in NUREG/BR-0006, “Instructions for the Preparation and Distribution of Material Transaction Reports.” In contrast, for source material transactions under § 40.64(a), nuclear material transaction reports are required to be submitted by the close of business the next working day for the transfer of source material, and within ten days of receipt for the receipt of source material. Therefore, for consistency between those provisions and also with the guidance documents, §§ 72.78 and 74.15 are amended to require each licensee who transfers SNM to submit a nuclear material transaction report no later than the close of business the next working day, and to require each licensee who receives the material to submit a nuclear material transaction report within ten days after the material is received. Consistent with this change, 10 CFR Part 150 is amended to require licensees who transfer SNM to submit a nuclear material transaction report to NMMSS no later than the close of business the next working day. Currently, § 150.16(a) requires licensees only to submit the SNM transaction report “promptly” after the SNM transfer takes place. By changing “promptly” to “no later than the close of business the next working day,” the regulation will be unambiguous. A revision is also made to the section headings of §§ 72.78, 74.15 and 150.16. Currently, §§ 72.78 and 74.15 are entitled “Nuclear material transfer reports,” and § 150.16 is entitled “Submission to Commission of nuclear material transfer reports.” The amended heading of §§ 72.78 and 74.15 is “Nuclear material transaction reports.” Section 150.16 is now entitled “Submission to Commission of nuclear material transaction reports.” The amended section headings more accurately reflect the requirements contained in these sections for both receipt and transfer of nuclear material, and are consistent with the name of the submitted report. B. Special Nuclear Material Status Reports Currently, licensees are required by § 74.13(a) to report annual SNM inventories to the NMMSS only if they are authorized to possess more than 350 grams of SNM. The amendments lower the reporting threshold to one gram or more, requiring a licensee who possesses, or who had possessed in the previous reporting period, one gram or more of SNM to report an annual inventory to the NMMSS. By lowering the reporting threshold, NRC will improve its knowledge of the location and presence of SNM possessed by licensees. The staff considered changing the current 350-gram threshold to a number of values that were less than 350 grams but more than one gram. However, these approaches were rejected because they would still result in a number of licensees that would not have to report inventory regularly and ultimately cause a variation of the same problem i.e., that NRC would not have adequate input regarding inventories held by these licensees. The staff also considered lowering the inventory/material balance threshold to less than one gram of SNM. This method was not pursued because it would “mis-align” NRC regulations with DOE and with international entities with whom the U.S. has treaty agreements in place. Also, the licensee community would potentially have an additional burden to develop new (less than one gram) measurement techniques. Finally, the staff established the new threshold at one gram of SNM because:
(1)International entities (those with which the United States has treaties) recognize one gram as the basic measuring unit for SNM;
(2)one gram is a threshold value accepted by DOE and would meet its reporting expectations for licensees possessing government-owned material;
(3)a one gram threshold would address the NRC OIG concern about ensuring that NRC has interaction with and reporting from small-quantity licensees; and
(4)the one gram threshold for inventory/material balance reporting would align with the present one gram requirement for licensees reporting shipments and receipts (transactions) of SNM. The submission of material balance reports under the current rule is linked to the performance and conduct of annual physical inventories and related reports required by §§ 74.19(c), 74.31(c)(5), 74.33(c)(4), or 74.43(c)(6) and in March and September for those subject to § 74.51. Those provisions are linked for the convenience of licensees, since both reports contain the same minimum threshold requirements of more than 350 grams. However, the activities associated with performing, documenting, and maintaining records associated with a physical inventory, as required by § 74.19(c), are different and more encompassing than those associated with preparing and submitting a material status report required by § 74.13. Because the staff does not plan to revise § 74.19(c) as part of this rulemaking, it would therefore no longer be possible to link the reporting requirements of the two rules since a physical inventory under § 74.19(c) is only implicated if a licensee is authorized to possess greater than 350 grams of SNM. Thus, § 74.13 is revised to continue to permit licensees authorized to possess greater than 350 grams of SNM to submit material status reports along with their physical inventory reports as required by §§ 74.19(c), 74.31(c)(5), 74.33(c)(4), or 74.43(c)(6) and in March and September of each year, for those subject to § 74.51. However, for those licensees who are authorized to possess 350 grams or less of SNM, the rule requires the submission of material balance reports no later than March 31 of each year. The NRC finds that this schedule will eliminate any reporting problems related to inconsistencies in reporting quantities that persist between §§ 74.13 and 74.19, but will also maintain the intended flexibility and efficiency of the current rule. C. Source Material Transaction Reports Currently, § 40.64(a) requires submission of a Nuclear Material Transaction Report whenever a licensee transfers, receives, or adjusts the inventory of foreign obligated source material by one kilogram or more. Foreign obligated materials are those nuclear materials that are subject to tracking by international treaties. Also, reports are required for the import and export of one kilogram or more of any source material, regardless of obligation. However, the current requirements do not require reporting when material is utilized. The revision amends the rule to require reporting when a licensee utilizes one kilogram or more of source material in enrichment services, in downblending material initially enriched in the U 235 isotope to 10 percent or more, or in MOX fuel fabrication, regardless of obligation. The NRC staff believes that source material reporting is an important part of the material balance equation because these materials are used as an input material in the downblending of uranium, in MOX fuel fabrication, and in the uranium enrichment cycle. This amendment to NMMSS reporting will facilitate the evaluation of the prior and ending balances of licensees that engage in activities that change the SNM values of their inventories and thus will improve the accuracy of the NMMSS data. D. Source Material Status Reports Currently, § 40.64(b) requires annual source material inventory reports of foreign obligated source material for licensees authorized to possess more than 1,000 kilograms of source material. The revision lowers this value to one kilogram or more of foreign obligated source material. A lowered reporting threshold will provide the NRC with better knowledge of the location and presence of foreign obligated source material possessed by the licensees. The revision also requires the licensees to report annual source material inventory when a licensee utilizes one kilogram or more of any source material in enrichment services, in downblending material initially enriched in the U 235 isotope to 10 percent or more, or in MOX fuel fabrication, regardless of the obligation. Based on a review of the rebaselining efforts, the NRC staff has concluded that many licensees did not submit or update inventories to the NMMSS for several years, because they possessed or transferred materials that did not meet the minimum reporting thresholds. By lowering the reporting threshold from 1000 kilograms to 1 kilogram of foreign obligated material, the staff believes the information maintained in the NMMSS database will be more current and reliable and help fulfil U.S. obligations under bilateral agreements. E. Reconciliation of Submitted Inventories Many facilities that presently report inventory and material balance information also participate in a periodic reconciliation process with the NMMSS to address any differences between NMMSS generated inventory values and the facility reported inventory values. Currently, the reconciliation process is not explicitly required by regulations; however, it is considered to be an integral part of routine NMMSS operations. To address this issue, the amendments to §§ 40.64(b), 72.76(a), 74.13(a), 150.17(a) and 150.17(b) require licensees to reconcile any inventory discrepancies identified by NRC in the NMMSS database within 30 days of being notified of a discrepancy by NRC. In the amendments to §§ 40.4, 72.3, 74.4 and 150.3, a new definition, “reconciliation,” is added to describe the process by which licensees' reports are evaluated and compared by NRC to the projected material balances by the NMMSS. The NMMSS projected balances are the NMMSS calculated material balances based on the transfer, receipt, or other adjustments reported to the NMMSS by the licensees during the previous reporting period. The process is considered complete when a licensee resolves any differences between the reported inventory and the inventory projected by the NMMSS database. This requirement will help maintain the accuracy of information in the NMMSS database. F. Reporting Identification Symbol
(RIS)and Holding Accounts NRC currently assigns a NMMSS account number called a Reporting Identification Symbol
(RIS)to each licensee for submitting information to the NMMSS. The revisions to §§ 40.64(b) and 74.13(a) require licensees to report inventory of source material and SNM, respectively, not only for their primary RIS account but also source and SNM inventories in associated holding accounts. Holding accounts were established by a few licensees to identify the material that the licensee was not actively using. Currently, licensees are not required to acknowledge shipments and receipts, or to report inventory information pertaining to the holding accounts to the NMMSS. The revisions will enhance MC&A safeguards because of the increased accuracy and availability of inventory information to the NRC staff. G. Reduction in Reporting Requirements for Export of Material Shipments Currently, licensees who export reportable quantities of SNM or source material file both the shipper's and receiver's information on two separate forms when exporting nuclear material, as described in NUREG/BR-0006. Based on the NRC inspector observations, the current additional requirement to report a foreign facility description of the same transactions has not been useful in assuring the accuracy of domestic MC&A information and it is not necessary to meet international reporting requirements. Consequently, this requirement can be eliminated to reduce burden without adverse effects on safety or security or the NMMSS database. This change is reflected in the amendments to §§ 40.64, 74.15 and 150.16 and will be reflected in the revised NUREG/BR-0006. In the amendment, licensees are required to file only the shipper's information form unless there is a significant shipper/receiver difference or a theft or diversion is identified. In this context “significant” refers to a difference, for SNM, that requires resolution as described in §§ 74.31, 74.43, or 74.59, as applicable. For source material, the quantities delineated in § 40.64(c)(1) involving a theft or unlawful diversion would be the threshold quantities for additional reporting. This change to the reporting requirement will reduce the licensee's reporting burdens when shipping nuclear materials without significantly impacting the quality of the information reported to the database. H. Who Would This Action Affect? Currently, licensees possessing more than 350 grams of SNM report inventory and material balance information annually to the NMMSS. The lowering of the threshold to one gram of SNM and one kilogram of source material subject to treaty obligations will affect approximately 200 additional NRC and Agreement State licensees who presently possess between one and 350 grams of SNM. New requirements associated with source material reporting will also apply to licensees that perform uranium enrichment services, downblend material initially enriched in the U 235 isotope to 10 percent or more, and perform MOX fuel fabrication. However, the actual impact on these licensees will be minimal because much of the source material used for these type of processes has associated treaty obligations and is subject to the current reporting requirements. Finally, the reduction in reporting requirements associated with export of SNM and source material will impact approximately 17 NRC and Agreement State licensees that export such materials. This change to the reporting requirements as specified in NUREG/BR-0006 will result in a reduction of about 1,700 reports per year, from the current number of 3,400 reports per year to the NMMSS, without impacting the quality of information in the NMMSS database. I. How Would the Information be Reported? Licensees may continue to submit foreign obligated source material information pursuant to § 40.64(b) as a statement and may submit the statement with other reports that the licensee is required to submit, such as the SNM material balance report. However, source material and SNM transaction reports must be submitted by filing the Nuclear Material Transaction Reports form in computer-readable format as specified in NRC NUREG/BR-0006. Additional source and SNM inventory and material balance reports must be submitted in computer-readable format as specified in the NRC NUREG/BR-0007, “Instructions for the Preparation and Distribution of Material Status Reports.” Specific details about the forms and format for these reports are contained in the NRC NUREG/BR-0006 and 0007. Additionally, reporting software is available to the licensees free of charge from the NMMSS contractor. III. Summary of Public Comments on the Proposed Rule The NRC received 5 comment letters on the proposed rule. The commenters were all representatives of industry. Copies of the public comments are available for review in the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. A review of the comments and the NRC staff's responses follow: *Comment 1:* Four commenters indicated that the proposed language in 10 CFR 74.15(a) regarding on-site inventory adjustments needed to be clarified. As written, the commenters were concerned that frequent (daily to monthly) reporting would be necessary to account for decay and burnup in the reactor core. Commenters described this as an unnecessary reporting burden with no commensurate benefit or improvement in SNM accountability. Two of the licensees suggested revised language that would clarify the rule text to make it clear that the adjustments would be submitted to coincide with the submission of the annual or semi-annual Material Balance Report. One commenter requested that the rule state that its current practice of bi-monthly adjustments is acceptable. *Response:* NRC agrees with the commenters that the rule language needs to be clarified. Early in the comment period, the NRC posted a Frequently Asked Question on the Ruleforum Web site after several licensee inquiries during the comment period. The question and answer was also included in a special edition of the NMMSS News in March 2007. The answer stated that the NRC expects that a licensee, at a minimum, report all inventory adjustments no later than when the licensee reports its physical inventory results to NMMSS (i.e., 12 months for power reactors). The NRC has revised the final rule language to clarify the timing of the inventory adjustments. Licensees are allowed to adjust inventory on a more frequent basis than what is required by the regulations. Therefore the commenter is correct to assume that it is acceptable to continue to report its adjustments with its bi-monthly inventory data. However, the NRC does not agree that this option needs to be acknowledged in the final rule text. A licensee can always do more than required by the regulations as long as it meets the minimum requirements. *Comment 2:* One commenter requested that 10 CFR 73.67(g)(2)(ii) be revised to remove a reference to § 70.54 because that section of the regulations no longer exists. The commenter noted that the correct reference should be to § 74.15. The commenter requested that the inadvertent omission be picked up in this rule since changes are being made that affect § 74.15. *Response:* The NRC agrees with the commenter that the correction should be made. In a final rule published in 2002 (67 FR 78130; December 23, 2002), the NRC deleted § 70.54 in its entirety. The requirements in that section are now covered by the requirements found in § 74.15. The 2002 rulemaking was part of an effort to move all of the MC&A requirements into 10 CFR Part 74. References to the deleted sections were revised to reference the new locations in 10 CFR Part 74. The reference to § 70.54 contained in § 73.67(g)(2)(ii) should have been changed to § 74.15 in the 2002 rulemaking but was overlooked. Because this is a minor conforming change and no purpose would be served by seeking public comment on the correction, the Commission, under 5 U.S.C. 553(b)(3)(B), finds that good cause exists to dispense with notice and comment procedures for this correction. The NRC has made the correction to the rule text. *Comment 3:* One commenter stated that complete reconciliation of all reports submitted to NMMSS may not be practical due to reporting precision and errors caused by rounding. The commenter stated that the rule should be limited to reconciliation of the ending inventory balances in the Material Status Reports (742 section A line 81 and 742 section B) between the licensee and NMMSS. The commenter noted that this limitation would be consistent with the Discussion section of the proposed rule. *Response:* The staff disagrees that reconciliation is limited to the ending inventory balance. The commenter is correct that reconciliation of licensee submittals is partially a review of database ending values, based on other licensee submittals, compared to the ending balances reported by the licensee in the Material Status Report, section A line 81 and section B. However, the reconciliation effort also includes section A Line 80 (government-owned materials, if any) of the Material Status Report and a comparison of the Total line values listed on Form 742C, the Physical Inventory Listing. Additionally, to correct any identified inconsistencies in these ending values, a licensee may find it necessary to review previous submittals made during the period being reconciled. No changes to the rule language have been made. *Comment 4:* One commenter stated that a definition for ‘holding accounts’ should be added to 10 CFR Part 74. The commenter stated that the addition of holding accounts to a licensee's reporting requirements should be clarified such that the excess material from a reload campaign or any other inventory that may be held at a supplier is not consid ered a ‘holding account’ under the new requirement. *Response:* The staff does not find it appropriate to add such a definition to the regulations because other types of NMMSS accounts are not separately defined. However, the NRC has included further description of `holding accounts' in both NUREG/BR-0006 and NUREG/BR-0007. The staff agrees with the commenter that material that is held at a supplier is not considered a holding account. *Comment 5:* One commenter stated that the 10-day rule for submitting receipt data conflicts with the 10-business day submittal required by DOE and that the revised reporting requirements should be consistent with the DOE reporting requirements and specify 10 business days for submittal of receipt data. *Response:* The NRC disagrees with the commenter. The 10 days versus 10 business days has been NRC practice for many years, as documented in previous versions of NUREG/BR-0006. Allowing 10 business days could cause delays associated with facility closure during holiday periods. The commenter has not provided an adequate reason for changing the reporting time. The rule only applies to Agreement State and NRC licensees and certificate holders and does not apply to DOE sites. Even if the requirements applied to DOE sites, there would be no conflict because by filing the report within 10 days, the 10 business days would also be met. *Comment 6:* One commenter stated that it is currently using “V” RISs for waste containers for which safeguards have been terminated and that operations would be adversely impacted if it had to use holding accounts instead of “V” RISs. The commenter argued that significant resources would be needed to inventory all items currently in the “V” RIS (thousands of waste drums) before returning them to active inventory. The commenter stated that DOE allows the use of “V” RISs for waste containers for which safeguards have been terminated and this allowance for waste containers should be allowed by the rule. The commenter stated that the costs associated with adding waste items to active inventory must be evaluated against the benefits obtained from increasing the level of accountability. *Response:* The NRC disagrees with the commenter. Waste containers should be properly accounted for in a licensee's inventory. A licensee could have kilogram quantities of special nuclear material in waste drums and this material should be accounted for. Lack of knowledge of the contents of waste containers is both a safety and security concern. The rule only applies to Agreement State and NRC licensees and certificate holders and does not apply to DOE sites. For NRC and Agreement State licensees, the “V” accounts are limited to those licensees authorized for land disposal of radioactive waste and are not considered to be ‘holding accounts’. These licensees do not need to report and reconcile the values of source and special nuclear material in their account with the NMMSS database. The fact that the commenter has a “V” account is an artifact of the facility previously being operated by DOE. Because the facility is under NRC jurisdiction, the “V” account should be changed to an “H” account. *Comment 7:* One commenter stated that it is operating under an exemption to the reporting requirements of 10 CFR Part 74 for material balance and inventory reports and that the exemption remains in effect until the reporting guidance is revised and appropriate programming changes are made to the NMMSS software. Therefore, the commenter stated that its site systems have not been upgraded for this purpose and that it could not report data to NMMSS in the proposed licensee format until October 2009. *Response:* This comment is beyond the scope of the rulemaking. This is a licensing issue that the commenter should discuss with its NRC Project Manager. *Comment 8:* One commenter stated that it prefers to continue to report and reconcile NMMSS data as is currently submitted and to certify the NMMSS-generated M-742 report. The commenter stated that the existing method of reporting meets the intent of the reporting requirements and there is no benefit in altering its current reporting method. *Response:* The commenter has not provided adequate information to determine if the process it currently uses meets the intent of the regulation. The commenter should discuss this with its NRC Project Manager. IV. Summary of Amendments by Section Section 40.4 Definitions Section 40.4 is amended to add a definition of “reconciliation.” Reconciliation is defined to mean the process by which licensee inventory submittals are compared to values projected by the NMMSS, and the process is considered complete when the licensee resolves any differences between the two values, including foreign obligated materials. Section 40.64 Reports Section 40.64(a) is amended to
(1)require licensees who utilize one kilogram or more of source material, regardless of obligation, in enrichment services, downblending uranium that has an initial enrichment of the U 235 isotope of 10 percent or more, or in the fabrication of MOX fuels, complete and submit a Nuclear Material Transaction Report; and
(2)require licensees who export source material to complete only the licensee portion of the transaction report unless there is an indication of loss, theft, or diversion of the source material, in which case both the licensee's and the foreign facility's information on the form must be reported. Section 40.64(b) is amended to
(1)lower reporting thresholds for possession and reporting of inventory of foreign obligated source material to one kilogram;
(2)require each licensee who possesses one kilogram or more of uranium or thorium source material in the operation of enrichment services, downblending uranium that has an initial enrichment of the U 235 isotope of 10 percent or more, or in the fabrication of MOX fuels, to complete and submit, in computer-readable format, Material Balance and Physical Inventory Listing Reports concerning all source material (both foreign obligated and non-obligated) that the licensee has received, produced, possessed, transferred, consumed, disposed, or lost in the previous reporting period;
(3)resolve any inventory discrepancies within 30 calendar days of notification of the discrepancy identified by the NRC;
(4)require inventory reporting not only in the
(RIS)account but also in all associated holding accounts; and
(5)correct the NRC address for obtaining the reporting instructions. Section 72.3 Definitions Section 72.3 is amended to add a definition of “reconciliation.” Reconciliation is defined to mean the process by which licensee submittals are compared to projected values developed by the NMMSS, and the process is considered complete when the licensee resolves any differences between the two values, including foreign obligated materials. Section 72.72 Material Balance Inventory and Records Requirements for Stored Materials Section 72.72(a) is amended to
(1)correct the reference for SNM to § 74.13(a) (the current reference to § 74.13(a)(1) is incorrect because there is no paragraph (a)(1) in § 74.13); and
(2)require licensees to keep records showing the receipt, inventory, disposal, acquisition, and transfer of source material in quantities as specified in § 40.64. Section 72.76 Material Status Reports Section 72.76(a) is amended to
(1)require reports on source material as specified in § 40.64;
(2)require licensees to resolve any discrepancies identified during the report review
(3)and reconciliation process within 30 calendar days of submission of the information; and correct the NRC address for obtaining the reporting instructions. Section 72.78 Nuclear Material Transfer Reports The section heading is revised to read, “Nuclear material transaction reports.” The amendment is consistent with the name of the report (transaction report) and describes requirements for both receipt and transfer of nuclear materials. Section 72.78(a) is amended to
(1)add a reporting requirement when a licensee adjusts the inventory of SNM as specified by § 74.15 or source material as specified by § 40.64; and
(2)correct the NRC address for obtaining the reporting instructions. Section 73.67 Licensee Fixed Site and In-Transit Requirements for the Physical Protection of Special Nuclear Material of Moderate and Low Strategic Significance Paragraph (g)(2)(ii) is revised to correct the reference to § 70.54. Section 70.54 was removed from the regulations in a previous revision. The correct reference is to § 74.15. Section 74.2 Scope Section 74.2(a) is amended to lower the applicable threshold of general reporting and recordkeeping requirements of subpart B of 10 CFR Part 74 to each person who possesses one gram or more of SNM. Section 74.4 Definitions Section 74.4 is amended to add a definition of “reconciliation.” Reconciliation is defined to mean the process by which licensee submittals are compared to projected values developed by NMMSS, and the process is considered complete when the licensee resolves any differences between the two values, including foreign obligated materials. Section 74.13 Material Status Reports Section 74.13(a) is amended to
(1)lower reporting thresholds from authorization to possess more than 350 grams of SNM to possession of one gram or more of SNM, or possession of one gram or more of SNM in the inventory reporting period;
(2)require inventory reporting to include not only the primary Reporting Identification Symbol
(RIS)account but also SNM in any associated holding accounts;
(3)require licensees to resolve any discrepancies identified during the report review and reconciliation process within 30 calendar days of notification of a discrepancy identified by the NRC;
(4)require licensee submission of material balance reports no later than March 31 of each year for reports not covered under §§ 74.19, 74.31(c)(5), 74.33(c)(4), 74.43(c)(6), or 74.51; and
(5)correct the NRC address for obtaining the reporting instructions. Section 74.15 Nuclear Material Transfer Reports The section heading is revised to read, “Nuclear material transaction reports.” The amendment is consistent with the name of the report (transaction report) and describes requirements for both receipt and transfer of nuclear materials. Section 74.15(a) is amended to
(1)add a reporting requirement when the inventory of SNM is adjusted in a quantity of one gram or more;
(2)specify that each licensee who transfers SNM must submit a Nuclear Material Transaction Report no later than the close of business the next working day, and each licensee who receives the material must submit a Nuclear Material Transaction Report within ten
(10)days after the material is received; and
(3)correct the NRC address for obtaining the reporting instructions. The current paragraph
(c)is redesignated as a new paragraph (d). A new paragraph
(c)is added to § 74.15 to require licensees who export one gram or more of SNM to complete only the supplier's portion of the form unless a significant shipper-receiver difference as described in §§ 74.31, 74.43, or 74.59 is identified. Section 150.3 Definitions Section 150.3 is amended to add a definition of “reconciliation.” Reconciliation is defined to mean the process by which licensee submittals are compared to projected values developed by the NMMSS, and the process is considered complete when the licensee resolves any differences between the two values, including foreign obligated materials. Section 150.8 Information Collection Requirements: OMB Approval In Section 150.8 paragraph (c)(1) is revised, paragraph (c)(2) is redesignated as a new paragraph (c)(3), and a new paragraph (c)(2) is added to describe that in § 150.17, DOE/NRC Form 742 and its computer-readable format are approved under OMB control number 3150-0004, and DOE/NRC Form 742C and its computer-readable format are approved under OMB control number 3150-0058. Section 150.16 Submission to Commission of Nuclear Material Transfer Reports The section heading is revised to read, “Submission to the Commission of nuclear material transaction reports.” The amendment is consistent with the name of the report (transaction report) and describes requirements for both receipt and transfer of nuclear materials. Section 150.16(a) is revised to add a new paragraph (a)(1) that generally retains the requirements of current paragraph (a), but is amended to
(1)require reporting when the inventory of SNM is adjusted in a quantity of one gram or more;
(2)specify that for transfer of SNM, the information be submitted no later than the close of next business day;
(3)require completion of only the licensee's portion of the form for exporting SNM unless a significant shipper-receiver difference as described in §§ 74.31, 74.43, or 74.59 is identified; and
(4)correct the NRC address for obtaining the reporting instructions. The new paragraph (a)(2) in § 150.16 describes the material transaction reporting requirements for the source material. Currently, source material transaction reporting requirements are described in § 150.17(a), under the heading “Submission to Commission of source material reports.” Moving these requirements to § 150.16 will help licensees locate the material transaction reporting requirements for both SNM and source material in § 150.16. The new § 150.16(a)(2) also
(1)requires a licensee who utilizes any uranium or thorium source material, regardless of obligation, in a quantity of one kilogram or more, in enrichment services, downblending uranium that has an initial enrichment of the U 235 isotope of 10 percent or more, or in the fabrication of MOX fuels, to submit source material transaction reports;
(2)requires licensees to file only the licensee's portion of the form when exporting one kilogram or more of source material, unless there is an indication of theft or diversion as described in § 40.64(c), in which case both the receiver's and shipper's portion of the form must be completed;
(3)requires the shipper's portion of the form to be completed for imports; and
(4)corrects the NRC address for obtaining the reporting instructions. Section 150.17 Submission to Commission of Source Material Reports The section heading is revised to read, “Submission to Commission of nuclear material status reports.” This amendment will help licensees locate the reporting requirements for material status reports for both source material and SNM. This format is similar to the reporting formats for source and SNM status reporting in 10 CFR Parts 40, 72, and 74. Section 150.17(a) is amended to require each licensee who is in possession of, or had possessed in the previous reporting period, SNM in a quantity of one gram or more, to annually complete and submit in computer-readable format Material Balance and Inventory Reports concerning special nuclear material that the licensee has received, produced, possessed, transferred, consumed, disposed of, or lost. It also requires licensees to resolve any discrepancies identified during the report review and reconciliation process within 30 calendar days of notification of a discrepancy identified by NRC. Section 150.17(b) is amended to
(1)lower the annual inventory reporting threshold from the current 1000 kilogram of foreign obligated source material to one kilogram;
(2)add a reporting requirement that a licensee who utilizes one kilogram or more of any source material in enrichment services, in downblending material initially enriched in the U 235 isotope to 10 percent or more, or in MOX fuel fabrication is required to submit material balance and physical inventory listing reports concerning source material that the licensee has received, produced, possessed, transferred, consumed, disposed, or lost;
(3)require licensees to resolve any discrepancies identified during the report review and reconciliation process within 30 calendar days of notification of a discrepancy identified by NRC; and
(4)correct the NRC address for obtaining the reporting instructions. V. Criminal Penalties For the purpose of section 223 of the Atomic Energy Act (AEA), the Commission is amending 10 CFR Parts 40, 72, 73, 74, and 150 under one or more of sections 161b, 161i, or 161o of the AEA. Willful violations of the rule will be subject to criminal enforcement. VI. Agreement State Compatibility Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the **Federal Register** on September 3, 1997 (62 FR 46517), this rule is designated Compatibility Category “NRC.” The Compatibility Categories for the sections amended in this proposed rule would be the same as the sections in the current rule. The revisions to §§ 40.64, 72.72(a), 72.76, 72.78, 73.67, 74.4, 74.13, 74.15, 150.16 and 150.17 are designated as Category “NRC,” because these are areas of exclusive NRC regulatory authority. The following new sections, §§ 40.4, 72.3 and 150.3, are also designated Compatibility Category “NRC.” Compatibility Category “NRC” is the NRC program elements that address areas of regulation that cannot be relinquished to Agreement States under the Atomic Energy Act or provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws, but does not confer regulatory authority on the State. VII. Voluntary Consensus Standards The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the NRC is modifying current reporting requirements for source material and special nuclear material to the NMMSS. This action does not constitute the establishment of a standard that establishes generally applicable requirements. VIII. Environmental Impact: Categorical Exclusion NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1) for the changes to part 150 and as described in 10 CFR 51.22(c)(3)(iii) for the changes to parts 40, 72, 73, and 74. Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule. IX. Paperwork Reduction Act Statement This final rule contains new or amended information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). These requirements were approved by the Office of Management and Budget, approval numbers 3150-0020, 3150-0003, 3150-0132, 3150-0123, 3150-0032, 3150-0004, and 3150-0058. Because the rule will reduce the burden for existing information collection requirements, the public burden for these information collections is expected to be decreased by 695 hours (NRC Form 741, -1495 hours at 1.25 hours/response; NRC Form 742, +400 hours at 2 hours/response; and NRC Form 742C, +400 hours at 2 hours/response). This reduction includes the time required for reviewing instructions, searching existing data sources, gathering and maintaining the data needed and completing and reviewing the information collection. Send comments on any aspect of these information collections, including suggestions for further reducing the burden, to the Records and FOIA/Privacy Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by Internet electronic mail to *INFOCOLLECTS@NRC.GOV* ; and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-10202 (3150-0020, 3150-0003, 3150-0132, 3150-0123, 3150-0032, 3150-0004, and 3150-0058), Office of Management and Budget, Washington, DC 20503. X. Public Protection Notification The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number. XI. Regulatory Analysis The Commission has prepared a regulatory analysis on this regulation. The analysis examines the costs and benefits of the alternatives considered by the Commission. The rule will affect about 180 licensees who are currently required to file reports and approximately 200 additional NRC and Agreement State licensees. Affected licensees include enrichment facilities, fuel fabricators, laboratories, reactors, universities, colleges, medical clinics, and hospitals, some of which may qualify as small business entities as defined by 10 CFR 2.810. The rule will result in annual savings for the 17 licensees subject to current reporting requirements because there is a reduction in the number of transaction forms submitted for certain export transactions. However, for the licensees possessing 350 grams or less of SNM, there is an additional cost from the regulations. The annual time required by these licensees to complete each inventory and material balance report is estimated at two hours. The total annual burden to perform the reporting and reconciliation for these 200 licensees is 400 hours. The annual costs of the amendments for affected licensees are estimated to be $37,200 total or on average about $186 per affected licensee. The analysis is available for inspection in the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Single copies of the regulatory analysis are available from Neelam Bhalla, telephone
(301)415-6843, e-mail, *nxb@nrc.gov* of the Office of Federal and State Materials and Environmental Management Programs. XII. Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Commission certifies that this rule does not have a significant economic impact on a substantial number of small entities. The rule would affect about 180 licensees who are currently required to file reports and approximately 200 additional NRC and Agreement State licensees. Affected licensees include enrichment facilities, fuel fabricators, laboratories, reactors, universities, colleges, medical clinics, and hospitals, some of which may qualify as small business entities as defined by 10 CFR 2.810. The rule will result in annual savings for the 17 licensees subject to current reporting requirements because there is a reduction in the number of transaction forms submitted for certain export transactions. However, for the licensees possessing 350 grams or less of SNM, there is an additional cost from the regulations. The annual time required by these licensees to complete each inventory and material balance report is estimated at two hours. No research or compilation is necessary because all information is transcribed from in-house records kept for other purposes. The total annual burden to perform the reporting and reconciliation for these 200 licensees is 400 hours. Based on the regulatory analysis conducted for this action, the annual costs of the amendments for affected licensees are estimated to be $37,200 total or on average about $186 per affected licensee. NRC believes that the selected alternative reflected in the amendment is the least burdensome, most flexible alternative that accomplishes the NRC's regulatory objective. XIII. Backfit Analysis NRC has determined that the backfit rule (§§ 50.109, 70.76, 72.62, or 76.76) does not apply to this final rule because this amendment does not involve any provisions that impose backfits as defined in the backfit rule. Therefore, a backfit analysis is not required. XIV. Congressional Review Act In accordance with the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB. XV. Lists of Subjects 10 CFR Part 40 Criminal penalties, Government contracts, Hazardous materials transportation, Nuclear materials, Reporting and recordkeeping requirements, Source material, Uranium. 10 CFR Part 72 Administrative practice and procedure, Criminal penalties, Manpower training programs, Nuclear materials, Occupational safety and health, Penalties, Radiation protection, Reporting and recordkeeping requirements, Security measures, Spent fuel, Whistleblowing. 10 CFR Part 73 Criminal penalties, Export, Hazardous materials transportation, Import, Nuclear materials, Nuclear power plants and reactors, Reporting and recordkeeping requirements, Security measures. 10 CFR Part 74 Accounting, Criminal penalties, Hazardous materials transportation, Material control and accounting, Nuclear materials, Packaging and containers, Radiation protection, Reporting and recordkeeping requirements, Scientific equipment, Special nuclear material. 10 CFR Part 150 Criminal penalties, Hazardous materials transportation, Intergovernmental relations, Nuclear materials, Reporting and recordkeeping requirements, Security measures, Source material, Special nuclear material. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553; the NRC is adopting the following amendments to 10 CFR parts 40, 72, 73, 74, and 150: PART 40—DOMESTIC LICENSING OF SOURCE MATERIAL 1. The authority citation for Part 40 continues to read as follows: Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2), 83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L. 97-415, 96 Stat. 2067 (42 U.S.C. 2022); sec. 193, 104 Stat. 2835, as amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 40.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237). 2. In § 40.4, a new definition, *Reconciliation,* is added in alphabetical order to read as follows: § 40.4 Definitions. *Reconciliation* means the process of evaluating and comparing licensee reports required under this part to the projected material balances generated by the Nuclear Materials Management and Safeguards System. This process is considered complete when the licensee resolves any differences between the reported and projected balances, including those listed for foreign obligated materials. 3. In § 40.64, paragraphs
(a)and
(b)are revised to read as follows: § 40.64 Reports.
(a)Except as specified in paragraphs
(d)and
(e)of this section, each specific licensee who transfers, receives, or adjusts the inventory in any manner, of uranium or thorium source material with foreign obligations by one kilogram or more; or who imports or exports one kilogram or more of uranium or thorium source material; or who uses one kilogram or more of any uranium or thorium source material in enrichment services, downblending uranium that has an initial enrichment of the U 235 isotope of 10 percent or more, or in the fabrication of mixed-oxide fuels, shall complete a Nuclear Material Transaction Report in computer-readable format as specified in the instructions in NUREG/BR-0006 and NMMSS Report D-24, “Personal Computer Data Input for NRC Licensees.” Each licensee who exports one kilogram or more of uranium or thorium source material shall complete in the format listed above the licensee's portion of the Nuclear Material Transaction Report unless there is indication of loss, theft, or diversion as discussed under paragraph
(d)of this section, in which case both the licensee's and the foreign facility's information must be reported. Licensees who import one kilogram or more of uranium or thorium source material shall complete the supplier's and the licensee's portion of the Nuclear Material Transaction Report. Copies of the instructions may be obtained either by writing the U.S. Nuclear Regulatory Commission, Division of Fuel Cycle Safety and Safeguards, Washington, DC 20555-0001, or by e-mail to RidsNmssFcss@nrc.gov. Each licensee who transfers the material shall submit a Nuclear Material Transaction Report in computer-readable format as specified in the instructions no later than the close of business the next working day. Each licensee who receives the material shall submit a Nuclear Material Transaction Report in computer-readable format in accordance with instructions within ten
(10)days after the material is received. The Commission's copy of the report must be submitted to the address specified in the instructions. These prescribed computer-readable forms replace the DOE/NRC Form 741 previously submitted in paper form.
(b)Except as specified in paragraphs
(d)and
(e)of this section, each licensee who:
(1)Possesses, or had possessed in the previous reporting period, at any one time and location, one kilogram or more of uranium or thorium source material with foreign obligations as defined in this part, shall document holdings as of September 30 of each year and submit to the Commission within 30 days, a statement of its source material inventory with foreign obligations as defined in this part. Alternatively, this information may be submitted with the licensee's material status reports on special nuclear material filed under part 72 or 74 of this chapter, as a statement of its source material inventory with foreign obligations as defined in this part. This statement must be submitted to the address specified in the reporting instructions in NUREG/BR-0007, and include the Reporting Identification Symbol
(RIS)assigned by the Commission to the licensee.
(2)Possesses, or had possessed in the previous reporting period, one kilogram or more of uranium or thorium source material pursuant to the operation of enrichment services, downblending uranium that has an initial enrichment of the U 235 isotope of 10 percent or more, or in the fabrication of mixed-oxide fuels shall complete and submit, in computer-readable format, Material Balance and Physical Inventory Listing Reports concerning all source material that the licensee has received, produced, possessed, transferred, consumed, disposed of, or lost. Reports must be submitted for each Reporting Identification Symbol
(RIS)account including all holding accounts. Each licensee shall prepare and submit these reports as specified in the instructions in NUREG/BR-0007 and NMMSS Report D-24, “Personal Computer Data Input for NRC Licensees.” These reports must document holdings as of September 30 of each year and must be submitted to the Commission within 30 days. Alternatively, these reports may be submitted with the licensee's material status reports on special nuclear material filed under parts 72 or 74 of this chapter. Copies of the reporting instructions may be obtained either by writing to the U.S. Nuclear Regulatory Commission, Division of Fuel Cycle Safety and Safeguards, Washington, DC 20555-0001, or by e-mail to *RidsNmssFcss@nrc.gov.* Each licensee required to report material balance, inventory, and/or foreign obligation information, as detailed in this part, shall resolve any discrepancies identified during the report review and reconciliation process within 30 calendar days of notification of a discrepancy identified by the NRC. PART 72—LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL, HIGH-LEVEL RADIOACTIVE WASTE AND REACTOR-RELATED GREATER THAN CLASS C WASTE 4. The authority citation for part 72 continues to read as follows: Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 131, 132, 133, 135, 137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 10157, 10161, 10168); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); sec.651(e), Pub. L. 109-58, 119 Stat. 806-10 (42 U.S.C. 2014, 2021, 2021b, 2111). Section 72.44(g) also issued under secs. 142(b) and 148(c), (d), Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b), 10168(c), (d)). Section 72.46 also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Section 72.96(d) also issued under sec. 145(g), Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-425, 96 Stat. 2202, 2203, 2204, 2222, 2224 (42 U.S.C. 10101, 10137(a), 10161(h)). Subparts K and L are also issued under sec. 133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252 (42 U.S.C. 10198). 5. In § 72.3, a new definition, *Reconciliation,* is added in alphabetical order to read as follows: § 72.3 Definitions. *Reconciliation* means the process of evaluating and comparing licensee reports required under this part to the projected material balances generated by the Nuclear Materials Management and Safeguards System. This process is considered complete when the licensee resolves any differences between the reported and projected balances, including those listed for foreign obligated materials. 6. In § 72.72, paragraph
(a)is revised to read as follows: § 72.72 Material balance, inventory, and records requirements for stored materials.
(a)Each licensee shall keep records showing the receipt, inventory (including location), disposal, acquisition, and transfer of all special nuclear material with quantities as specified in § 74.13(a) of this chapter and for source material as specified in § 40.64 of this chapter. The records must include as a minimum the name of shipper of the material to the ISFSI or MRS, the estimated quantity of radioactive material per item (including special nuclear material in spent fuel and reactor-related GTCC waste), item identification and seal number, storage location, onsite movements of each fuel assembly or storage canister, and ultimate disposal. These records for spent fuel and reactor-related GTCC waste at an ISFSI or for spent fuel, high-level radioactive waste, and reactor-related GTCC waste at an MRS must be retained for as long as the material is stored and for a period of 5 years after the material is disposed of or transferred out of the ISFSI or MRS. 7. In § 72.76, paragraph
(a)is revised to read as follows: § 72.76 Material status reports.
(a)Except as provided in paragraph
(b)of this section, each licensee shall complete in computer-readable format and submit to the Commission a Material Balance Report and a Physical Inventory Listing Report as specified in the instructions in NUREG/BR-0007 and NMMSS Report D-24 “Personal Computer Data Input for NRC Licensees.” Copies of these instructions may be obtained either by writing to the U.S. Nuclear Regulatory Commission, Division of Fuel Cycle Safety and Safeguards, Washington, DC 20555-0001, or by e-mail to *RidsNmssFcss@nrc.gov.* These reports, as specified by § 74.13 or 40.64 of this chapter, provide information concerning the special nuclear material and/or source material possessed, received, transferred, disposed of, or lost by the licensee. Each report must be submitted within 60 days of the beginning of the physical inventory required by § 72.72(b). The Commission may, when good cause is shown, permit a licensee to submit Material Balance Reports and Physical Inventory Listing Reports at other times. Each licensee required to report material balance and inventory information as described in this part, shall resolve any discrepancies identified during the report review and reconciliation process within 30 calendar days of notification of a discrepancy identified by NRC. The Commission's copy of this report must be submitted to the address specified in the instructions. These prescribed, computer-readable forms replace the DOE/NRC Forms 742 and 742C previously submitted in paper form. 8. In § 72.78 the section heading and paragraph
(a)are revised to read as follows: § 72.78 Nuclear material transaction reports.
(a)Except as provided in paragraph
(b)of this section, whenever the licensee transfers or receives or adjusts the inventory, in any manner, of special nuclear material as specified by § 74.15 and/or source material as specified by § 40.64 of this chapter, the licensee shall complete in computer-readable format a Nuclear Material Transaction Report as specified in the instructions in NUREG/BR-0006 and NMMSS Report D-24, “Personal Computer Data Input for NRC Licensees.” Copies of these instructions may be obtained either by writing to the U.S. Nuclear Regulatory Commission, Division of Fuel Cycle Safety and Safeguards, Washington, DC 20555-0001, or by e-mail to *RidsNmssFcss@nrc.gov.* Each licensee who transfers the material shall submit a Nuclear Material Transaction Report in computer-readable format as specified in the instructions no later than the close of business the next working day. Each licensee who receives the material shall submit a Nuclear Material Transaction Report in computer-readable format in accordance with instructions within ten
(10)days after the material is received. Each ISFSI licensee who receives spent fuel from a foreign source shall complete both the supplier's and the receiver's portion of the Nuclear Material Transaction Report, verify the identity of the spent fuel, and indicate the results on the receiver's portion of the form. These prescribed computer-readable forms replace the DOE/NRC Form 741 which have been previously submitted in paper form. PART 73—PHYSICAL PROTECTION OF PLANTS AND MATERIALS 9. The authority citation for part 73 continues to read as follows: Authority: Secs. 53, 161, 149, 68 Stat. 930, 948, as amended, sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2169, 2201); sec. 201, as amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 Stat. 2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109-58, 119 Stat. 594 (2005). Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C, 10155, 10161). Section 73.37(f) also issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841 note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100 Stat. 876 (42 U.S.C. 2169) and under sec. 652, Pub. L. 109-58, 119 Stat 810 (42 U.S.C. 2169). 10. In § 73.67, paragraph (g)(2)(ii) is revised to read as follows: § 73.67 Licensee fixed site and in-transit requirements for the physical protection of special nuclear material of moderate and low strategic significance.
(g)* * *
(2)* * *
(ii)Notify the shipper of receipt of the material as required in § 74.15 of this chapter, and PART 74—MATERIAL CONTROL AND ACCOUNTING OF SPECIAL NUCLEAR MATERIAL 11. The authority citation for part 74 continues to read as follows: Authority: Secs. 53, 57, 161, 182, 183, 68 Stat. 930, 932, 948, 953, 954, as amended, sec. 234, 83 Stat. 444, as amended, sec.1701, 106 Stat. 2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2201, 2232, 2233, 2282, 2297f); secs. 201, as amended 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). 12. In § 74.2, paragraph
(a)is revised to read as follows: § 74.2 Scope.
(a)The general reporting and recordkeeping requirements of subpart B of this part apply to each person licensed under this chapter who possesses special nuclear material in a quantity of one gram or more of contained uranium-235, uranium-233, or plutonium; or who transfers or receives a quantity of special nuclear material of one gram or more of contained uranium-235, uranium-233, or plutonium. The general reporting and recordkeeping requirements of subpart B of this part do not apply to licensees whose MC&A reporting and recordkeeping requirements are covered by §§ 72.72, 72.76, and 72.78 of this chapter. 13. In § 74.4, a new definition, *Reconciliation* , is added in alphabetical order to read as follows: § 74.4 Definitions. *Reconciliation* means the process of evaluating and comparing licensee reports required under this part to the projected material balances generated by the Nuclear Materials Management and Safeguards System. This process is considered complete when the licensee resolves any differences between the reported and projected balances, including those listed for foreign obligated materials. 14. In § 74.13, paragraph
(a)is revised to read as follows: § 74.13 Material status reports.
(a)Each licensee, including nuclear reactor licensees as defined in §§ 50.21 and 50.22 of this chapter, possessing, or who had possessed in the previous reporting period, at any one time and location, special nuclear material in a quantity totaling one gram or more of contained uranium-235, uranium-233, or plutonium shall complete and submit, in computer-readable format Material Balance Reports concerning special nuclear material that the licensee has received, produced, possessed, transferred, consumed, disposed, or lost. This prescribed computer-readable report replaces the DOE/NRC form 742 which has been previously submitted in paper form. The Physical Inventory Listing Report must be submitted with each Material Balance Report. This prescribed computer-readable report replaces the DOE/NRC Form 742C which has been previously submitted in paper form. Reports must be submitted for each Reporting Identification Symbol
(RIS)account including all holding accounts. Each licensee shall prepare and submit the reports described in this paragraph as specified in the instructions in NUREG/BR-0007 and NMMSS Report D-24 “Personal Computer Data Input for NRC Licensees.” Copies of these instructions may be obtained from the U.S. Nuclear Regulatory Commission, Division of Fuel Cycle Safety and Safeguards, Washington, DC 20555-0001, or by e-mail to *RidsNmssFcss@nrc.gov.* Each licensee subject to the requirements of § 74.51 shall compile a report as of March 31 and September 30 of each year and file it within 30 days after the end of the period covered by the report. Licensees subject to the requirements of §§ 74.19(c), 74.31(c)(5), 74.33(c)(4), or 74.43(c)(6) shall submit a report within 60 calendar days of the beginning of the physical inventory. All other licensees shall submit a report no later than March 31 of each year. The Commission may permit a licensee to submit the reports at other times for good cause. Each licensee required to report material balance, and inventory information, as detailed in this part, shall resolve any discrepancies identified during the report review and reconciliation process within 30 calendar days of notification of a discrepancy identified by NRC. 15. In § 74.15 the section heading and paragraph
(a)are revised, paragraph
(c)is redesignated as a new paragraph (d), and a new paragraph
(c)is added to read as follows: § 74.15 Nuclear material transaction reports.
(a)Each licensee who transfers or receives special nuclear material in a quantity of one gram or more of contained uranium-235, uranium-233, or plutonium shall complete in computer-readable format a Nuclear Material Transaction Report. In addition, each licensee who adjusts the inventory in any manner, other than for transfers and receipts, shall submit a Nuclear Material Transaction Report, in computer-readable format, to coincide with the submission of the Material Balance report. This shall be done as specified in the instructions in NUREG/BR-0006 and NMMSS Report D-24, “Personal Computer Data Input for NRC Licensees.” Copies of these instructions NUREG/BR-0006 and NMMSS Report D-24, “Personal Computer Data Input for NRC Licensees” may be obtained either by writing the U.S. Nuclear Regulatory Commission, Division of Fuel Cycle Safety and Safeguards, Washington, DC 20555-0001, or by e-mail to *RidsNmssFcss@nrc.gov.* Each licensee who transfers the material shall submit a Nuclear Material Transaction Report in computer-readable format as specified in the instructions no later than the close of business the next working day. Each licensee who receives the material shall submit a Nuclear Material Transaction Report in computer-readable format in accordance with instructions within ten
(10)days after the material is received. This prescribed computer-readable format replaces the DOE/NRC Form 741 which has been previously submitted in paper form.
(c)Each licensee who ships special nuclear material in a quantity of one gram or more of contained uranium-235, uranium-233, or plutonium to foreign recipient shall complete in computer-readable format the supplier's portion of the Nuclear Material Transaction Report. The licensee shall complete the receiver's portion of the Nuclear Material Transaction Report only if a significant shipper-receiver difference as described in §§ 74.31, 74.43, or 74.59, as applicable, is identified. PART 150—EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274 16. The authority citation for part 150 continues to read as follows: Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73 Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); sec. 651(e), Pub. L. 109-58, 119 Stat. 806-810 (42 U.S.C. 2014, 2021, 2021b, 2111). Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued under secs. 11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84, 92 Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section 150.14 also issued under sec. 53, 68 Stat. 930, as amended (42 U.S.C. 2073). Section 150.15 also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 150.17a also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 150.30 also issued under sec. 234, 83 Stat. 444 (42 U.S.C. 2282). 17. In § 150.3, a new definition, *Reconciliation,* is added in alphabetical order to read as follows: § 150.3 Definitions. *Reconciliation* means the process of evaluating and comparing licensee reports required under this part to the projected material balances generated by the Nuclear Materials Management and Safeguards System. This process is considered complete when the licensee resolves any differences between the reported and projected balances, including those listed for foreign obligated materials. 18. In § 150.8, paragraph (c)(1) is revised, paragraph (c)(2) is redesignated as a new paragraph (c)(3), and a new paragraph (c)(2) is added to read as follows: § 150.8 Information collection requirements: OMB Approval.
(c)* * *
(1)In § 150.16, DOE/NRC FORM 741 and its computer-readable format are approved under control number 3150-0003.
(2)In § 150.17, DOE/NRC Form 742 and its computer-readable format are approved under control number 3150-0004, and DOE/NRC Form 742C and its computer-readable format are approved under control number 3150-0058. 19. In § 150.16, the section heading and paragraph
(a)are revised to read as follows: § 150.16 Submission to Commission of nuclear material transaction reports. (a)(1) Each person who transfers or receives special nuclear material in a quantity of one gram or more of contained uranium-235, uranium-233, or plutonium under an Agreement State license shall complete and submit in computer-readable format Nuclear Material Transaction Reports as specified in the instructions in NUREG/BR-0006 and NMMSS Report D-24, “Personal Computer Data Input for NRC Licensees.” In addition, each person who adjusts the inventory in any manner, other than for transfers and receipts, shall submit in computer-readable format Nuclear Material Transaction Reports as specified in the instructions in NUREG/BR-0006 and NMMSS Report D-24, “Personal Computer Data Input for NRC Licensees.” Each licensee who receives special nuclear material in a quantity of one gram or more of contained uranium-235, uranium-233, or plutonium from a foreign source, or who ships special nuclear material in a quantity of one gram or more of contained uranium-235, uranium-233, or plutonium to a foreign source, shall submit the licensee portion of this information as specified in the instructions in this part. The applicable foreign facility portion of the form must be completed and submitted for imports. The foreign facility portion of the form must be completed for exports only if a significant shipper-receiver difference as described in §§ 74.31, 74.43, or 74.59 of this part, as applicable, is identified. Each person who transfers the material shall submit a Nuclear Material Transaction Report in computer-readable format as specified in the instructions no later than the close of business the next working day. Each person who receives special nuclear material shall submit a Nuclear Material Transaction Report in the computer-readable format as specified in the instructions within ten
(10)days after the special nuclear material is received. Copies of these instructions may be obtained either by writing to the U.S. Nuclear Regulatory Commission, Division of Fuel Cycle Safety and Safeguards, Washington, DC 20555-0001, or by e-mail to *RidsNmssFcss@nrc.gov.* These prescribed computer-readable formats replace the DOE/NRC Form 741 which have been previously submitted in paper form.
(2)Except as specified in §§ 150.17(d) and 150.17a, each person who, under an Agreement State specific license transfers, receives, or adjusts the inventory in any manner, of uranium or thorium source material with foreign obligations by one kilogram or more; imports or exports one kilogram or more of uranium or thorium source material; or uses one kilogram or more of any uranium or thorium source material in enrichment services, downblending uranium that has an initial enrichment of the U 235 isotope of 10 percent or more, or in the fabrication of mixed-oxide fuels, shall complete and submit in computer-readable format Nuclear Material Transaction Reports as specified in the instructions in NUREG/BR-0006 and NMMSS Report D-24, “Personal Computer Data Input for NRC Licensees.” Each person who, under an Agreement State specific license exports one kilogram or more of uranium or thorium source material shall complete in the format listed above the licensee's portion of the Nuclear Material Transaction Report unless there is indication of loss, theft, or diversion as discussed in § 40.64(c)(1) of this chapter is identified, in which case both the licensee's and the foreign facility's information shall be reported. For imports, the shipper's portion of the form must also be completed. Copies of the instructions may be obtained either by writing to the U.S. Nuclear Regulatory Commission, Division of Fuel Cycle Safety and Safeguards, Washington, DC 20555-0001, or by e-mail to *RidsNmssFcss@nrc.gov.* Each licensee who transfers the material shall submit a Nuclear Material Transaction Report in computer-readable format as specified in the instructions no later than the close of business the next working day. Each licensee who receives the material shall submit a Nuclear Material Transaction Report in computer-readable format in accordance with instructions within ten
(10)days after the material is received. The Commission's copy of the report must be submitted to the address specified in the instructions. These prescribed computer-readable forms replace the DOE/NRC Form 741 which have been previously submitted in paper form. 20. In § 150.17, the section heading and paragraphs
(a)and
(b)are revised to read as follows: § 150.17 Submission to Commission of nuclear material status reports.
(a)Except as specified in paragraph
(d)of this section and § 150.17a, each person possessing, or who had possessed in the previous reporting period, at any one time and location, under an Agreement State license, special nuclear material in a quantity totaling one gram or more of contained uranium-235, uranium-233, or plutonium, shall complete and submit, in computer-readable format Material Balance Reports concerning special nuclear material that the licensee has received, produced, possessed, transferred, consumed, disposed of, or lost. This prescribed computer-readable report replaces the DOE/NRC Form 742 which has been previously submitted in paper form. The Physical Inventory Listing Report must be submitted with each Material Balance Report. This prescribed computer-readable report replaces the DOE/NRC Form 742C which has been previously submitted in paper form. Each licensee shall prepare and submit the reports described in this paragraph as specified in the instructions in NUREG/BR-0007 and NMMSS Report D-24 “Personal Computer Data Input for NRC Licensees.” Copies of these instructions may be obtained from the U.S. Nuclear Regulatory Commission, Division of Fuel Cycle Safety and Safeguards, Washington, DC 20555-0001, or by e-mail to *RidsNmssFcss@nrc.gov.* Each person subject to this requirement shall submit a report no later than March 31 of each year. The Commission may, when good cause is shown, permit a licensee to submit Material Balance Reports and Physical Inventory Listing Reports at other times. Each licensee required to report material balance, and inventory information, as described in this part, shall resolve any discrepancies identified during the report review and reconciliation process within 30 calendar days of notification of a discrepancy identified by NRC.
(b)Except as specified in paragraph
(d)of this section and § 150.17a, each person possessing, or who had possessed in the previous reporting period, at any one time and location, under an Agreement State license:
(1)One kilogram or more of uranium or thorium source material with foreign obligations, shall document holdings as of September 30 of each year and submit to the Commission within 30 days. Alternatively, these reports may be submitted with the licensee's material status reports on special nuclear material filed under part 72 or 74 of this chapter. This statement must be submitted to the address specified in the reporting instructions in NUREG/BR-007, and include the Reporting Identification Symbol
(RIS)assigned by the Commission.
(2)One kilogram or more of uranium or thorium source material in the operation of enrichment services, downblending uranium that has an initial enrichment of the U 235 isotope of 10 percent or more, or in the fabrication of mixed-oxide fuels shall complete and submit, in computer-readable format, Material Balance and Physical Inventory Listing Reports concerning source material that the licensee has received, produced, possessed, transferred, consumed, disposed, or lost. Reports must be submitted for each Reporting Identification Symbol
(RIS)account including all holding accounts. Each licensee shall prepare and submit these reports as specified in the instructions in NUREG/BR-0007 and NMMSS Report D-24, “Personal Computer Data Input for NRC Licensees.” These reports must document holdings as of September 30 of each year and submitted to the Commission within 30 days. Alternatively, these reports may be submitted with the licensee's material status reports on special nuclear material filed under part 72 or 74 of this chapter. Copies of the reporting instructions may be obtained by writing to the U.S. Nuclear Regulatory Commission, Division of Fuel Cycle Safety and Safeguards, Washington, DC 20555-0001, or by e-mail to *RidsNmssFcss@nrc.gov.* Each licensee required to report material balance, and inventory information, as described in this part, shall resolve any discrepancies identified during the report review and reconciliation process within 30 calendar days of the notification of a discrepancy identified by the NRC. Dated at Rockville, Maryland, this 3rd day of June 2008. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. [FR Doc. E8-12830 Filed 6-6-08; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection 19 CFR Part 192 [CBP Dec. No. 08-20] Mandatory Pre-Departure Filing of Export Cargo Information Through the Automated Export System AGENCY: Customs and Border Protection, Department of Homeland Security. ACTION: General notice of compliance. SUMMARY: This notice informs the public of the date when U.S. Customs and Border Protection
(CBP)will require compliance with its regulations pertaining to the mandatory, pre-departure electronic filing of export information through the Automated Export System (AES). CBP regulations at 19 CFR 192.14 setting forth requirements for the advance electronic filing of export information by vessel, air, truck, and rail carriers provide a compliance date contingent upon the redesign of CBP's AES commodity module and the effective date of Department of Commerce
(DOC)regulations pertaining to mandatory electronic filing of export information. Since the redesign of the AES commodity module is complete, and the DOC regulations were published as a final rule on June 2, 2008, with an effective date of July 2, 2008, and an implementation date of September 30, 2008, the CBP regulations must be complied with starting September 30, 2008. DATES: The compliance date for the CBP regulations pertaining to the mandatory, pre-departure electronic filing of export cargo information through the AES (19 CFR 192.14) is September 30, 2008. FOR FURTHER INFORMATION CONTACT: Gregory Olsavsky, Director, Cargo Control Division, Office of Field Operations, 202-344-1049. SUPPLEMENTARY INFORMATION: On December 5, 2003, CBP published a final rule in the **Federal Register** (68 FR 68140) amending the CBP regulations pertaining to the filing of export cargo information through the AES (19 CFR, Part 192, Subpart B). Specifically, the final rule added new § 192.14 to require (with a provision for exceptions) that vessel, air, truck, and rail carriers electronically file export cargo information through a CBP-approved electronic data interchange system (then and still the AES) and that such filing occur prior to departure from the United States for vessel and air carriers (24 hours for vessel carriers, two hours prior to scheduled departure time for air carriers) and prior to arrival at the border for truck and rail carriers (one hour for truck carriers, two hours for rail carriers). (The actual filing responsibility is imposed on the U.S. principal party in interest (USPPI), or its agent, representing the carrier.) These regulations were published pursuant to section 343(a) of the Trade Act of 2002, as amended by the Maritime Security Act (19 U.S.C. 2071 note). (See the published rule for a further discussion of these provisions and their underlying authorities.) Under the 2003 CBP final rule (specifically, § 192.14(e)), the requirements of these regulations were set to be implemented upon the completion of the redesign of CBP's AES commodity module and the effective date of DOC regulations pertaining to mandatory electronic filing of export cargo information. The redesign of the AES is complete, and the DOC has recently published its regulations. On June 2, 2008, the Bureau of the Census (U.S. Census Bureau or Census Bureau), DOC, published a final rule in the **Federal Register** (73 FR 31548) amending its Foreign Trade regulations to implement provisions of the Foreign Relations Authorization Act (FRA Act). Under the FRA Act, the Secretary of Commerce, with the concurrence of the Secretary of State and the Secretary of Homeland Security, is authorized to publish regulations mandating that all persons required to file export information via a Shippers Export Declaration
(SED)under chapter 9 of title 13, United States Code (13 U.S.C.) do so through the AES. Thus, under the final rule, the Census Bureau is requiring mandatory filing of export cargo information through CBP's AES (or through AESDirect, the Census Bureau's free Internet-based system) for all shipments: Vessel, aircraft, truck, and rail. (See the published rule for a further discussion of these provisions and their underlying authorities.) The publication of these DOC regulations and the effective date set forth in those DOC regulations trigger the effectiveness of the CBP regulations. The effective date of the Census Bureau final rule is July 2, 2008, but the Census Bureau will not commence implementation of the final rule's provisions until September 30, 2008. Accordingly, the compliance date for the CBP regulations pertaining to pre-departure electronic filing (through AES) of export cargo information, pursuant to 19 CFR 192.14(e), is the implementation date of the DOC final rule, September 30, 2008. After September 30, 2008, CBP will publish a technical amendment to the CFR amending § 192.14 to reflect the compliance date. Dated: June 2, 2008. Jayson P. Ahern, Acting Commissioner, Customs and Border Protection. [FR Doc. E8-12627 Filed 6-6-08; 8:45 am] BILLING CODE 9111-14-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 372 [EPA-HQ-TRI-2007-0318; FRL-8577-1] RIN 2025-AA22 Community Right-To-Know; Corrections and 2007 Updates to the Toxics Release Inventory
(TRI)North American Industry Classification System (NAICS) Reporting Codes; Final Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is amending the regulations to make certain updates and corrections to the list of North American Industry Classification System (NAICS) codes subject to reporting under the Toxics Release Inventory
(TRI)to reflect the Office of Management and Budget
(OMB)2007 NAICS revision. EPA is making corrections to the list of NAICS codes subject to reporting under TRI that was published on June 6, 2006, in the final rule adopting NAICS for TRI reporting and is correcting a longstanding typographical error in the regulatory text. DATES: This final rule is effective on August 8, 2008. Facilities will be required to report to TRI using 2007 NAICS codes beginning with TRI reporting forms that are due on July 1, 2009, covering releases and other waste management quantities for the 2008 calendar year. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-TRI-2007-0318. 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, e.g., CBI or other information for which disclosure is restricted by statute. Certain other materials, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the OEI Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Public Reading Room is open Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the OEI Docket is
(202)566-1752. FOR FURTHER INFORMATION CONTACT: For general information on TRI, contact the Emergency Planning and Community Right-to-Know Hotline at
(800)424-9346 or
(703)412-9810, TDD
(800)553-7672, *http://www.epa.gov/epaoswer/hotline/.* For specific information on this rulemaking contact: Judith Kendall, Toxics Release Inventory Program Division, Mailcode 2844T, OEI, Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460; Telephone:
(202)566-0750; Fax:
(202)566-0741; e-mail: *kendall.judith@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information Does This Action Apply to Me? Entities that may be affected by this action are those facilities that have 10 or more full-time employees or the equivalent 20,000 hours per year that manufacture, process, or otherwise use toxic chemicals listed on the TRI, and that are required under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and section 6607 of the Pollution Prevention Act
(PPA)to report annually to EPA and States their environmental releases and other waste management quantities of covered chemicals. Under Executive Order 13423, published on January 24, 2007 (72 FR 3919), all federal facilities are required to comply with the provisions set forth in section 313 of EPCRA and section 6607 of the PPA. On April 2, 2007, the White House Council on Environmental Quality
(CEQ)issued *Instructions for Implementing Executive Order 13423,* including annual reporting to the TRI program. Executive departments and agencies are required to implement the activities described in the instructions in accordance with sections 1, 2, 3 and 4(b) of the Executive Order. To determine whether your facility is affected by this action, you should carefully examine the applicability criteria in part 372, subpart B of Title 40 of the Code of Federal Regulations. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section. II. What Is EPA's Statutory Authority for Taking This Action? EPA is finalizing this action under sections 313(g)(1) and 328 of EPCRA, 42 U.S.C. 11023(g)(1) and 11048. EPCRA is also referred to as Title III of the Superfund Amendments and Reauthorization Act of 1986
(SARA)(Pub. L. 99-499). In general, section 313 of EPCRA requires owners and operators of facilities in specified Standard Industrial Classification
(SIC)codes that manufacture, process, or otherwise use a listed toxic chemical in amounts above specified threshold levels to report certain facility specific information about such chemicals, including the annual releases and other waste management quantities. Section 313(g)(1) of EPCRA requires EPA to publish a uniform toxic chemical release form for these reporting purposes, and it also prescribes, in general terms, the types of information that must be submitted on the form. Section 313(g)(1)(A) requires owners and operators of facilities that are subject to section 313 requirements to report the principal business activities at the facilities. Congress also granted EPA broad rulemaking authority to allow the Agency to fully implement the statute. EPCRA section 328 authorizes the “Administrator [to] prescribe such regulations as may be necessary to carry out this chapter.” 42 U.S.C. 11048. Consistent with these authorities, EPA amended 40 CFR Part 372 to include the 2002 NAICS codes that correspond to the SIC codes that are currently subject to section 313 of EPCRA and section 6607 of the PPA. 71 FR 32464 (June 6, 2006). EPA is now amending 40 CFR Part 372 to include OMB's revised NAICS codes for 2007. Owners and operators of facilities that are subject to section 313 must identify their principal business activities using 2007 NAICS codes beginning with TRI reporting forms that are due on July 1, 2009, covering releases and other waste management quantities at the facility for the 2008 calendar year. III. Background Information What Is the General Background for This Action? EPA promulgated a final TRI NAICS rule on June 6, 2006, to amend its regulations for TRI, found at 40 CFR Part 372, to include the NAICS codes. The list of TRI NAICS codes that appeared in the final rule was developed from the 2002 NAICS revision. EPA is now updating that list based on the OMB 2007 NAICS revision. In addition, certain TRI-covered NAICS codes and certain exceptions and limitations to TRI-covered NAICS codes did not appear in the June 6, 2006, notice's list of TRI-covered NAICS codes and are now being included. IV. Final Action A. What Is the Agency's Final Action? EPA is amending 40 CFR Part 372 to correct the list of NAICS codes for TRI reporting and to update the list using 2007 NAICS codes so that the NAICS codes listed in the TRI regulations accurately reflect the universe of covered facilities under section 313 of EPCRA and section 6607 of the PPA. In addition, unrelated to the NAICS codes, EPA is using this rulemaking as an opportunity to correct a reference to a nonexistent section in Part 372. Specifically, § 372.5 (Persons subject to this part) reads, in pertinent part “If the owner and operator of a facility are different persons, only one need report under § 372.17 or provide a notice under § 372.45 for each toxic chemical in a mixture or trade name product distributed from the facility.” There is no 40 CFR 372.17 and therefore, reference to this section is an error which the Agency is proposing to revise to refer to the appropriate section on TRI reporting requirements, § 372.30 (Reporting requirements and schedule for reporting). B. Will This Final Rule Affect the Universe of Facilities That Are Currently Required To Report to EPA and the States? This action will not affect the universe of facilities that is currently required to report under section 313 of EPCRA and section 6607 of the PPA because EPA is not adding or deleting industry groups from the list of industries currently subject to section 313 reporting requirements. C. How Will Section 313 Reporting Requirements Change as a Result of This Rule? TRI reporting requirements will not change as a result of this final rule. This rule revises the NAICS codes to reflect the OMB NAICS 2007 revision and corrects inadvertent omissions that occurred when identifying the NAICS codes that are associated with the SIC codes that are covered by the statute. This rule will help clarify that certain sectors are still required to report to TRI and to accurately reflect all covered sectors in the list of TRI-covered NAICS codes. D. Office of Management and Budget
(OMB)Updates to NAICS OMB plans to update NAICS every five years with the next update scheduled for 2012. If necessary, the TRI program will issue a **Federal Register** notice to update the TRI NAICS codes at that time. V. Summary of Public Comments and EPA Responses No comments were received during the 30-day comment period following publication of the proposed rule to update TRI NAICS codes. VI. What Additional Reporting Burden Is Associated With This Action? This rule adds no new reporting requirements, and there will be no net increase in respondent burden. Facilities were first required to report their toxic chemical releases and other waste management activities to EPA using NAICS codes beginning in 2007 for reporting year 2006. Covered facilities should refer to the updated NAICS code list in 40 CFR 372.23 when reporting. Crosswalk tables between 2007 NAICS and 2002 NAICS can be found on the Internet at *http://www.census.gov/epcd/www/naics.html.* VII. Regulatory Assessment Requirements A. Executive Order 12866 This action is not a “significant regulatory action” under the terms of Executive Order
(EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. B. Paperwork Reduction Act This action does not impose any new information collection burden. Facilities that are affected by the rule are already required to report their industrial classification codes on the approved reporting forms under section 313 of EPCRA and 6607 of the PPA. The Office of Management and Budget
(OMB)has previously approved the information collection requirements contained in the existing regulations at 40 CFR part 372 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* and has assigned the Information Collection Request
(ICR)OMB control numbers 2070-0093 (EPA ICR No. 1363-15) for Form R and 2070-0143 (EPA ICR No. 1704-09) for Form A. A copy of the OMB approved Information Collection Requests
(ICRs)may be obtained from Rick Westlund, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling
(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. The Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq. The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, small entity is defined as:
(1)A business that is classified as a “small business” by the Small Business Administration at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities directly regulated by this rule are TRI reporting facilities that have 10 or more full-time employee equivalents (i.e., a total of 20,000 hours or greater). We have determined that, since this rule makes only very minor revisions and updates to the TRI NAICS codes that are already being used by TRI-covered facilities on TRI reporting forms, the resulting burden due to these minor changes is negligible, and will not have a significant economic impact on a substantial number of small entities. D. Unfunded Mandates Reform Act EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under Section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of the regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objective of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Because this rule simply updates and makes very minor corrections to the TRI NAICS codes that have already been implemented for reporting by TRI facilities, the rule will not impose substantial direct compliance costs on TRI reporting facilities regulated under section 313 of EPCRA and 6607 of the PPA. E. Executive Order 13132, Federalism Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This rule does not have federalism implications. It will not have a substantial direct effect on 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. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 9, 2000) requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” EPA has concluded that this rule may have tribal implications as TRI reporting facilities may be on tribal lands. However, the rule simply updates and makes corrections to the TRI NAICS codes that have already been implemented for reporting by TRI facilities, including those on tribal lands. As such, the rule will neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, etc.) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order
(EO)12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because the rule addresses information collection and does not affect the level of protection provided to human health or the environment. K. Congressional Review Act 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. Section 804 exempts from section 801 the following types of rules:
(1)Rules of particular applicability;
(2)rules relating to agency management or personnel; and
(3)rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties. List of Subjects in 40 CFR Part 372 Environmental protection, Community right-to-know, Reporting and recordkeeping requirements, Toxic chemicals. Dated: June 3, 2008. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows: PART 372—[AMENDED] 1. The authority citation for part 372 continues to read as follows: Authority: 42 U.S.C. 11023 and 11048. § 372.5 [Amended] 2. Amend § 372.5, by removing the reference to “372.17” and adding in its place the reference “372.30”. 3. Amend § 372.22 by revising paragraph
(b)introductory text to read as follows: § 372.22 Covered facilities for toxic chemical release reporting.
(b)The facility is in a Standard Industrial Classification
(SIC)(as in effect on January 1, 1987) major group or industry code listed in § 372.23(a), for which the corresponding North American Industry Classification System (NAICS) (as in effect on January 1, 2007, for reporting year 2008 and thereafter) subsector and industry codes are listed in § 372.23(b) and
(c)by virtue of the fact that it meets one of the following criteria: 4. Amend § 372.23 by revising paragraphs
(b)and
(c)to read as follows: § 372.23 SIC and NAICS codes to which this Part applies.
(b)NAICS codes that correspond to SIC codes 20 through 39. Subsector code or industry code Exceptions and/or limitations 113310 Logging 311 Food Manufacturing Except 311119—Exception is limited to facilities primarily engaged in Custom Grain Grinding for Animal Feed (previously classified under SIC 0723, Crop Preparation Services for Market, Except Cotton Ginning); Except 311330—Exception is limited to facilities primarily engaged in the retail sale of candy, nuts, popcorn and other confections not for immediate consumption made on the premises (previously classified under SIC 5441, Candy, Nut, and Confectionery Stores); Except 311340—Exception is limited to facilities primarily engaged in the retail sale of candy, nuts, popcorn and other confections not for immediate consumption made on the premises (previously classified under SIC 5441, Candy, Nut, and Confectionery Stores); Except 311811—Retail Bakeries (previously classified under SIC 5461, Retail Bakeries); Except 311611—Exception is limited to facilities primarily engaged in Custom Slaughtering for individuals (previously classified under SIC 0751, Livestock Services, Except Veterinary, Slaughtering, custom: for individuals); Except 311612—Exception is limited to facilities primarily engaged in the cutting up and resale of purchased fresh carcasses for the trade (including boxed beef), and in the wholesale distribution of fresh, cured, and processed (but not canned) meats and lard (previously classified under SIC 5147, Meats and Meat Products); 312 Beverage and Tobacco Product Manufacturing Except 312112—Exception is limited to facilities primarily engaged in bottling mineral or spring water (previously classified under SIC 5149, Groceries and Related Products, NEC); Except 312229—Exception is limited to facilities primarily engaged in providing Tobacco Sheeting Services (previously classified under SIC 7389, Business Services, NEC); 313 Textile Mills Except 313311—Exception is limited to facilities primarily engaged in converting broadwoven piece goods and broadwoven textiles, (previously classified under SIC 5131, Piece Goods Notions, and Other Dry Goods, broadwoven and non-broadwoven piece good converters), and facilities primarily engaged in sponging fabric for tailors and dressmakers (previously classified under SIC 7389, Business Services, NEC (Sponging fabric for tailors and dressmakers)); Except 313312—Exception is limited to facilities primarily engaged in converting narrow woven Textiles, and narrow woven piece goods, (previously classified under SIC 5131, Piece Goods Notions, and Other Dry Goods, converters, except broadwoven fabric); 314 Textile Product Mills Except 314121—Exception is limited to facilities primarily engaged in making Custom drapery for retail sale (previously classified under SIC 5714, Drapery, Curtain, and Upholstery Stores); Except 314129—Exception is limited to facilities primarily engaged in making Custom slipcovers for retail sale (previously classified under SIC 5714, Drapery, Curtain, and Upholstery Stores); Except 314999—Exception is limited to facilities primarily engaged in Binding carpets and rugs for the trade, Carpet cutting and binding, and Embroidering on textile products (except apparel) for the trade (previously classified under SIC 7389, Business Services Not Elsewhere Classified, Embroidering of advertising on shirts and Rug binding for the trade); 315 Apparel Manufacturing Except 315222—Exception is limited to custom tailors primarily engaged in making and selling men's and boys' suits, cut and sewn from purchased fabric (previously classified under SIC 5699, Miscellaneous Apparel and Accessory Stores (custom tailors)); Except 315223—Exception is limited to custom tailors primarily engaged in making and selling men's and boys' dress shirts, cut and sewn from purchased fabric (previously classified under SIC 5699, Miscellaneous Apparel and Accessory Stores (custom tailors)); Except 315233—Exception is limited to custom tailors primarily engaged in making and selling bridal dresses or gowns, or women's, misses' and girls' dresses cut and sewn from purchased fabric (except apparel contractors)(custom dressmakers) (previously classified under SIC Code 5699, Miscellaneous Apparel and Accessory Stores); 316 Leather and Allied Product Manufacturing 321 Wood Product Manufacturing 322 Paper Manufacturing 323 Printing and Related Support Activities Except 323114—Exception is limited to facilities primarily engaged in reproducing text, drawings, plans, maps, or other copy, by blueprinting, photocopying, mimeographing, or other methods of duplication other than printing or microfilming ( *i.e.* , instant printing) (previously classified under SIC 7334, Photocopying and Duplicating Services, (instant printing)); 324 Petroleum and Coal Products Manufacturing 325 Chemical Manufacturing Except 325998—Exception is limited to facilities primarily engaged in Aerosol can filling on a job order or contract basis (previously classified under SIC 7389, Business Services, NEC (aerosol packaging)); 326 Plastics and Rubber Products Manufacturing Except 326212—Tire Retreading, (previously classified under SIC 7534, Tire Retreading and Repair Shops (rebuilding)); 327 Nonmetallic Mineral Product Manufacturing Except 327112—Exception is limited to facilities primarily engaged in manufacturing and selling pottery on site (previously classified under SIC 5719, Miscellaneous Homefurnishing Stores); 331 Primary Metal Manufacturing 332 Fabricated Metal Product Manufacturing 333 Machinery Manufacturing 334 Computer and Electronic Product Manufacturing Except 334611—Software Reproducing (previously classified under SIC 7372, Prepackaged Software, (reproduction of software)); Except 334612—Exception is limited to facilities primarily engaged in mass reproducing pre-recorded Video cassettes, and mass reproducing Video tape or disk (previously classified under SIC 7819, Services Allied to Motion Picture Production (reproduction of Video)); 335 Electrical Equipment, Appliance, and Component Manufacturing Except 335312—Exception is limited to facilities primarily engaged in armature rewinding on a factory basis (previously classified under SIC 7694 (Armature Rewinding Shops (remanufacturing)); 336 Transportation Equipment Manufacturing 337 Furniture and Related Product Manufacturing Except 337110—Exception is limited to facilities primarily engaged in the retail sale of household furniture and that manufacture custom wood kitchen cabinets and counter tops (previously classified under SIC 5712, Furniture Stores (custom wood cabinets)); Except 337121—Exception is limited to facilities primarily engaged in the retail sale of household furniture and that manufacture custom made upholstered household furniture (previously classified under SIC 5712, Furniture Stores (upholstered, custom made furniture)); Except 337122—Exception is limited to facilities primarily engaged in the retail sale of household furniture and that manufacture nonupholstered, household type, custom wood furniture (previously classified under SIC 5712, Furniture Stores (custom made wood nonupholstered household furniture except cabinets)); 339 Miscellaneous Manufacturing Except 339113—Exception is limited to facilities primarily engaged in manufacturing orthopedic devices to prescription in a retail environment (previously classified under SIC 5999, Miscellaneous Retail Stores, NEC); Except 339115—Exception is limited to lens grinding facilities that are primarily engaged in the retail sale of eyeglasses and contact lenses to prescription for individuals (previously classified under SIC 5995, Optical Goods Stores (optical laboratories grinding of lenses to prescription)); Except 339116—Dental Laboratories (previously classified under SIC 8072, Dental Laboratories); 111998 All Other Miscellaneous Crop Farming Limited to facilities primarily engaged in reducing maple sap to maple syrup (previously classified under SIC 2099, Food Preparations, NEC, Reducing Maple Sap to Maple Syrup); 211112 Natural Gas Liquid Extraction Limited to facilities that recover sulfur from natural gas (previously classified under SIC 2819, Industrial Inorganic chemicals, NEC (recovering sulfur from natural gas)); 212324 Kaolin and Ball Clay Mining Limited to facilities operating without a mine or quarry and that are primarily engaged in beneficiating kaolin and clay (previously classified under SIC 3295, Minerals and Earths, Ground or Otherwise Treated (grinding, washing, separating, etc. of minerals in SIC 1455)); 212325 Mining Limited to facilities operating without a mine or quarry and that are primarily engaged in beneficiating clay and ceramic and refractory minerals (previously classified under SIC 3295, Minerals and Earths, Ground or Otherwise Treated (grinding, washing, separating, etc. of minerals in SIC 1459)); 212393 Other Chemical and Fertilizer Mineral Mining Limited to facilities operating without a mine or quarry and that are primarily engaged in beneficiating chemical or fertilizer mineral raw materials (previously classified under SIC 3295, Minerals and Earths, Ground or Otherwise Treated (grinding, washing, separating, etc. of minerals in SIC 1479)); 212399 All Other Nonmetallic Mineral Mining Limited to facilities operating without a mine or quarry and that are primarily engaged in beneficiating nonmetallic minerals (previously classified under SIC 3295, Minerals and Earths, Ground or Otherwise Treated (grinding, washing, separating, etc. of minerals in SIC 1499)); 488390 Other Support Activities for Water Transportation Limited to facilities that are primarily engaged in providing routine repair and maintenance of ships and boats from floating drydocks (previously classified under SIC 3731, Shipbuilding and Repairing (floating drydocks not associated with a shipyard)); 511110 Newspaper Publishers 511120 Periodical Publishers 511130 Book Publishers 511140 Directory and Mailing List Publishers Except facilities that are primarily engaged in furnishing services for direct mail advertising including Address list compilers, Address list publishers, Address list publishers and printing combined, Address list publishing , Business directory publishers, Catalog of collections publishers, Catalog of collections publishers and printing combined, Mailing list compilers, Directory compilers, and Mailing list compiling services (previously classified under SIC 7331, Direct Mail Advertising Services (mailing list compilers)); 511191 Greeting Card Publishers 511199 All Other Publishers 512220 Integrated Record Production/Distribution 512230 Music Publishers Except facilities primarily engaged in Music copyright authorizing use, Music copyright buying and licensing, and Music publishers working on their own account (previously classified under SIC 8999, Services, NEC (music publishing)); 519130 Internet Publishing and Broadcasting and Web Search Portals Limited to facilities primarily engaged in Internet newspaper publishing (previously classified under SIC 2711, Newspapers: Publishing, or Publishing and Printing), Internet periodical publishing (previously classified under SIC 2721, Periodicals: Publishing, or Publishing and Printing), Internet book publishing (previously classified under SIC 2731, Books: Publishing, or Publishing and Printing), Miscellaneous Internet publishing (previously classified under SIC 2741, Miscellaneous Publishing), Internet greeting card publishers (previously classified under SIC 2771, Greeting Cards); Except for facilities primarily engaged in web search portals; 541712 Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology) Limited to facilities that are primarily engaged in Guided missile and space vehicle engine research and development (previously classified under SIC 3764, Guided Missile and Space Vehicle Propulsion Units and Propulsion Unit Parts), and in Guided missile and space vehicle parts (except engines) research and development (previously classified under SIC 3769, Guided Missile and Space Vehicle Parts and Auxiliary Equipment, Not Elsewhere Classified); 811490 Other Personal and Household Goods Repair and Maintenance Limited to facilities that are primarily engaged in repairing and servicing pleasure and sail boats without retailing new boats (previously classified under SIC 3732, Boat Building and Repairing (pleasure boat building));
(c)NAICS codes that correspond to SIC codes other than SIC codes 20 through 39. Subsector or industry code Exceptions and/or limitations 212111 Bituminous Coal and Lignite Surface Mining 212112 Bituminous Coal and Underground Mining 212113 Anthracite Mining 212221 Gold Ore Mining 212222 Silver Ore Mining 212231 Lead Ore and Zinc Ore Mining 212234 Copper Ore and Nickel Ore Mining 212299 Other Metal Ore Mining 221111 Hydroelectric Power Generation Limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce. 221112 Fossil Fuel Electric Power Generation Limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce. 221113 Nuclear Electric Power Generation Limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce. 221119 Other Electric Power Generation Limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce. 221121 Electric Bulk Power Transmission and Control Limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce. 221122 Electric Power Distribution Limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce. 221330 Steam and Air Conditioning Supply Limited to facilities engaged in providing combinations of electric, gas, and other services, not elsewhere classified (N.E.C.) (previously classified under SIC 4939, Combination Utility Services Not Elsewhere Classified.) 424690 Other Chemical and Allied Products Merchant Wholesalers. 424710 Petroleum Bulk Stations and Terminals 425110 Business to Business Electronic Markets Limited to facilities previously classified in SIC 5169, Chemicals and Allied Products, Not Elsewhere Classified. 425120 Wholesale Trade Agents and Brokers Limited to facilities previously classified in SIC 5169, Chemicals and Allied Products, Not Elsewhere Classified. 562112 Hazardous Waste Collection Limited to facilities primarily engaged in solvent recovery services on a contract or fee basis (previously classified under SIC 7389, Business Services, NEC). 562211 Hazardous Waste Treatment and Disposal Limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 *et seq.* 562212 Solid Waste Landfill Limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 *et seq.* 562213 Solid Waste Combustors and Incinerators Limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 *et seq.* 562219 Other Nonhazardous Waste Treatment and Disposal Limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 *et seq.* 562920 Materials Recovery Facilities Limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 *et seq.* [FR Doc. E8-12856 Filed 6-6-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Parts 571 and 585 [Docket No. NHTSA-2008-0104] RIN 2127-AK27 Federal Motor Vehicle Safety Standards; Occupant Protection in Interior Impact; Side Impact Protection; Side Impact Phase-In Reporting Requirements AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation. ACTION: Final rule; response to petitions for reconsideration. SUMMARY: This document responds to petitions for reconsideration of a September 11, 2007 final rule that substantially upgraded Federal Motor Vehicle Safety Standard (FMVSS) No. 214, “Side Impact Protection,” by incorporating a vehicle-to-pole test into the standard, adopting technically-advanced test dummies and enhanced injury criteria, and incorporating the advanced dummies into the standard's moving deformable barrier test. To respond to petitioners' concerns about lead time as quickly as possible, the agency is publishing its response to the petitions in parts. Today's document addresses lead time issues, and other matters that need to be resolved or clarified concerning lead time and the phasing-in of the new requirements. A second document will be published subsequently that addresses the other issues raised by the petitions. DATES: *Effective date:* August 8, 2008. If you wish to petition for reconsideration of this rule, your petition must be received by July 24, 2008. ADDRESSES: If you wish to petition for reconsideration of this rule, you should refer in your petition to the docket number of this document and submit your petition to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., West Building, Washington, DC 20590. The petition will be placed in the docket. Anyone is able to search the electronic form of all documents 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 DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78). FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call Christopher J. Wiacek, NHTSA Office of Crashworthiness Standards, telephone 202-366-4801. For legal issues, you may call Deirdre R. Fujita, NHTSA Office of Chief Counsel, telephone 202-366-2992. You may send mail to these officials at the National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., West Building, Washington, DC 20590. SUPPLEMENTARY INFORMATION: Table of Contents I. Background II. Petitions for Reconsideration a. Alliance b. General Motors
(GM)c. Toyota d. Honda e. Nissan f. Porsche g. Volkswagen
(VW)h. National Truck Equipment Association
(NTEA)i. Bosch III. To Which Issues From the Petitions for Reconsideration Does This Rule Respond? IV. The Issues To Be Addressed in a Later Document V. Response to Petitions a. Extension of Lead Time and Phase-In Percentages b. Test Speed c. Effective Date for Convertible Vehicles d. Effective Date for Vehicles Manufactured in More Than One Stage and for Altered Vehicles e. Clarifications and Corrections 1. Earning Credits for Early Compliance 2. SID-IIs Dummy Arm Positioning 3. Definition of Limited Line Manufacturer 4. Reinstate the Seat Adjustment Procedure for 50th Percentile SID and SID-HIII Dummy in the MDB and FMVSS No. 201 Pole Tests, Respectively VI. Regulatory Analyses and Notices Appendix to Preamble I. Background On September 11, 2007, NHTSA published a final rule that substantially upgraded Federal Motor Vehicle Safety Standard (FMVSS) No. 214, “Side impact protection,” (72 FR 51908, Docket No. NHTSA-29134). 1 Until the final rule, FMVSS No. 214 provided only thoracic and pelvic protection in a test using a moving deformable barrier
(MDB)to simulate an intersection collision with one vehicle being struck in the side by another vehicle. NHTSA upgraded FMVSS No. 214 to require all light vehicles with a gross vehicle weight rating
(GVWR)of 4,536 kg or less (10,000 lb. or less) to protect front seat occupants in a vehicle-to-pole test simulating a vehicle crashing sideways into narrow fixed objects, such as utility poles and trees. By doing so it required vehicle manufacturers to assure head and improved chest protection in side crashes for a wide range of occupant sizes and over a broad range of seating positions. It ensured the installation of new technologies, such as side curtain air bags 2 and torso side air bags, which are capable of improving head and thorax protection to occupants of vehicles that crash into poles and trees or of vehicles that are laterally struck by a higher-riding vehicle. The side air bag systems installed to meet the requirements of the final rule also reduce fatalities and injuries caused by partial ejections through side windows. 1 The final rule fulfilled the mandate of the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU),” which was signed by President George W. Bush in August 2005. Evidently aware of the agency's then-pending notice of proposed rulemaking to upgrade FMVSS No. 214, Section 10302 of the Act directed the agency “to complete a rulemaking proceeding under chapter 301 of title 49, United States Code, to establish a standard designed to enhance passenger motor vehicle occupant protection, in all seating positions, in side impact crashes.” 2 These different side air bag systems are described in a glossary in Appendix A to the September 11, 2007 final rule (72 FR at 51954). Under the September 11, 2007 final rule, vehicles will be tested with two new, scientifically advanced test dummies representing a range of occupants from mid-size males to small females. A test dummy known as the ES-2re represents mid-size adult male occupants. The ES-2re has improved biofidelity and enhanced injury assessment capability compared to all other mid-size adult male dummies used today. A test dummy known as the SID-IIs, the size of a 5th percentile adult female, represents smaller stature occupants. This dummy better represents occupants 5 feet 4 inches (163 cm) or less, which crash data indicates comprise 34 percent of all serious and fatal injuries to near-side occupants in side impacts. 3 3 Samaha R. S., Elliott D. S., “NHTSA Side Impact Research: Motivation for Upgraded Test Procedures,” 18th International Technical Conference on the Enhanced Safety Of Vehicles Conference (ESV), Paper No. 492, 2003. The September 11, 2007 final rule also enhanced FMVSS No. 214's MDB test by specifying the use of the ES-2re dummy in the front seat and the SID-IIs dummy in the rear seating position. Through use of both test dummies, vehicles must provide head, enhanced thoracic and pelvic protection to occupants ranging from mid-size males to small occupants in vehicle-to-vehicle side crashes. After reviewing the comments to the notice of proposed rulemaking
(NPRM)4 preceding the final rule, the results of the agency's FMVSS No. 214 fleet testing program and manufacturers' production plans which showed installation of side air bags in vehicles ahead of the schedule proposed in the NPRM, the September 11, 2007 final rule adopted a two-year lead time prior to the beginning of the phased-in pole test requirements. We provided for a four-year phase-in period, made allowance for use of advanced credits towards meeting the new requirements, and made other adjustments to the schedule for heavier vehicles, to enhance the practicability of meeting the new requirements and provide additional flexibility to manufacturers to meet the requirements. We also adopted a phase-in for the MDB test and aligned the phase-in schedule with the oblique pole test requirements, providing also for the use of advance credits. 4 69 FR 27990; May 17, 2004, Docket No. NHTSA-2004-17694; reopening of comment period, 70 FR 2105; January 12, 2005. II. Petitions for Reconsideration The agency received petitions for reconsideration of the September 11, 2007 final rule from: the Alliance of Automobile Manufacturers (Alliance), 5 General Motors North America (GM), Toyota Motor North America, Inc. (Toyota), American Honda Motor Co., Inc. (Honda), Nissan North America, Inc. (Nissan), Porsche Cars North America, Inc. (Porsche), the National Truck Equipment Association (NTEA), and Robert Bosch LLC (Bosch). The issues raised by the petitioners are summarized below. 5 5 The Alliance is made up of BMW group, Chrysler LLC, Ford Motor Company, General Motors, Mercedes-Benz USA, Mazda, Mitsubishi Motors, Porsche, Toyota, and Volkswagen. a. Alliance The Alliance stated that it supports the goal of improving side impact occupant protection beyond that already accomplished and generally supports the changes to FMVSS No. 214. The Alliance petitioned for agency reconsideration of the following issues: 6 6 Categorization of the issues into these nine areas was made by the Alliance in its petition. 1. *Lead time.* The final rule specifies that manufacturers must begin meeting the upgraded pole and MDB test requirements on a phased-in schedule beginning September 1, 2009. The petitioner asked NHTSA to begin the start of the phase-in on September 1, 2011. 2. *Lower bound on speed range for the pole test.* The final rule specifies that vehicles must meet the requirements of the pole test when tested “at any speed up to and including 32 km/h (20 mph).” The petitioner asked that the pole test speed be specified as 26 to 32 kilometers per hour (km/h) (16 to 20 miles per hour) (mph). 3. *Clarification of phase-in requirements.* The final rule adopted a phased-in compliance schedule for the MDB test, aligned the phase-in schedule with the oblique pole test, and provided for the use of advance credits to meet the MDB requirements. The Alliance asked us to clarify that for each production year, the agency meant to have separate, concurrent phase-in requirements for the MDB and pole tests. 4. *Convertibles.* The final rule applied the pole test requirements to convertible vehicles after the agency had made a determination that it was practicable for the vehicles to meet the requirements. The Alliance petitioned the agency to allow convertible vehicles to follow the lead time requirements applicable to vehicles with a GVWR between 8,500 and 10,000 pounds, i.e., 100 percent of vehicles manufactured on or after September 1 of the fifth production year after the start of the phase-in. 5. *SID-IIs pelvic criterion.* The final rule adopted a pelvic force injury assessment reference value of 5,525 Newtons
(N)for the SID-IIs small female dummy. The petitioner asked that this value be changed to 8,550 N. 6. *Rear seat dummy arm positioning in the MDB test.* The final rule specifies that the SID-IIs dummy in the rear seat of the vehicle has its upper arm in the down position. The petitioner asked that the arm be set in the detent representing a 45 degree angle between the torso and the arm. 7. *Multi-stage and altered vehicles, including vehicles with partitions.* The petitioner recommended that NHTSA “exempt” multi-stage/altered vehicles (including vehicles with partitions behind the front seats) from the oblique pole test requirements. 8. *FMVSS No. 301 dummy application.* The petitioner asked that the wording of FMVSS No. 301, “Fuel system integrity,” be revised to specify that the agency will conduct the side crash test of that standard using whichever dummies the manufacturer has used to certify the vehicle to FMVSS No. 214. 9. *Corrections of test procedures and typographical errors.* The petitioner cited omissions or errors in the regulatory text in need of correction. b. General Motors
(GM)GM, an Alliance member, expressed support for the Alliance's petition and elaborated on its concern about the lack of a lower bound for the speed of the pole test. The petitioner stated that attempts to comply with the “up to” 32 km/h (20 mph) test speed will require vehicles to sacrifice significant immunity from unwanted deployments which will increase the frequency of unnecessary air bag deployments. GM petitioned NHTSA to either bound the test speed at a lower speed of 26 km/h (16 mph) or 23 km/h (14.3 mph), or delay implementation of the “up to” aspect of the requirement until the end of the phase-in to allow for additional sensing technology development. c. Toyota Toyota, an Alliance member, expressed support for the Alliance's petition and elaborated on its concern about lead time and the pole impact test speed of “up to” 32 km/h (20 mph). Toyota requested that the phase-in be effective from September 1, 2011. The petitioner noted that though side air bags have advanced in the years since NHTSA's NPRM, they are only one portion of the system and their deployment depends heavily on the capability of the sensors. The petitioner stated that the typical side air bag sensor is a deceleration sensor, or G sensor. Toyota said that the state of technology for G sensors, while highly advanced, is limited by deployment “gray zones” that denote the measurement tolerance of the sensor. The petitioner noted that real-world evidence of inadvertent deployments exist. In late 2006, the 2005-late 2006 model year Scion tC vehicles were recalled when complaints were received of inadvertent deployment of the side air bag when the door was slammed. It noted there have been other investigations by NHTSA into complaints for other manufacturers' vehicles as well. Toyota recommended that NHTSA require 26 km/h as the lowest limit of impact velocity in the pole test, since bounding the lower impact velocity in that way would make it possible to distinguish the G sensor output necessary for side air bag deployment from the output characteristic of a door slam or minor impact event. d. Honda Honda supported the upgraded FMVSS No. 214 and sought correction and clarification with respect to referenced materials and test procedures, such as making FMVSS No. 214 consistent with cross-references to the test dummy used in the FMVSS No. 301 and 305 crash tests, providing for adjustment of telescopic steering columns, and clarifying adjustment of seat belt shoulder anchorages. e. Nissan Nissan requested additional lead time before the start of the phase-in period. The petitioner stated that the upgraded FMVSS No. 214 requirements will necessitate a redesign of the side impact air bag system, and that the pending rulemaking activity in the area of ejection mitigation raises concerns that a near-term rulemaking on ejection mitigation will put significant additional strain on Nissan's engineering resources and increase costs of compliance for both regulations. 7 The petitioner requested that NHTSA begin phasing-in the requirements on September 1, 2010. Further, the petitioner requested that we delay the effective date for convertible vehicles until a year after completion of the phase-in for other vehicle types, i.e., under the schedule of the September 11, 2007 final rule, until September 1, 2014. 7 NHTSA has announced that it is developing a proposal for an ejection mitigation containment requirement. (“NHTSA Vehicle Safety Rulemaking Priorities and Supporting Research: 2003-2006,” July 2003, Docket 15505.) Additionally, Sec. 10301 of SAFETEA-LU requires the Secretary to issue by October 1, 2009 an ejection mitigation final rule reducing complete and partial ejections of occupants from outboard seating positions (49 U.S.C. 30128(c)(1)). f. Porsche Porsche, an Alliance member, expressed support for the Alliance's petition and elaborated on its concern about lead time, the rear seat dummy arm position, and the pole impact test speed. The petitioner stated that two years of lead time is inadequate because the final rule imposes new crash test requirements, incorporates new test dummies with unresolved issues and new injury criteria, and “compliance with all of the requirements, plus adequate compliance margins, has not been demonstrated by NHTSA.” g. Volkswagen
(VW)VW, an Alliance member, expressed support for the Alliance's petition and elaborated on its belief that convertible models should be excluded from the pole test due to practicability issues. h. National Truck Equipment Association
(NTEA)NTEA requested that NHTSA “exempt multi-stage produced vehicles such as specialized work trucks from the new requirements of this regulation.” Alternatively, NTEA requested that NHTSA “consider amending the phased-in effective dates such that the effective date for multi-stage produced vehicles with a gross vehicle weight rating greater than 8,500 is September 1, 2014 (one year later than the effective date for single stage produced vehicles).” i. Bosch Bosch stated that it fully supported the pole test but asked that NHTSA “modify the test set-up by optionally allowing information being made available from the Electronic Stability Control [ESC] on the vehicle CAN-bus. This would allow advanced restraint electronics to achieve the same performance and occupant protection as in real world accidents.” Bosch stated that in the test set-up specified in the final rule, no ESC signals are communicated on the vehicle CAN-bus, since the vehicle is not sliding laterally with wheels moving on the ground. As a result, the petitioner stated, “advanced restraint triggering algorithms cannot utilize any ESC data, resulting in significantly later TTF [time-to-fire] and thus reduced occupant protection.” Bosch believed that certain sensor information should be used to trigger the side curtain air bags and torso side air bags as soon as possible. Bosch recommended that the agency should “directly feed-in the lateral velocity of 20 mph cos (15°),” or feed in “the ESC-data communicated on the CAN-bus during a real lateral pole crash (with 20 mph under 75°)” provided by the original equipment manufacturer. III. To Which Issues From the Petitions for Reconsideration Does This Rule Respond? To respond to petitioners' concerns about lead time as quickly as possible, the agency is publishing its response to the petitions for reconsideration in parts. Today's document addresses lead time issues, and other matters that need to be resolved or clarified concerning lead time and the phasing-in of the new requirements. A second document will be published subsequently that addresses the other issues raised by the petitions. This final rule: a. Extends the lead time period before manufacturers must begin phasing in vehicles to meet the upgraded FMVSS No. 214 requirements to September 1, 2010 and amends the percentages of manufacturers' vehicles that are required to meet the new requirements from 20/50/75/all to 20/40/60/80/all 8 ; 8 “All” vehicles must meet the requirements without the use of advance credits. b. Specifies the test speed for the pole test as “26 km/h to 32 km/h” (16 mph to 20 mph) until the end of the phase-in, at which time vehicles must meet the requirements of the pole test when tested “at any speed up to and including 32 km/h (20 mph)”; c. Delays the effective date for convertible vehicles until after completion of the phase-in for other vehicle types, i.e., until September 1, 2015; d. Delays the effective date for multi-stage vehicles and alterers until after completion of the phase-in for all other vehicle types, i.e., until September 1, 2016; and, e. Corrects the omissions and minor errors found in the regulatory text relating to the earning of credits for early compliance, the SID-IIs dummy arm positioning, the definition of limited line manufacturer, and the reinstatement of the seat adjustment procedure for the SID dummy. Each of these issues is discussed below in this preamble. IV. The Issues To Be Addressed in a Later Document The issues from the petitions for reconsideration that we will be resolving in a later notice are listed below. We will address requests pertaining to: a. The SID-IIs pelvic criterion; b. Whether vehicles manufactured in more than one stage, particularly with partitions, should be excluded from the pole test; c. The specification as to which test dummy will be used in FMVSS No. 301 and FMVSS No. 305 crash tests; d. Bosch's suggestion to optionally allow sensor information to be fed into the restraint triggering algorithms; and, e. Further correction of typographical and other minor errors in the regulatory text set forth in the September 11, 2007 final rule. V. Response to Petitions a. Extension of Lead Time and Phase-In Percentages The Alliance, GM, Nissan, Porsche and Toyota petitioned the agency to revise the lead time schedule. There was general concern regarding the technical and practical challenges of meeting the new requirements with two years of lead time. NHTSA specified a two-year lead time in the September 11, 2007 final rule based on an analysis of product plans submitted by seven vehicle manufacturers, whose combined production accounted for approximately 90 percent of all light vehicle sales. The data on planned side air bag installations and projected sales through model year
(MY)2011 indicated that 90 percent of all MY 2010 light vehicles will be equipped with side air bags protecting the head, and 72 percent will be equipped with side air bags protecting the thorax. The percentage of side air bags protecting the head was fairly uniform between the manufacturers. Further, according to test results from the agency's FMVSS No. 214 fleet testing program, we estimated that the majority of currently available head side air bags would meet the head protection requirement of this final rule's pole test (about 80 percent of tested vehicles equipped with head air bags passed the pole test). However, with regard to thorax bags, the product plans indicated there were large differences between manufacturers in the percentage of thorax bags being planned, particularly for light trucks. Also, of the vehicles tested equipped with thorax bags, only 56 percent met the chest requirement in the pole test. From our FMVSS No. 214 fleet testing program, we believed that side air bags installed in most passenger cars and small and medium size light trucks (including SUVs and minivans) would not need extensive modifications to meet the new FMVSS No. 214 requirements. Instead, we believed that the rule would only result in current side air bags having to be widened and the inflators made more robust, redesigns that we believed could reasonably be made with a two-year lead time and the phase-in percentages of the final rule. 9 We believed that, while some vehicles would need an added sensor at the location of the SID-IIs 5th percentile female dummy at the full-forward seating position, current sensor technology used today (e.g., to meet the “voluntary commitment” made by auto manufacturers) 10 would generally suffice to enable manufacturers to certify vehicles to the pole test requirements. We believed that extensive vehicle structural modifications were not necessary for passenger cars and small and medium size light trucks to meet the pole test requirements, while it would take longer than two years to add a thorax bag to a vehicle model that has not had one previously (e.g., vehicles with a GVWR greater than 8,500 lb). 9 Under the phase-in schedule adopted in the final rule, the following percentages of each manufacturer's vehicles were required to meet the new requirements: 20 percent of a “light” vehicles (GVWR less or equal to 3,855 kilograms (kg)(8,500 pounds)(lb)) manufactured during the period from September 1, 2009 to August 31, 2010; 50 percent of light vehicles manufactured during the period from September 1, 2010 to August 31, 2011; 75 percent of light vehicles manufactured during the period from September 1, 2011 to August 31, 2012; 100 percent of light vehicles manufactured on or after September 1, 2012, including limited line and small volume vehicles; 100 percent of vehicles with a GVWR greater than 3,855 kg (8,500 lb) manufactured on or after September 1, 2013 and vehicles produced by alterers and multi-stage manufacturers. Vehicle manufacturers were able to earn credits for meeting the requirements ahead of schedule. 10 On December 4, 2003, the Alliance of Automobile Manufacturers, the Association of International Automobile Manufacturers (AIAM), and the Insurance Institute for Highway Safety
(IIHS)announced a new voluntary commitment to enhance occupant protection in front-to-side and front-to-front crashes. The industry initiative consisted of improvements and research made in several phases, focusing, among other things, on accelerating the installation of side impact air bags. See footnote 8 of the September 11, 2007 final rule (72 FR 51910). Moreover, based on our experience, if structural changes were needed, the modification could be done within three to four years since most vehicle lines would likely experience some level of redesign over the next three to four years. Accordingly, the 75 percent phase-in percentage was adopted to elongate the phase-in schedule one year longer than proposed and to provide vehicle manufacturers the flexibility of a four-year phase-in schedule to incorporate side structure and restraint system modifications into their production cycles for those vehicles needing such changes. The additional phase-in year provided more opportunity to incorporate side impact protection design changes during the course of each manufacturer's normal production cycle. After considering the information submitted in the petitions for reconsideration, NHTSA has decided to provide an additional year of lead time to the two-year lead time provided in the final rule. The agency's determination of the lead time of the final rule was based in large part on the information from the manufacturer survey, on the conformance dates of the voluntary commitment, 11 and on the results of the FMVSS No. 214 fleet testing program. We assumed, based on the information, that manufacturers would be able to meet the requirements with current sensor designs and configurations, did not need to redesign vehicle interior spacing, or to undertake a substantial door and seat redesign to accommodate the side air bag systems needed to meet the requirements of the pole test. We recognized that the final rule would necessitate changes to the air bag design, inflator characteristics and door trim and roof rail designs, which typically are associated with a three-year lead time for implementation. However, we assumed that a two-year lead time would be sufficient given our estimate that 90 percent of MY 2010 light vehicles will be equipped with side air bags protecting the head, presumably in conformance with the voluntary agreement. 11 Under Phase 1 of the voluntary commitment, manufacturers agreed that, not later than September 1, 2007, at least 50 percent of each manufacturer's new passenger car and light truck (GVWR up to 3,855 kg) (8,500 lb) production intended for sale in the U.S. will be designed in accordance with either of the following head protection alternatives:
(a)HIC <sup>36</sup> performance of 1000 or less for a SID-H3 crash dummy in the driver's seating position in an FMVSS No. 201 pole impact test, or
(b)HIC <sup>15</sup> performance of 779 or less (with no direct head contact with the barrier) for a SID-IIs crash dummy in the driver's seating position in the Insurance Institute for Highway Safety
(IIHS)MDB perpendicular side impact test. In Phase 2, not later than September 1, 2009, 100 percent of each manufacturer's new passenger car and light truck (GVWR up to 3,855 kg)(8,500 lb) production will be designed in accordance with the IIHS MDB recommended practice of HIC <sup>15</sup> performance of 779 or less for a SID-IIs crash dummy in the driver's seating position. See Docket NHTSA-2003-14623-13. Information submitted by the petitioners indicates that notwithstanding conformance with the voluntary agreement, new changes will have to be incorporated into vehicles to meet the pole test requirements, including new sensors and wider air bags, as well as changes to interior spacing configurations, door, seat and roof designs. Current side air bag systems conforming to the voluntary commitment will need to be made more robust to meet the FMVSS No. 214 pole test, 12 and that for vehicles that do not meet the pole test, redesigning the vehicle interior to accommodate systems that meet the requirements is a significant undertaking that cannot be accomplished within two years. 13 Data from pole tests we conducted in support of NHTSA's New Car Assessment Program
(NCAP)support this assessment. We tested six vehicles that were in conformance with the voluntary agreement and that had been characterized as “good” performers in the IIHS rating program. Of these, four of the six vehicles did not meet the criteria of the pole test when tested with the SID-IIs test dummy: two vehicles need improved head protection, and four vehicles need better pelvic protection. The results of the testing are set forth in Table 1, below. 12 E.g., the Alliance stated in its petition for reconsideration (p. 5): “NHTSA's fleet data has demonstrated that, in order to comply with the requirements using the ES2-re and SID-IIs dummies, a vehicle manufacturer will need to provide countermeasures beyond the installation of a side curtain air bag or a combination side air bag.” 13 Toyota petition for reconsideration. Table 1. SID—IIs Oblique Pole Tests With Vehicles Rated “Good” by IIHS NHTSA test No. * Vehicles Vehicle class Side air bag type HIC36 Lower spine
(Gs)Pelvis force
(N)1000 82 5525 V06287 2007 Honda Pilot SUV Curtain + Torso 3464 68 6649 V06293 2007 Nissan Quest Van Curtain 5694 79 5786 V06285 2007 Ford Escape SUV Curtain + Torso 407 65 6515 V06284 2006 VW Passat Medium PC Curtain + Torso 323 40 3778 V06286 2006 Subaru Impreza Medium PC Combo 184 58 4377 V06283 2007 Toyota Avalon Heavy PC Curtain + Torso 642 62 6672 * Test numbers correspond to those in the NHTSA vehicle crash test database, *http://www-nrd.nhtsa.dot.gov/database/nrd-11/veh_db.html* . To provide manufacturers more time to meet the upgraded FMVSS No. 214 requirements, this document extends the lead time period before manufacturers must begin phasing in vehicles to meet the upgraded FMVSS No. 214 requirements to September 1, 2010. Thus, three years of lead time have been provided to account for redesigns to the vehicle interior necessitated by the demands of the pole test. At the same time, we do not believe that more than a total of three years of lead time should be necessary, since interior redesigns typically can be achieved in three years and since we have also extended the phase-in period. To facilitate the installation of side impact air bags and other safety countermeasures to meet the new requirements in light vehicles as quickly as possible, we are providing only one additional year of lead time, but we are adjusting the phase-in schedule of manufacturers' vehicles that are required to meet the new requirements from 20/50/75/all to 20/40/60/80/all. 14 The adjusted schedule will also continue to couple the phase-in of the MDB with the pole test to enhance the practicability of meeting the new requirements. Moreover, Nissan is correct that the agency's upcoming rulemaking on ejection mitigation containment requirements will build on the foundations laid by the September 11, 2007 final rule. 15 For the convenience of the reader, the revised compliance schedule is shown in Table A of the Appendix to this preamble. 14 Other amended provisions related to the phase-in percentages, including the phase-in requirements for convertible vehicles, vehicles manufactured in more than one stage, and altered vehicles are addressed in sections below in this preamble. 15 NHTSA believes that side curtains installed pursuant to FMVSS No. 214's pole test could be one countermeasure developed to satisfy ejection mitigation requirements. b. Test Speed The agency has decided to retain in the long run that the FMVSS No. 214 pole test requirements must be met at any speed “up to” 32 km/h (20 mph), but has decided to bound the test speed at a lower speed of 26 km/h (16 mph) until the end of the phase-in to allow for additional sensing technology development. The suggestion that the pole test speed should be limited to 26 to 32 km/h (16 to 20 mph) was made by the Alliance and some other commenters to the NPRM. In our final rule, we decided against the suggestion because our crash data showed that crashes with a delta-V of 26 km/h (16 mph) or less resulted in approximately a third of the fatalities and almost half of the MAIS 3-5 non-fatal injured occupants in near-side crashes. 16 Based on the crash data, we believed there was a safety need to require manufacturers to ensure that vehicles provide improved protection in crashes below 26 km/h (16 mph). We wanted to ensure that occupants would be protected if, for example, head contact could occur with a pole or other rigid narrow object. We also believed that the threshold for deployment of side impact air bags would vary based on vehicle design. Establishing a lower test speed range in the oblique pole test could have the causal effect of establishing “design points” for restraint systems that may or may not be optimal to vehicle design or occupant protection. 16 The analysis was based upon front-outboard adult occupants with serious or fatal injuries in 1997-2003 NASS non-rollover, near-side crashes. We continue to believe that prescribing a 26 km/h (16 mph) lower bound for the test speed might force a test condition that would not be ideal for vehicle safety. An occupant's head could strike a pole or rigid narrow object in crashes at less than 26 km/h (16 mph). To address the fatalities and serious injuries occurring in near-side crashes with a delta-V of 26 km/h (16 mph) or less, we again decline the request to permanently bound the pole test speed to 26 to 32 km/h (16 to 20 mph). However, at the time of the final rule, the agency was not aware of any technical challenges to manufacturers to comply with the pole test requirements at the lower range of test speeds. The agency assumed the side impact sensing technology had developed to the state where sensors could discriminate between collision events at lower speeds and non-crash events. The comments to the NPRM did not raise concerns about the ability of current sensing technology to operate satisfactorily at the lower test speeds, and we did not consider in our fleet testing program the potential problems sensors would have in detecting crashes from non-crash events at the lower speeds. The petitions for reconsideration now bring to light the limitations of current sensing technology to distinguish between situations where the side air bag should and should not deploy. GM confirmed our understanding that the lower speed at which side air bags will need to deploy will differ based upon the vehicle size, weight and available crush space between the occupant and the door trim. The petitioners also suggested that side air bag deployment will depend on whether the SID-IIs 5th percentile female test dummy or the ES-2re 50th percentile adult male test dummy is seated in the vehicle. We agree with the petitioners' explanations that side crashes require the sensing system to quickly discern whether to deploy the air bag. GM stated that side crashes not only require a much faster decision-making process compared to frontal impacts, but they typically require deployment at much lower vehicle crash energy levels, which makes them difficult to distinguish from abuse and other non-deployment events. According to petitioners, current sensing strategies (which use deceleration sensors, or “G sensors”) cannot at lower test speeds distinguish the output needing side air bag deployment from the output characteristic of a door slamming or minor impact event. Petitioners also stated that at lower speeds in both the FMVSS No. 214 pole and MDB tests, the G sensor output is similar in magnitude and profile to door slams. Unintended side air bag deployments have posed problems in the past, when side air bags were first introduced on the market in the late 1990s. Table 2 shows investigations conducted by NHTSA's Office of Defects Investigation
(ODI)into unintended side air bag deployments. Separate from Table 2, there have also been a number of other manufacturer voluntary recalls involving unintended side air bag deployments. Table 2.—ODI Investigations Into Unintended Side Air Bag Deployments ODI investigation No. Vehicle model(s) ODI resolution PE04-081 2001-2002 Volkswagen Jetta, Golf and GTI Closed without recall. PE99-061 1998-1999 Cadillac DeVille 02V217 for 215K vehicles. PE99-017 1999 BMW 3-Series 99V063 for 32,500 vehicles. PE00-042 1999-2000 Lincoln Continental Closed without recall. RQ00-013 1997 Mercedes Benz E & SL Class 00V388 for 16,255 vehicles. PE02-011 1999-2001 BMW 3-Series 02V223 for 20,500 vehicles. After considering the issues raised by the petitioners, we are concerned about the potential safety implications associated with side air bags deploying without a side impact crash. NHTSA concludes that if the pole test speed were not bounded in the near term with a test speed of 26 km/h (16 mph), unwarranted deployments of the side air bags could become an issue and could negatively impact public acceptance of side air bags. The agency has thus decided to provide the manufacturers more time to select and develop the proper technology for their vehicles. Accordingly, we are delaying the implementation of the “up to” requirements to the end of the phase-in. To meet the requirement that the pole test injury criteria must be met at any speed “up to” 32 km/h (20 mph), manufacturers will have to use new technologies and/or more sophisticated algorithms that distinguish a real crash from a non-event. GM indicated that it is working on the new sensing technologies, but needs additional time to develop them. We are therefore granting the request of the petitioner to bound the test speed range from 26 km/h to 32 km/h (16 to 20 mph) until the end of the phase-in. By providing manufacturers one year extra lead time and by extending the phase-in another year, the manufacturers will have sufficient time to develop the crash sensing technology to meet the full speed range of the pole test. c. Effective Date for Convertible Vehicles VW requested that convertibles be excluded from the pole test altogether “due to their structural limitations which preclude the installation of roof-mounted curtain air bags for occupant protection.” The Alliance requested that convertible vehicles be allowed to follow the lead time requirements applicable to vehicles with a GVWR greater than 8,500 lb, i.e., all vehicles manufactured on or after September 1 of the fifth production year after the start of the phase-in. The Alliance stated that it did not believe the challenges for convertible vehicles to meet the side pole test requirements are insurmountable. However, the Alliance stated, due to the inherent design constraints of convertibles (i.e., lack of pillars and roof rail to store and deploy curtain air bags) and the need to apply significant structural changes, the lead time needed to ensure compliance with the pole test is significantly longer for convertibles than for non-convertible vehicles. Nissan similarly requested that we delay the effective date for convertible vehicles until the last year of the phase-in, to provide manufacturers time to develop new potential countermeasures for convertibles, such as a seat-mounted thorax and curtain air bag deployed from the door. In our FMVSS No. 214 fleet testing program, we tested two convertible vehicle models, the 2005 model year Saab 9-3 convertible and 2005 model year Volkswagen Beetle. Both vehicle models were tested to the oblique pole test requirements using an ES-2re dummy and in each case, the vehicle met the requirements of the final rule. The tests were conducted with the ES-2re 50th percentile male dummy because the agency believed it would be more difficult for convertibles to meet the pole test with the ES-2re than with the SID-IIs 5th percentile female dummy. The ES-2re is equipped with more instrumentation in the abdomen and thorax, and its larger mass requires more energy management by the restraint system. In their petitions for reconsideration, the Alliance and VW disagreed that the ES-2re dummy test was more challenging. The Alliance cited the FMVSS No. 214 fleet testing results and stated “that the vast majority of these vehicles had larger injury assessment values when tested with the SID-IIs dummy: six out of ten vehicles had larger HIC <sup>36</sup> values, nine out of ten vehicles had larger lower spine acceleration values, and all vehicles [footnote in text: ‘Pelvic Force data for the SID-IIs was not available for one of the ten vehicles tested’] had larger pelvic force values.” As a result, the Alliance stated, “NHTSA has not demonstrated practicability of this rule as applied to convertibles” and requested more lead time for convertible vehicles. After considering the issues raised by the petitioners, we have decided against VW's request to exclude convertibles from the pole test requirements. As explained in the September 11, 2007 final rule, there is safety need to include convertible vehicles in the pole test. In our comparative analysis between convertibles and all other passenger cars in side impact crashes with fixed objects, we found that 11.3 percent of convertible fatalities are from single vehicle side impacts into poles/trees, compared to 6.5 percent of other passenger car fatalities from single vehicle side impacts into poles/trees. The fatality rate 17 from single vehicle side impacts into poles/trees is 9.64 for convertibles, and 6.12 for all other passenger cars. When specifically looking at pole/tree fatality rates, convertibles are 58 percent higher than all other passenger cars. In general, NHTSA's crash data indicated that convertibles have higher rates of fatalities in run-off-the-road type crashes, such as single vehicle side impacts, rollovers, etc. Consequently, requiring enhanced protection against tree and pole side impacts will be paramount in improving the safety of these vehicles. 17 Data source: FARS 1999-2003. Model years 1998-2002 were used. Total registration years (in millions) were 140.8 for all other passenger cars and 4.7 for convertibles. The fatalities per million registration years in single vehicle side crashes were 11.32 for all other passenger cars and 16.71 for convertibles. The fatalities per million registration years in single vehicle side “pole/tree” crashes were 6.12 for all other passenger cars and 9.64 for convertibles. We have also demonstrated the practicability of meeting the pole test for convertible vehicles. The 2005 Saab 9-3 convertible and the 2005 Volkswagen Beetle met the pole test requirements with seat-mounted head/thorax air bag systems. There are other countermeasures that are effective and practicable for installation in convertible body types, such as door-mounted upward-inflating curtains as introduced in the 2006 model year Volvo C70 convertible and which Nissan has indicated they are now developing for its vehicles. We disagree with the Alliance that, as shown in the FMVSS No. 214 fleet testing program, we should not have used the ES-2re dummy to assess the practicability of meeting the pole test. The Alliance compared the performance of vehicles tested with the ES-2re and the SID-IIs to conclude that the SID-IIs resulted in a more rigorous test of the side air bag system. However, almost all of the vehicles cited by the Alliance (nine of ten vehicles) were equipped with roof-mounted window curtain side air bags. In determining which test dummy, the ES-2re or the SID-IIs, would produce a more demanding evaluation of a countermeasure available to convertible vehicles, we sought to assess the practicability of meeting the pole test with a seat-mounted side air bag system since convertibles will not have the roof-mounted countermeasure available to them. For seat-mounted systems, we determined that using the ES-2re, with its larger mass and more complex instrumentation as compared to the SID-IIs, would be more challenging to manufacturers of convertible vehicles in the pole test. Our test data showed that the two convertible vehicles evaluated in the FMVSS No. 214 fleet testing program met the pole test requirements. As for testing with the SID-IIs, practicability was also shown by the results of the 2005 Subaru Forester tested in the FMVSS No. 214 fleet testing program. While not a convertible, the vehicle had a seat-mounted head and thorax combination side air bag that met the injury criteria of the pole test when tested with the SID-IIs. A recent oblique pole test of the 2006 VW Passat showed that the seat-mounted torso side air bag passed the lower spine and pelvic force injury criteria of the pole test with the SID-IIs test dummy (see Table 1, *supra* ), again demonstrating the potential use of effective seat-mounted countermeasures for convertible vehicles in protecting small occupants. Nonetheless, although data indicate that manufacturers are capable of installing countermeasures in convertible vehicles to meet the pole test, we agree that some manufacturers need more time to develop new countermeasures for convertible vehicles and implement changes to the door trim, packaging and air bag systems to meet the pole test requirements. Door-mounted, upwardly deploying curtain air bag technology remains a feasible option for head protection in convertibles. To provide manufacturers of convertibles more time to develop more advanced technologies, this final rule delays the compliance date for convertibles until September 1, 2015. d. Effective Date for Vehicles Manufactured in More Than One Stage and for Altered Vehicles The September 11, 2007 final rule specified a compliance date of September 1, 2013, that applied to vehicles with a GVWR greater than 3,855 kg (8,500 lb), to altered vehicles, and to vehicles manufactured in more than one stage. NTEA requested that NHTSA amend the compliance dates “such that the effective date for multi-stage produced vehicles with a gross vehicle weight rating greater than 8,500 is September 1, 2014 (one year later than the effective date for single stage produced vehicles).” NTEA stated that it would not be possible for manufacturers of vehicles produced in more than one stage (“multi-stage manufacturers”) of vehicles with a GVWR greater than 3,855 kg (8,500 lb) to comply on the same date as the chassis manufacturers of those vehicles, since multi-stage manufacturers “cannot begin planning their compliance strategies until the chassis manufacturers have validated the single stage version of the chassis.” NHTSA has decided to grant the request to provide multi-stage manufacturers additional time to meet the upgraded FMVSS No. 214 requirements. Today's final rule provides vehicles manufactured in more than one stage and altered vehicles until a year after completion of the phase-in for all other vehicle types, i.e., until September 1, 2016, to meet the pole test and the upgraded MDB test. To enhance the ability of manufacturers of these vehicles (which are often small businesses) to manage resources to meet the upgraded FMVSS No. 214 requirements, NHTSA is delaying the effective date for all vehicles manufactured in more than one stage and altered vehicles subject to the upgraded FMVSS No. 214 requirements, and not just vehicles with a GVWR greater than 3,855 kg (8,500 lb). This is consistent with the agency's final rule on “Vehicles Built In Two Or More Stages,” 70 FR 7414, February 14, 2005. e. Clarifications and Corrections This final rule corrects some of the omissions and minor errors found in the regulatory text, as discussed below. 1. Earning Credits for Early Compliance The final rule adopted a phased-in compliance schedule for the MDB test, aligned the phase-in schedule of the MDB test with that of the pole test, and provided for the use of advance credits to meet the MDB and pole test requirements. The Alliance asked us to clarify that for each production year, the agency meant to have separate, concurrent phase-in requirements for the MDB and pole tests. Stated differently, the petitioner asked for clarification as to whether manufacturers may earn a credit toward meeting the upgraded MDB requirement if a vehicle met the upgraded MDB requirement, and not the pole test, ahead of schedule, and vice versa (i.e., manufacturers may earn a credit toward meeting the pole test requirement if a vehicle met the pole test ahead of schedule, and not the upgraded MDB requirement). Our answer is yes. We did not intend that a vehicle may only earn a credit if it met both the upgraded MDB and pole tests. In the September 11, 2007 final rule, we aligned the MDB and pole test phase-in schedules, and provided advance credits, to let manufacturers optimize engineering resources in designing vehicles that met the MDB and pole test requirements simultaneously, thus reducing costs. We sought to enable manufacturers the ability to use credits in a manner that efficiently distributes their resources to meet the requirements. To enhance manufacturers' ability to optimize the allocation of engineering resources and to encourage the early introduction of vehicles meeting the upgraded MDB test or the pole test, the phase-in schedules for the MDB and pole test requirements were made separate and concurrent. Thus, a vehicle that is not subject to the MDB test (e.g., a vehicle with a GVWR greater than 6,000 lb) may earn a credit toward the pole test if the manufacturer installed side air bags meeting the FMVSS No. 214 pole test ahead of schedule. Similarly, with separate compliance schedules, a manufacturer has incentive to modify a vehicle to meet the upgraded MDB requirements in the short term, to earn a credit toward the MDB phase-in, even when the vehicle needs a few years to meet the pole test. The agency has clarified the regulatory text of the standard to make clear that the phase-in schedules are separate and that manufacturers may earn credits for meeting the MDB test separate from earning credits for meeting the pole test, and vice versa. 2. SID-IIs Dummy Arm Positioning In the preamble to the September 11, 2007 final rule, we specified that the SID-IIs arm position for the dummy seated in the driver and front passenger seating positions will be 40 degrees relative to torso (72 FR at 51939). 18 The Alliance petitioned:
(a)To change this specification to one that specifies that the arm position is set in the detent representing a 45 degree angle between the torso and the arm; and
(b)to use this specification for all seating positions in both the pole test and MDB tests. 18 On page 51939 of the September 11, 2007 final rule (72 FR at 51939), second full sentence of the second column, we described how the arm of the SID-IIs in the front seating positions would be raised in the “MDB” test. We meant to describe the SID-IIs arm position in the pole test, since the SID-IIs is not used in the front seating positions in the MDB test. The agency agrees to these suggestions. The reference to the 40 degree angle relative to torso was incorrect, as the shoulder-arm joint allows for discrete arm positions at 0, ± 45, ± 90, ± 135, and 180 degree settings where positive is forward of the spine, and does not have a discrete 40 degree setting. 19 Further, the agency inadvertently did not address in the September 11, 2007 final rule the arm position for the rear seat dummy. We agree with the Alliance that the arm position for the rear seat dummy should be placed at the 45 degree angle detent position, for the reasons explained in the September 11, 2007 final rule (testing with the arm up reduces possible interactions with the armrest—and resulting test variability—and also will not degrade the robustness of the test). Further, we agree with the petitioner that testing with the arm up results in a more meaningful test, as the dummy's thorax is fully exposed to the door trim. 19 Similarly, the September 11, 2007 regulatory text states that the dummy's shoulder-arm joint allows for a discrete arm position at a ±140 degree setting where positive is forward of the spine. The value should be “135” degrees rather than “140” degrees. This document makes the correction. 3. Definition of Limited Line Manufacturer In the regulatory text of FMVSS No. 214 published in the September 11, 2007 final rule, the definition of “limited line manufacturer” states that the term “carline” is defined in 49 CFR 585.4. Delphi pointed out that the reference to 585.4 is incorrect. The correct reference is 49 CFR 583.4. (See definition of “limited line manufacturer” in Subpart H of Part 585, “Side Impact Protection Phase-In Reporting Requirements,” published with the FMVSS No. 214 final rule, September 11, 2007. 72 FR 51972). This document makes the correction to FMVSS No. 214. 4. Reinstate the Seat Adjustment Procedure for 50th Percentile SID and SID-HIII Dummy in the MDB and FMVSS No. 201 Pole Tests, Respectively The final rule adopted the seat adjustment procedure for the 50th percentile male ES-2re dummy proposed in the NPRM and removed from the regulatory text the procedure previously used for the 50th percentile male SID dummy in the MDB test. The seat adjustment procedure referenced for the pole test using the SID-HIII dummy (49 CFR Part 572, Subpart M) in FMVSS No. 201, “Occupant protection in interior impact,” was also changed to be consistent. The Alliance petitioned the agency to reinstate the seat adjustment procedure that had been in FMVSS No. 214 before the September 11, 2007 final rule (“pre-existing seat adjustment procedure”) to use with the SID and SID-HIII dummy because the new seat adjustment procedure can result in a different seat position and dummy location than when using the pre-existing seat adjustment procedure. The petitioners stated that vehicles currently certified to FMVSS Nos. 214 and 201 with the SID and SID-HIII would have to be recertified to account for changes in the seat position and dummy location. The agency agrees with the Alliance that the new seat adjustment procedure can place the SID and SID-HIII dummy at a slightly different location in the vehicle when compared to the pre-existing seat adjustment procedure. It was not our intent for manufacturers to recertify vehicles to a new dummy position with the SID and SID-HIII dummy during the phase-out of the pre-existing FMVSS requirements. Therefore, we agree to reinstitute the pre-existing seat adjustment procedure for use with the SID in the MDB test until the phase-in of the new requirements is complete and for use with the SID-HIII in FMVSS No. 201 pole tests. Thus, when the SID and SID-HIII are used in compliance testing, the seat adjustment procedure that had been in FMVSS No. 214 before the September 11, 2007 will be used. When we use the ES-2re dummy in compliance tests, we will use the new seating procedure adopted in the September 11, 2007 final rule. VI. Rulemaking Analyses and Notices Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866. It is not considered to be significant under E.O. 12866 or the Department's Regulatory Policies and Procedures (44 FR 11034; February 26, 1979). This document amends the lead time and phase-in percentages set forth in the September 11, 2007 final rule and specifies the test speed for the pole test as 26 km/h to 32 km/h (16 mph to 20 mph) until the end of the phase-in. These changes are made to reflect better the capabilities of manufacturers in meeting the requirements of the September 11, 2007 final rule. The document also corrects minor errors and clarifies text of the final rule. The minimal impacts of today's amendment do not warrant preparation of a regulatory evaluation. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980, as amended, requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations and small governmental jurisdictions. I hereby certify that this rule will not have a significant economic impact on a substantial number of small entities. Small organizations and small governmental units will not be significantly affected since the potential cost impacts associated with this action will not affect the price of new motor vehicles. The rule will have a positive effect on motor vehicle manufacturers. This final rule amends the lead time and phase-in percentages set forth in the September 11, 2007 final rule and specifies the test speed for the pole test as 26 km/h to 32 km/h (16 mph to 20 mph) until the end of the phase-in. These changes will positively affect vehicle manufacturers, including small vehicle manufacturers, of which there are four, 20 in that it better reflects the manufacturing capabilities of the manufacturers in meeting the September 11, 2007 final rule than the lead time and phase-in requirements as originally established in that document. The rule also provides more time to final-stage manufacturers and alterers to meet the requirements of the September 11, 2007 final rule. This will have a positive impact on those manufacturers, as they will be given more time and thus more flexibility to manage their engineering designs and resources in planning for compliance with the FMVSS No. 214 upgrade. 20 Avanti, Panoz, Saleen, and Shelby. Executive Order 13132 (Federalism) NHTSA has examined today's final rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rule does not have federalism implications because the rule 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.” Further, no consultation is needed to discuss the preemptive effect of today's rule. NHTSA rules can have preemptive effect in at least two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemptive provision: “When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter.” 49 U.S.C. 30103(b)(1). It is this statutory command that preempts State law, not today's rulemaking, so consultation would be inappropriate. In addition to the express preemption noted above, the Supreme Court has also recognized that State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law, can stand as an obstacle to the accomplishment and execution of a NHTSA safety standard. When such a conflict is discerned, the Supremacy Clause of the Constitution makes their State requirements unenforceable. *See Geier* v. *American Honda Motor Co.,* 529 U.S. 861 (2000). NHTSA has not outlined such potential State requirements in today's rulemaking, however, in part because such conflicts can arise in varied contexts, but it is conceivable that such a conflict may become clear through subsequent experience with today's requirements. NHTSA may opine on such conflicts in the future, if warranted. *See id.* at 883-86. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995
(UMRA)requires Federal agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation, with base year of 1995). This final rule will not result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector in excess of $100 million annually. National Environmental Policy Act NHTSA has analyzed this final rule for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment. Civil Justice Reform With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation:
(1)Clearly specifies the preemptive effect;
(2)clearly specifies the effect on existing Federal law or regulation;
(3)provides a clear legal standard for affected conduct, while promoting simplification and burden reduction;
(4)clearly specifies the retroactive effect, if any;
(5)adequately defines key terms; and
(6)addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement. Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this rule is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court. Paperwork Reduction Act
(PRA)Under the PRA of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. The September 11, 2007 final rule contained a collection of information because of the phase-in reporting requirements. There is no burden to the general public. The September 11, 2007 final rule required manufacturers of passenger cars and of trucks, buses and MPVs with a GVWR of 4,536 kg (10,000 lb) or less, to annually submit a report, and maintain records related to the report, concerning the number of such vehicles that meet the vehicle-to-pole and MDB test requirements of FMVSS No. 214 during the phase-in of those requirements. The purpose of the reporting and recordkeeping requirements is to assist the agency in determining whether a manufacturer of vehicles has complied with the requirements during the phase-in period. Today's final rule extends the lead time period and phase-in of both the pole and MDB test requirements. National Technology Transfer and Advancement Act Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the International Organization for Standardization
(ISO)and the Society of Automotive Engineers. The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards. The September 11, 2007 final rule discussed that NHTSA considered a proposed ISO test procedure found in ISO/SC10/WG1 (October 2001) and ISO draft technical reports related to side air bags performance to guide our decision-making to the extent consistent with the National Traffic and Motor Vehicle Safety Act (49 U.S.C. 30101 *et seq.* ). In today's final rule, we explain our reasons for retaining the requirement that the FMVSS No. 214 pole test injury criteria must be met at any speed “up to” 32 km/h (20 mph). Plain Language Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions: • Have we organized the material to suit the public's needs? • Are the requirements in the rule clearly stated? • Does the rule contain technical language or jargon that isn't clear? • Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand? • Would more (but shorter) sections be better? • Could we improve clarity by adding tables, lists, or diagrams? • What else could we do to make the rule easier to understand? If you have any responses to these questions, please write to us with your views. Appendix to Preamble Table A of Appendix.—Percent of Each Manufacturer's Vehicles That Must Comply With the Pole and MDB Tests During the Production Period Production period Pole test Pole test speed Exclusions from pole test GVWR > 8,500 lb Convertibles MDB test Percent of vehicles that must comply with pole test during production period * Percent of vehicles that must comply with MDB test during production period * September 1, 2010 to August 31, 2011 26 to 32 km/h Excluded Excluded 20 percent 20 percent. September 1, 2011 to August 31, 2012 26 to 32 km/h Excluded Excluded 40 percent 40 percent. September 1, 2012 to August 31, 2013 26 to 32 km/h Excluded Excluded 60 percent 60 percent. September 1, 2013 to August 31, 2014 26 to 32 km/h Excluded Excluded 80 percent 80 percent. On or after September 1, 2014 Up to 32 km/h Excluded Excluded “All” vehicles excluding altered and multistage vehicles; all vehicles produced by limited line and small volume manufacturers “All” vehicles excluding altered and multistage vehicles; all vehicles produced by limited line and small volume manufacturers. On or after September 1, 2015 Up to 32 km/h Included Included All vehicles GVWR > 8.500 lb, and convertibles, excluding altered and multistage vehicles On or after September 1, 2016 Up to 32 km/h All altered and multistage vehicles All altered and multistage vehicles. * Limited line and small volume manufacturers, alterers, and multistage manufacturers are excluded from the 20/40/60/80 phase-in requirements for both the pole and MDB tests. List of Subjects 49 CFR Part 571 Imports, Incorporation by reference, Motor vehicle safety, Reporting and recordkeeping requirements, Tires. 49 CFR Part 585 Motor vehicle safety, Reporting and recordkeeping requirements In consideration of the foregoing, NHTSA amends 49 CFR Chapter V as set forth below. PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS 1. The authority citation for part 571 continues to read as follows: Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166; delegation of authority at 49 CFR 1.50. 2. Section 571.201 is amended by revising S8.18, S8.19, and the first sentence of S8.28, to read as follows: § 571.201 Standard No. 201; Occupant protection in interior impact. S8.18 *Adjustable seats—vehicle to pole test.* Initially, adjustable seats shall be adjusted as specified in S8.3.2.1 of Standard 214 (49 CFR 571.214). S8.19 *Adjustable seat back placement—vehicle to pole test.* Initially, position adjustable seat backs in the manner specified in S8.3.2.2 of Standard 214 (49 CFR 571.214). S8.28 *Positioning procedure for the Part 572 Subpart M test dummy—vehicle to pole test.* The part 572, subpart M, test dummy is initially positioned in the front outboard seating position on the struck side of the vehicle in accordance with the provisions of S12.1 of Standard 214 (49 CFR 571.214), and the vehicle seat is positioned as specified in S8.3.2.1 and S8.3.2.2 of that standard. * * * 3. Section 571.214 is amended by: a. Revising the definition of “Limited line manufacturer” in S3; b. Revising S7.1; c. Revising the heading of S7.2.1, paragraphs S7.2.1(a) and 7.2.1(b), the heading of S7.2.2, paragraph S7.2.2(a), S7.2.4, and the heading of S8.3.1; d. Adding S8.3.2, S8.3.2.1, and S8.3.2.2; e. Revising S9.1, S9.1.1, S9.1.2, S9.1.3, S12.3.2(c), S12.3.3(c), S12.3.4(l), S13 heading, S13.1, S13.1.1, S.13.1.2, S13.1.3, and adding S13.1.4; and f. Revising S13.3, and 13.4. The revised and added text reads as follows: § 571.214 Standard No. 214; Side impact protection. S3 *Definitions.* * * * *Limited line manufacturer* means a manufacturer that sells three or fewer carlines, as that term is defined in 49 CFR 583.4, in the United States during a production year. S7.1 *MDB test with SID.* For vehicles manufactured before September 1, 2010, the following requirements must be met. The following requirements also apply to vehicles manufactured on or after September 1, 2010 that are not part of the percentage of a manufacturer's production meeting the MDB test with advanced test dummies (S7.2 of this section) or are otherwise excluded from the phase-in requirements of S7.2. (Vehicles manufactured before September 1, 2010 may meet S7.2, at the manufacturer's option.) S7.2 *MDB test with advanced test dummies.* S7.2.1 *Vehicles manufactured on or after September 1, 2010 to August 31, 2014.*
(a)Except as provided in S7.2.4 of this section, for vehicles manufactured on or after September 1, 2010 to August 31, 2014, a percentage of each manufacturer's production, as specified in S13.1.1, S13.1.2, S13.1.3, and S13.1.4, shall meet the requirements of S7.2.5 and S7.2.6 when tested with the test dummy specified in those sections. Vehicles manufactured before September 1, 2014 may be certified as meeting the requirements of S7.2.5 and S7.2.6.
(b)For vehicles manufactured on or after September 1, 2010 that are not part of the percentage of a manufacturer's production meeting S7.2.1 of this section, the requirements of S7.1 of this section must be met. S7.2.2 *Vehicles manufactured on or after September 1, 2014.*
(a)Subject to S7.2.4 of this section, each vehicle manufactured on or after September 1, 2014 must meet the requirements of S7.2.5 and S7.2.6, when tested with the test dummy specified in those sections. S7.2.4 *Exceptions from the MDB phase-in; special allowances.* (a)(1) Vehicles that are manufactured by an original vehicle manufacturer that produces or assembles fewer than 5,000 vehicles annually for sale in the United States are not subject to S7.2.1 of this section (but vehicles that will be manufactured on or after September 1, 2014 are subject to S7.2.2);
(2)Vehicles that are manufactured by a limited line manufacturer are not subject to S7.2.1 of this section (but vehicles that will be manufactured on or after September 1, 2014 are subject to S7.2.2).
(b)Vehicles that are altered (within the meaning of 49 CFR 567.7) before September 1, 2016 after having been previously certified in accordance with part 567 of this chapter, and vehicles manufactured in two or more stages before September 1, 2016, are not subject to S7.2.1. Vehicles that are altered on or after September 1, 2016, and vehicles that are manufactured in two or more stages on or after September 1, 2016, must meet the requirements of S7.2.5 and S7.2.6, when tested with the test dummy specified in those sections. Place the Subpart U ES-2re 50th percentile male dummy in the front seat and the Subpart V SID-IIs 5th percentile female test dummy in the rear seat. The test dummies are placed and positioned in the front and rear outboard seating positions on the struck side of the vehicle, as specified in S11 and S12 of this standard (49 CFR 571.214). S8.3.1 *50th Percentile Male ES-2re Dummy (49 CFR Part 572 Subpart U) In Front Seats* S8.3.2 * 50th Percentile Male SID Dummy (49 CFR Part 572 Subpart F) in Front and Rear Seats* S8.3.2.1 *Adjustable seats.* Adjustable seats are placed in the adjustment position midway between the forward most and rearmost positions, and if separately adjustable in a vertical direction, are at the lowest position. If an adjustment position does not exist midway between the forward most and rearmost positions, the closest adjustment position to the rear of the mid-point is used. S8.3.2.2 *Adjustable seat back placement.* Place adjustable seat backs in the manufacturer's nominal design riding position in the manner specified by the manufacturer. If the position is not specified, set the seat back at the first detent rearward of 25° from the vertical. Place each adjustable head restraint in its highest adjustment position. Position adjustable lumbar supports so that they are set in their released, i.e., full back position. S9. *Vehicle-To-Pole Requirements* . S9.1 Except as provided in S5, when tested under the conditions of S10: S9.1.1 Except as provided in S9.1.3 of this section, for vehicles manufactured on or after September 1, 2010 to August 31, 2014, a percentage of each manufacturer's production, as specified in S13.1.1, S13.1.2, S13.1.3, and S13.1.4 shall meet the requirements of S9.2.1, S9.2.2, and S9.2.3 when tested under the conditions of S10 into a fixed, rigid pole of 254 mm (10 inches) in diameter, at any velocity between 26 km/h to 32 km/h (16 to 20 mph) inclusive. Vehicles manufactured before September 1, 2014 that are not subject to the phase-in may be certified as meeting the requirements specified in this section. S9.1.2 Except as provided in S9.1.3 of this section, each vehicle manufactured on or after September 1, 2014, must meet the requirements of S9.2.1, S9.2.2 and S9.2.3, when tested under the conditions specified in S10 into a fixed, rigid pole of 254 mm (10 inches) in diameter, at any speed up to and including 32 km/h (20 mph). All vehicles manufactured on or after September 1, 2014 must meet S9.1.2 without the use of advance credits. S9.1.3 *Exceptions from the phase-in; special allowances* . (a)(1) Vehicles that are manufactured by an original vehicle manufacturer that produces or assembles fewer than 5,000 vehicles annually for sale in the United States are not subject to S9.1.1 of this section (but vehicles manufactured on or after September 1, 2014 by these manufacturers are subject to S9.1.2);
(2)Vehicles that are manufactured by a limited line manufacturer are not subject to S9.1.1 of this section (but vehicles manufactured on or after September 1, 2014 by these manufacturers are subject to S9.1.2).
(b)Vehicles that are altered (within the meaning of 49 CFR 567.7) before September 1, 2016 after having been previously certified in accordance with part 567 of this chapter, and vehicles manufactured in two or more stages before September 1, 2016, are not subject to S9.1.1. Vehicles that are altered on or after September 1, 2016, and vehicles that are manufactured in two or more stages on or after September 1, 2016, must meet the requirements of S9.1.2, when tested under the conditions specified in S10 into a fixed, rigid pole of 254 mm (10 inches) in diameter, at any speed up to and including 32 km/h (20 mph).
(c)Vehicles with a gross vehicle weight rating greater than 3,855 kg (8,500 lb) manufactured before September 1, 2015 are not subject to S9.1.1 or S9.1.2 of this section. These vehicles may be voluntarily certified to meet the pole test requirements prior to September 1, 2015. Vehicles with a gross vehicle weight rating greater than 3,855 kg (8,500 lb) manufactured on or after September 1, 2015 must meet the requirements of S9.2.1, S9.2.2 and S9.2.3, when tested under the conditions specified in S10 into a fixed, rigid pole of 254 mm (10 inches) in diameter, at any speed up to and including 32 km/h (20 mph). (d)(1) Convertibles manufactured before September 1, 2015 are not subject to S9.1.1 or S9.1.2 of this section. These vehicles may be voluntarily certified to meet the pole test requirements prior to September 1, 2015.
(2)Convertibles manufactured on or after September 1, 2015 must meet the requirements of S9.2.1, S9.2.2 and S9.2.3, when tested under the conditions specified in S10 into a fixed, rigid pole of 254 mm (10 inches) in diameter, at any speed up to and including 32 km/h (20 mph). S12.3.2 *5th percentile female driver dummy positioning* .
(c)*Driver arm/hand positioning* . Place the dummy's upper arm such that the angle between the projection of the arm centerline on the midsagittal plane of the dummy and the torso reference line is 45° ± 5°. The torso reference line is defined as the thoracic spine centerline. The shoulder-arm joint allows for discrete arm positions at 0, 45, 90, 135, and 180 degree settings where positive is forward of the spine. S12.3.3 *5th percentile female front passenger dummy positioning* .
(c)*Passenger arm/hand positioning* . Place the dummy's upper arm such that the angle between the projection of the arm centerline on the midsagittal plane of the dummy and the torso reference line is 45° ± 5°. The torso reference line is defined as the thoracic spine centerline. The shoulder-arm joint allows for discrete arm positions at 0, 45, 90, 135, and 180 degree settings where positive is forward of the spine. S12.3.4 *5th percentile female in rear outboard seating positions* .
(l)*Passenger arm/hand positioning* . Place the rear dummy's upper arm such that the angle between the projection of the arm centerline on the midsagittal plane of the dummy and the torso reference line is 45° ± 5°. The torso reference line is defined as the thoracic spine centerline. The shoulder-arm joint allows for discrete arm positions at 0, 45, 90, 135, and 180 degree settings where positive is forward of the spine. S13 *Phase-in of moving deformable barrier and vehicle-to-pole performance requirements* . S13.1 *Vehicles manufactured on or after September 1, 2010 and before September 1, 2014* . At anytime during the production years ending August 31, 2011, August 31, 2012, August 31, 2013, and August 31, 2014, each manufacturer shall, upon request from the Office of Vehicle Safety Compliance, provide information identifying the vehicles (by make, model and vehicle identification number) that have been certified as complying with the moving deformable barrier test with advanced test dummies (S7.2), or the vehicles (by make, model and vehicle identification number) that have been certified as complying with the vehicle-to-pole test requirements (S9.1) of this standard. The manufacturer's designation of a vehicle as a certified vehicle meeting S7.2 or S9.1 is irrevocable. S13.1.1 *Vehicles manufactured on or after September 1, 2010 and before September 1, 2011* .
(a)Subject to S13.4, for vehicles manufactured on or after September 1, 2010 and before September 1, 2011, the number of vehicles complying with S7.2 shall be not less than 20 percent of:
(1)The manufacturer's average annual production of vehicles manufactured in the three previous production years; or
(2)The manufacturer's production in the current production year.
(b)Subject to S13.4, for vehicles manufactured on or after September 1, 2010 and before September 1, 2011, the number of vehicles complying with S9.1 shall be not less than 20 percent of:
(1)The manufacturer's average annual production of vehicles manufactured in the three previous production years; or
(2)The manufacturer's production in the current production year. S13.1.2 *Vehicles manufactured on or after September 1, 2011 and before September 1, 2012* .
(a)Subject to S13.4, for vehicles manufactured on or after September 1, 2011 and before September 1, 2012, the number of vehicles complying with S7.2 shall be not less than 40 percent of:
(1)The manufacturer's average annual production of vehicles manufactured in the three previous production years; or
(2)The manufacturer's production in the current production year.
(b)Subject to S13.4, for vehicles manufactured on or after September 1, 2011 and before September 1, 2012, the number of vehicles complying with S9.1 shall be not less than 40 percent of:
(1)The manufacturer's average annual production of vehicles manufactured in the three previous production years; or
(2)The manufacturer's production in the current production year. S13.1.3 *Vehicles manufactured on or after September 1, 2012 and before September 1, 2013* .
(a)Subject to S13.4, for vehicles manufactured on or after September 1, 2012 and before September 1, 2013, the number of vehicles complying with S7.2 shall be not less than 60 percent of:
(1)The manufacturer's average annual production of vehicles manufactured in the three previous production years; or
(2)The manufacturer's production in the current production year.
(b)Subject to S13.4, for vehicles manufactured on or after September 1, 2012 and before September 1, 2013, the number of vehicles complying with S9.1 shall be not less than 60 percent of:
(1)The manufacturer's average annual production of vehicles manufactured in the three previous production years; or
(2)The manufacturer's production in the current production year. S13.1.4 *Vehicles manufactured on or after September 1, 2013 and before September 1, 2014* .
(a)Subject to S13.4, for vehicles manufactured on or after September 1, 2013 and before September 1, 2014, the number of vehicles complying with S7.2 shall be not less than 80 percent of:
(1)The manufacturer's average annual production of vehicles manufactured in the three previous production years; or
(2)The manufacturer's production in the current production year.
(b)Subject to S13.4, for vehicles manufactured on or after September 1, 2013 and before September 1, 2014, the number of vehicles complying with S9.1 shall be not less than 80 percent of:
(1)The manufacturer's average annual production of vehicles manufactured in the three previous production years; or
(2)The manufacturer's production in the current production year. S13.3(a) For the purposes of calculating average annual production of vehicles for each manufacturer and the number of vehicles manufactured by each manufacturer under S13.1.1(a), S13.1.2(a), S13.1.3(a), and S13.1.4(a), do not count any vehicle that is excluded by Standard No. 214 from the moving deformable barrier test with the ES-2re or SID-IIs test dummies (S7.2).
(b)For the purposes of calculating average annual production of vehicles for each manufacturer and the number of vehicles manufactured by each manufacturer under S13.1.1(b), S13.1.2(b), S13.1.3(b), and S13.1.4(b), do not count any vehicle that is excluded by Standard No. 214 from the vehicle-to-pole test (S9). S13.4 *Calculation of complying vehicles* .
(a)For the purposes of calculating the vehicles complying with S13.1.1, a manufacturer may count a vehicle if it is manufactured on or after October 11, 2007 but before September 1, 2011.
(b)For purposes of complying with S13.1.2, a manufacturer may count a vehicle if it—
(1)Is manufactured on or after October 11, 2007 but before September 1, 2012 and,
(2)Is not counted toward compliance with S13.1.1.
(c)For purposes of complying with S13.1.3, a manufacturer may count a vehicle if it—
(1)Is manufactured on or after October 11, 2007 but before September 1, 2013 and,
(2)Is not counted toward compliance with S13.1.1 or S13.1.2.
(d)For purposes of complying with S13.1.4, a manufacturer may count a vehicle if it—
(1)Is manufactured on or after October 11, 2007 but before September 1, 2014 and,
(2)Is not counted toward compliance with S13.1.1, S13.1.2, or S13.1.3.
(e)For the purposes of calculating average annual production of vehicles for each manufacturer and the number of vehicles manufactured by each manufacturer, each vehicle that is excluded from having to meet the applicable requirement is not counted. PART 585—PHASE-IN REPORTING REQUIREMENTS 1. The authority citation for part 585 continues to read as follows: Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166; delegation of authority at 49 CFR 1.50. Subpart H—Side Impact Protection Phase-in Reporting Requirements 2. Revise § 585.75 to read as follows. § 585.75 Response to inquiries. At any time during the production years ending August 31, 2011, August 31, 2012, August 31, 2013, and August 31, 2014, each manufacturer shall, upon request from the Office of Vehicle Safety Compliance, provide information identifying the vehicles (by make, model and vehicle identification number) that have been certified as complying with the moving deformable barrier test with advanced test dummies (S7.2) or the vehicles (by make, model and vehicle identification number) that have been certified as complying with the vehicle-to-pole test requirements (S9.1) of FMVSS No. 214 (49 CFR 571.214). The manufacturer's designation of a vehicle as a certified vehicle that meets S7.2 or S9.1 is irrevocable. 3. Revise § 585.76 (a), (b), (c), and (d)(2) to read as follows. § 585.76 Reporting requirements.
(a)*Advanced credit phase-in reporting requirements.*
(1)Within 60 days after the end of the production years ending August 31, 2008, through August 31, 2014, each manufacturer choosing to certify vehicles manufactured during any of those production years as complying with the upgraded moving deformable barrier (S7.2 of Standard No. 214)(49 CFR 571.214) or vehicle-to-pole requirements
(S9)of Standard No. 214 shall submit a report to the National Highway Traffic Safety Administration providing the information specified in paragraph
(c)of this section and in § 585.2 of this part.
(b)*Phase-in reporting requirements.* Within 60 days after the end of each of the production years ending August 31, 2011, August 31, 2012, August 31, 2013, and August 31, 2014, each manufacturer shall submit a report to the National Highway Traffic Safety Administration concerning its compliance with the moving deformable barrier requirements of S7 of Standard No. 214 and with the vehicle-to-pole requirements of S9 of that Standard for its vehicles produced in that year. Each report shall provide the information specified in paragraph
(c)of this section and in section 585.2 of this part.
(c)*Advanced credit phase-in report content* —(1) *Production of complying vehicles.* With respect to the reports identified in § 585.76(a), each manufacturer shall report for the production year for which the report is filed the number of vehicles, by make and model year: That are certified as meeting the moving deformable barrier test requirements of S7.2 of Standard No. 214, *Side impact protection* (49 CFR 571.214), and that are certified as meeting the vehicle-to-pole test requirements of S9 of Standard No. 214.
(d)*Phase-in report content—*
(2)*Production of complying vehicles.* Each manufacturer shall report for the production year being reported on, and each preceding production year, to the extent that vehicles produced during the preceding years are treated under Standard No. 214 as having been produced during the production year being reported on, information on the number of vehicles that meet the moving deformable barrier test requirements of S7 of Standard No. 214, *Side Impact Protection* (49 CFR 571.214), and the number of vehicles that meet the vehicle-to-pole test requirements of S9 of that standard. 4. Revise § 585.77 to read as follows. § 585.77 Records Each manufacturer shall maintain records of the Vehicle Identification Number for each vehicle for which information is reported under § 585.76 until December 31, 2018. Issued on: May 15, 2008. Nicole R. Nason, Administrator. [FR Doc. E8-11273 Filed 6-6-08; 8:45 am] BILLING CODE 4910-59-P 73 111 Monday, June 9, 2008 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0623; Directorate Identifier 2008-NM-089-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), Model CL-600-2D15 (Regional Jet Series 705), and CL-600-2D24 (Regional Jet Series 900) 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 that would supersede an existing AD. 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: Bombardier Aerospace has completed a system safety review of the aircraft fuel system against fuel tank safety standards * * *. [A]ssessment showed that supplemental maintenance tasks [for the fuel tank wiring harness installation, and the hydraulic system No. 3 temperature transducer, among other items] are required to prevent potential ignition sources inside the fuel system, which could result in a fuel tank explosion. * * * 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 July 9, 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: Rocco Viselli, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7331; 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-2008-0623; Directorate Identifier 2008-NM-089-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 On February 28, 2008, we issued AD 2008-06-01, Amendment 39-15413 (73 FR 13098, March 12, 2008). That AD required actions intended to address an unsafe condition on the products listed above. Since we issued AD 2008-06-01, we have determined that the initial compliance times for doing the tasks specified in paragraph (f)(1) of that AD must be reduced. AD 2008-06-01 resulted from Canadian Airworthiness Directive CF-2007-28, dated November 22, 2007 (referred to after this as “the MCAI”). The MCAI does not provide an initial compliance time for doing the tasks. In AD 2008-06-01, we required an initial compliance time that started from the effective date of the AD, or the date of issuance of the original Canadian standard airworthiness certificate or the date of issuance of the original Canadian export certificate of airworthiness, whichever occurs later. Although the initial compliance time for doing the tasks is 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. This proposed AD would require reduced thresholds for the initial compliance times. We have also revised the initial compliance times by providing a threshold and grace period for the tasks. You may obtain further information by examining the MCAI in the AD docket. 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 289 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 $23,120, 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 removing Amendment 39-15413 (73 FR 13098, March 12, 2008) and adding the following new AD: **Bombardier, Inc. (Formerly Canadair):** Docket No. FAA-2008-0623; Directorate Identifier 2008-NM-089-AD. Comments Due Date
(a)We must receive comments by July 9, 2008. Affected ADs
(b)The proposed AD supersedes AD 2008-06-01, Amendment 39-15413. Applicability
(c)This AD applies to all Bombardier Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), Model CL-600-2D15 (Regional Jet Series 705), and CL-600-2D24 (Regional Jet Series 900) airplanes, certificated in any category, all serial numbers. 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 (h)(1) 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: Bombardier Aerospace has completed a system safety review of the aircraft fuel system against fuel tank standards introduced in Chapter 525 of the Airworthiness Manual through Notice of Proposed Amendment
(NPA)2002-043. The identified non-compliances were then assessed using Transport Canada Policy Letter No. 525-001, to determine if mandatory corrective action is required. The assessment showed that supplemental maintenance tasks [for the fuel tank wiring harness installation, and the hydraulic system No. 3 temperature transducer, among other items] are required to prevent potential ignition sources inside the fuel system, which could result in a fuel tank explosion. Revision has been made to Canadair Regional Jet Models CL-600-2C10, CL-600-2D15 and CL-600-2D24 Maintenance Requirements Manual, CSP B-053, Part 2, Section 3 “Fuel System Limitations” to introduce the required maintenance tasks. The corrective action is revising the Airworthiness Limitations Section
(ALS)of the Instructions for Continued Airworthiness to incorporate new limitations for fuel tank systems. Restatement of Certain Requirements of AD 2008-06-01
(f)Unless already done, within 60 days after April 16, 2008 (the effective date of AD 2008-06-01), revise the ALS of the Instructions for Continued Airworthiness to incorporate the inspection requirements in Section 3, “Fuel System Limitations,” of Part 2 of Bombardier CL-600-2C10, CL-600-2D15, and CL-600-2D24 Maintenance Requirements Manual CSP B-053, Revision 9, dated July 20, 2007 (“the MRM”). Accomplishing the revision in accordance with a later revision of the MRM is an acceptable method of compliance if the revision is approved by the Manager, New York Aircraft Certification Office (ACO), FAA, or Transport Canada Civil Aviation
(TCCA)(or its delegated agent). New Requirements of This AD: Actions and Compliance
(g)Unless already done, do the following actions.
(1)For task numbers 24-90-00-601, 24-90-00-602, 28-00-00-601, 28-11-23-601, 28-11-23-602, 28-12-13-601, 29-30-00-601, and 29-30-00-602 identified in the MRM, the initial compliance times start at the later of the applicable “Threshold” and “Grace Period” times specified in Table 1 of this AD, and the repetitive limitation tasks must be accomplished thereafter at the applicable interval specified in the MRM, except as provided by paragraphs (g)(2) and (h)(1) of this AD. Table 1.—Initial Inspections Description Compliance time (whichever occurs later) Threshold Grace period Tasks with limiting intervals of 8,000 flight hours Before the accumulation of 8,000 total flight hours Within 2,000 flight hours after the effective date of this AD. Tasks with limiting intervals of 20,000 flight hours Before the accumulation of 20,000 total flight hours Within 6,000 flight hours after the effective date of this AD. Tasks with limiting intervals of 30,000 flight hours Before the accumulation of 30,000 total flight hours Within 6,000 flight hours after the effective date of this AD.
(2)After accomplishing the actions specified in paragraph (g)(1) of this AD, no alternative inspections/limitation tasks or inspection/limitation task intervals may be used unless the inspections/limitation tasks or inspection/limitation task intervals are part of a later revision of the MRM, that is approved by the Manager, New York ACO, FAA; or TCCA (or its delegated agent); or unless the inspection/limitation task or inspection/limitation task interval is approved as an alternative method of compliance
(AMOC)in accordance with the procedures specified in paragraph (h)(1) of this AD. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(h)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, New York Aircraft Certification Office (ACO), 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:* Rocco Viselli, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7331; 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
(i)Refer to Canadian Airworthiness Directive CF-2007-28, dated November 22, 2007; and Section 3, “Fuel System Limitations,” of Part 2 of Bombardier CL-600-2C10, CL-600-2D15, and CL-600-2D24 Maintenance Requirements Manual CSP B-053, Revision 9, dated July 20, 2007; for related information. Issued in Renton, Washington, on May 29, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-12819 Filed 6-6-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0622; Directorate Identifier 2008-NM-064-AD] RIN 2120-AA64 Airworthiness Directives; BAE Systems (Operations) Limited (Jetstream) Model 4101 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: Resulting from the assessment of fuel tank wiring installations required by SFAR 88 (Special Federal Aviation Regulation 88) and equivalent JAA/EASA (Joint Aviation Authorities/European Aviation Safety Agency) policy, BAE Systems identified * * * features in the Jetstream 4100 where the need for design changes was apparent. * * * Internal fuel tank wiring chafing damage, if not corrected, could lead to ignition of fuel vapours and subsequent fuel tank explosion. 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 July 9, 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: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1175; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: 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-2008-0622; Directorate Identifier 2008-NM-064-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2008-0041, dated February 27, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Resulting from the assessment of fuel tank wiring installations required by SFAR 88 (Special Federal Aviation Regulation 88) and equivalent JAA/EASA (Joint Aviation Authorities) policy, BAE Systems identified two features in the Jetstream 4100 where the need for design changes was apparent. One of these is addressed by Service Bulletin
(SB)J41-28-014 which introduces changes to the wiring harness installations to the left
(LH)and right
(RH)fuel boost pumps, identified by modification number JM41672. In addition, to detect excessive cable lengths and evidence of chafing damage, SB J41-28-014 provides instructions to inspect and correct, as necessary, the internal fuel tank wiring routed to the LH and RH high level sensors. Internal fuel tank wiring chafing damage, if not corrected, could lead to ignition of fuel vapours and subsequent fuel tank explosion. For the reason stated above, this EASA Airworthiness Directive
(AD)requires the replacement of the (LH and RH) fuel boost pump metallic conduit assemblies with loom assemblies and the inspection of internal fuel tank high level sensor wiring, including corrective actions, as necessary. Corrective actions include replacing any damaged internal fuel tank high level sensor wiring and removing excess wiring. You may obtain further information by examining the MCAI in the AD docket. The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate
(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. The Joint Aviation Authorities
(JAA)has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference
(ECAC)representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Relevant Service Information BAE Systems (Operations) Limited has issued Service Bulletin J41-28-014, Revision 1, dated December 21, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect 7 products of U.S. registry. We also estimate that it would take 47 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 $7,000 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 $75,320, or $10,760 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **BAE Systems (Operations) Limited (Formerly British Aerospace Regional Aircraft):** Docket No. FAA-2008-0622; Directorate Identifier 2008-NM-064-AD. Comments Due Date
(a)We must receive comments by July 9, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to all BAE Systems (Operations) Limited Model Jetstream 4101 airplanes, certificated in any category, all serial numbers. Subject
(d)Air Transport Association
(ATA)of America Code 28: Fuel. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Resulting from the assessment of fuel tank wiring installations required by SFAR 88 (Special Federal Aviation Regulation 88) and equivalent JAA/EASA (Joint Aviation Authorities/European Aviation Safety Agency) policy, BAE Systems identified two features in the Jetstream 4100 where the need for design changes was apparent. One of these is addressed by Service Bulletin
(SB)J41-28-014 which introduces changes to the wiring harness installations to the left
(LH)and right
(RH)fuel boost pumps, identified by modification number JM41672. In addition, to detect excessive cable lengths and evidence of chafing damage, SB J41-28-014 provides instructions to inspect and correct, as necessary, the internal fuel tank wiring routed to the LH and RH high level sensors. Internal fuel tank wiring chafing damage, if not corrected, could lead to ignition of fuel vapours and subsequent fuel tank explosion. For the reason stated above, this EASA Airworthiness Directive
(AD)requires the replacement of the (LH and RH) fuel boost pump metallic conduit assemblies with loom assemblies and the inspection of internal fuel tank high level sensor wiring, including corrective actions, as necessary. Corrective actions include replacing any damaged internal fuel tank high level sensor wiring and removing excess wiring. Actions and Compliance
(f)Within 24 months after the effective date of this AD, unless already done, do the following actions.
(1)Modify the LH and RH wing fuel boost pump wiring in accordance with paragraphs 2.B. and 2.C. of the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin J41-28-014, Revision 1, dated December 21, 2007.
(2)Inspect the LH and RH wing fuel high level sensor wiring in accordance with paragraph 2.D. of the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin J41-28-014, Revision 1, dated December 21, 2007.
(3)When excess wiring and/or damaged wiring is found during the inspection required by paragraph (f)(2) of this AD, before next flight, accomplish the corrective actions as specified in paragraph 2.D. of the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin J41-28-014, Revision 1, dated December 21, 2007. FAA AD Differences Note: 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, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1175; fax
(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI EASA Airworthiness Directive 2008-0041, dated February 27, 2008, and BAE Systems (Operations) Limited Service Bulletin J41-28-014, Revision 1, dated December 21, 2007, for related information. Issued in Renton, Washington, on May 30, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-12828 Filed 6-6-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0621; Directorate Identifier 2008-NM-015-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 737-600, -700, -800, and -900 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 737-600, -700, -800, and -900 series airplanes. This proposed AD would require installation of hot short protector
(HSP)support brackets and equipment for the fuel quantity indicating system
(FQIS)fuel densitometer and other specified actions as applicable. This proposed AD would also require a revision to the Airworthiness Limitations
(AWLs)section of the Instructions for Continued Airworthiness to incorporate AWL No. 28-AWL-07. This proposed AD results from fuel system reviews conducted by the manufacturer. We are proposing this AD to prevent the center tank fuel densitometer from overheating and becoming a potential ignition source inside the center fuel tank, which, in combination with flammable fuel vapors, could result in a center fuel tank explosion and consequent loss of the airplane. DATES: We must receive comments on this proposed AD by July 24, 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: Georgios Roussos, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6482; 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-2008-0621; Directorate Identifier 2008-NM-015-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate
(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Boeing has found that no separation was provided for the fuel quantity indication system
(FQIS)wires. A potential hot short of the FQIS lead wire could cause the center fuel tank densitometer to overheat. In situations where the fuel level in the center tank is low, the overheated densitometer could ignite flammable fuel vapors inside the center fuel tank. This condition, if not corrected, could result in a center fuel tank explosion and consequent loss of the airplane. Other Related Rulemaking On April 29, 2008, we issued AD 2008-10-10, amendment 39-15516 (73 FR 25986, May 8, 2008), applicable to certain Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes. That AD requires revising the Airworthiness Limitations
(AWLs)section of the Instructions for Continued Airworthiness
(ICA)by incorporating new limitations for fuel tank systems to satisfy SFAR 88 requirements. That AD also requires the initial inspection of a certain repetitive AWL inspection to phase in that inspection, and repair if necessary. That AD resulted from a design review of the fuel tank systems. We issued that AD to prevent the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane. Incorporating AWL No. 28-AWL-07 into the AWLs section of the ICA in accordance with paragraph (g)(3) of AD 2008-10-10 would terminate the action specified in paragraph
(g)of this proposed AD. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 737-28A1221, Revision 1, dated November 9, 2007. The service bulletin describes procedures for installing hot short protector
(HSP)support brackets and equipment for the FQIS fuel densitometer and doing other specified actions as applicable. The other specified actions include installing wire bundle and ground stud support brackets, replacing certain wire bundle support brackets with new brackets, installing new support clamps and wire bundles, and rerouting certain wire bundles. We have also reviewed Revision March 2007 R2 of Section 9 of the Boeing 737-600/700/800/900 Maintenance Planning Data
(MPD)Document, D626A001-CMR (hereafter referred to as “the MPD”). Subsection F, “AIRWORTHINESS LIMITATIONS—FUEL SYSTEM AWLs,” of the MPD describes AWLs for fuel tank systems. Subsection F of the MPD includes fuel system AWL No. 28-AWL-07, which is a critical design configuration control limitation (CDCCL) to maintain the design features of the center fuel tank HSP during its replacement. 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(se) same type design(s). This proposed AD would require the following actions: • Installing HSP equipment for the FQIS fuel densitometer and doing other specified actions as applicable. • Revising the AWLs section of the ICA to incorporate AWL No. 28-AWL-07, which would require maintaining the design features of the center fuel tank HSP during its replacement. This proposed AD would also allow accomplishing the revision to the AWLs section of the ICA in accordance with later revisions of the MPD as an acceptable method of compliance if they are approved by the Manager, Seattle Aircraft Certification Office, FAA. Costs of Compliance We estimate that this proposed AD would affect 13 airplanes of U.S. registry. The following table provides the estimated costs, at an average labor rate of $80 per work hour, for U.S. operators to comply with this proposed AD. Estimated Costs Action Work hours Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Installation of HSP support brackets and equipment Up to 16 Up to $14,698 Up to $15,978 13 Up to $207,714. AWLs revision 1 None $80 13 $1,040. 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-2008-0621; Directorate Identifier 2008-NM-015-AD. Comments Due Date
(a)We must receive comments by July 24, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Boeing Model 737-600, -700, -800, and -900 series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 737-28A1221, Revision 1, dated November 9, 2007. 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
(AMOC)according to paragraph
(k)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. Unsafe Condition
(d)This AD results from fuel system reviews conducted by the manufacturer. We are issuing this AD to prevent the center tank fuel densitometer from overheating and becoming a potential ignition source inside the center fuel tank, which, in combination with flammable fuel vapors, could result in a center fuel tank explosion and consequent loss of the airplane. Compliance
(e)Comply with this AD within the compliance times specified, unless already done. Installation of the Hot Short Protector
(f)Within 60 months after the effective date of this AD, install the HSP support brackets and equipment for the fuel quantity indicating system
(FQIS)fuel densitometer and do all the other specified actions as applicable, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 737-28A1221, Revision 1, dated November 9, 2007. Airworthiness Limitations
(AWLs)Revision for AWL No. 28-AWL-07
(g)Concurrently with accomplishing the actions required by paragraph
(f)of this AD, revise the AWLs section of the Instructions for Continued Airworthiness
(ICA)by incorporating AWL No. 28-AWL-07 of Subsection F of the Boeing 737-600/700/800/900 Maintenance Planning Data
(MPD)Document, D626A001-CMR, Section 9, Revision March 2007 R2 (hereafter referred to as “the MPD”). No Alternative Critical Design Configuration Control Limitations (CDCCLs)
(h)After accomplishing the action specified in paragraph
(g)of this AD, no alternative CDCCLs may be used unless the CDCCLs are part of a later revision of the MPD that is approved by the Manager, Seattle ACO; or unless the CDCCLs are approved as an AMOC in accordance with the procedures specified in paragraph
(k)of this AD. Credit for Actions Done According to Previous Issue of Service Bulletin
(i)Actions done before the effective date of this AD in accordance with Boeing Alert Service Bulletin 737-28A1221, dated January 14, 2007, are acceptable for compliance with the requirements of paragraph
(f)of this AD. Terminating Action for AWLs Revision
(j)Incorporating AWL No. 28-AWL-07 into the AWLs section of the ICA in accordance with paragraph (g)(3) of AD 2008-10-10, amendment 39-15516, terminates the action required by paragraph
(g)of this AD. Alternative Methods of Compliance (AMOCs) (k)(1) The Manager, Seattle ACO, FAA, ATTN: Georgios Roussos, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6482; 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. Issued in Renton, Washington, on May 30, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-12829 Filed 6-6-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0625; Directorate Identifier 2008-NM-069-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) Airplanes; CL-600-2D15 (Regional Jet Series 705) Airplanes; and CL-600-2D24 (Regional Jet Series 900) 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: During a pre-delivery flight of a CL-600-2C10 aircraft, the AC essential bus did not come on-line following deployment of the Air Driven Generator (ADG). Following investigation, it was determined that a specific batch of contactors in the ADG Power Center (ADGPC) is susceptible to failure due to low contact pressure. * * * The unsafe condition is malfunction of the emergency AC generation and control system that supplies emergency AC power to essential flight instruments, including the flap and slat system, pitch trim system, and hydraulic pump 3B. Loss of essential flight instruments could prevent continued safe flight and landing of the airplane. 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 July 9, 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: Wing Chan, 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)228-7311; 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-2008-0625; Directorate Identifier 2008-NM-069-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-2008-14, dated February 19, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: During a pre-delivery flight of a CL-600-2C10 aircraft, the AC essential bus did not come on-line following deployment of the Air Driven Generator (ADG). Following investigation, it was determined that a specific batch of contactors in the ADG Power Center (ADGPC) is susceptible to failure due to low contact pressure. This directive mandates inspection of the ADGPC and replacement of any contactors in the suspect batch. It also prohibits future installation of ADGPCs and contactors that have not been inspected per this directive. The unsafe condition is malfunction of the emergency AC generation and control system that supplies emergency AC power to essential flight instruments, including the flap and slat system, pitch trim system, and hydraulic pump 3B. Loss of essential flight instruments could prevent continued safe flight and landing of the airplane. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Bombardier has issued Service Bulletin 670BA-24-021, Revision A, dated December 11, 2006. 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 306 products of U.S. registry. We also estimate that it would take about 9 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 $220,320, or $720 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-2008-0625; Directorate Identifier 2008-NM-069-AD. Comments Due Date
(a)We must receive comments by July 9, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Bombardier Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, serial numbers 10004 and subsequent; Model CL-600-2D15 (Regional Jet Series 705) airplanes and Model CL-600-2D24 (Regional Jet Series 900) airplanes, serial numbers 15002 and subsequent; certificated in any category. Subject
(d)Air Transport Association
(ATA)of America Code 24: Electrical power. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: During a pre-delivery flight of a CL-600-2C10 aircraft, the AC essential bus did not come on-line following deployment of the Air Driven Generator (ADG). Following investigation, it was determined that a specific batch of contactors in the ADG Power Center (ADGPC) is susceptible to failure due to low contact pressure. This directive mandates inspection of the ADGPC and replacement of any contactors in the suspect batch. It also prohibits future installation of ADGPCs and contactors that have not been inspected per this directive. The unsafe condition is malfunction of the emergency AC generation and control system that supplies emergency AC power to essential flight instruments, including the flap and slat system, pitch trim system, and hydraulic pump 3B. Loss of essential flight instruments could prevent continued safe flight and landing of the airplane. Actions and Compliance
(f)Unless already done, do the following actions.
(1)For Model CL-600-2C10 airplanes having serial numbers 10004 through 10265, and Model CL-600-2D15 and CL-600-2D24 airplanes having serial numbers 15002 through 15162: Within 5,000 flight hours or 24 months after the effective date of this AD, whichever occurs first, inspect for the serial number of the installed ADGPC and, as applicable, for the serial numbers of installed contactors K117, K147 and K153, in accordance with Part A of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-24-021, Revision A, dated December 11, 2006. If the serial number of the ADGPC is in the range 134 through 250, and any installed contactor has a serial number in the range 411 through 777, before further flight, replace the affected contactor in accordance with Part B of the service bulletin.
(2)Previous inspection of the ADGPC, and replacement of contactors, before the effective date of this AD, in accordance with Bombardier Service Bulletin 670BA-24-021, dated May 30, 2005, meets the requirements of paragraphs (f)(1) of this AD if the ADGPC has not been replaced since accomplishment of the service bulletin.
(3)A review of the aircraft maintenance records to determine the ADGPC and contactor serial numbers also meets the inspection requirements of paragraph (f)(1) of this AD. Parts Installation
(g)As of the effective date of this AD: No replacement/spare ADGPC having part number 781GA01Y00, with a serial number in the range 134 through 250, is permitted to be installed on any aircraft, unless the ADGPC has been modified according to paragraph (f)(1) of this AD.
(h)As of the effective date of this AD: No replacement/spare ADGPC contactor having part number 995CA01Y00, with a serial number in the range 411 through 777, is permitted to be installed on any aircraft, unless the ADGPC contactor is identified with two labels, as specified in Zodiac ECE Service Bulletin 995CA01Y-24-001, dated May 3, 2005. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(i)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, New York Aircraft Certification Office (ACO), 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: Wing Chan, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7311; 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
(j)Refer to MCAI Canadian Airworthiness Directive CF-2008-14, dated February 19, 2008; and Bombardier Service Bulletin 670BA-24-021, Revision A, dated December 11, 2006; for related information. Issued in Renton, Washington, on May 30, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-12833 Filed 6-6-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0627; Directorate Identifier 2008-CE-033-AD] RIN 2120-AA64 Airworthiness Directives; EADS SOCATA Model TBM 700 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above that would supersede an existing AD. 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: A rupture of the alternator and vapour cycle cooling system pulley drive assembly has reportedly been found. Such a failure could lead to the loss of the alternator and vapour cycle cooling systems and could also cause mechanical damage inside the powerplant compartment. 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 July 9, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http: //www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Albert Mercado, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; *telephone:*
(816)329-4119; *fax:*
(816)329-4090. 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-2008-0627; Directorate Identifier 2008-CE-033-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://regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No.: 2008-0067-E, dated April 3, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: A rupture of the alternator and vapour cycle cooling system pulley drive assembly has reportedly been found. Such a failure could lead to the loss of the alternator and vapour cycle cooling systems and could also cause mechanical damage inside the powerplant compartment. To address this condition, AD 2008-0063-E had been published to require a check of the pulley drive assembly for leakage and, as an interim action, removal of the compressor drive belt from the assembly, and adoption of a new operational procedure to keep the air-conditioning system deactivated. This AD retains the requirements of AD 2008-0063-E which is superseded, introduces a mandatory terminating action which consists in replacing the original pulley drive assembly by a new one of an improved design—corresponding to the EADS SOCATA modification MOD 70-0231-21—that permits reinstallation of the compressor drive belt. The MCAI requires you to deactivate the air conditioning system, inspect the pulley drive assembly for leaks, and replace the pulley drive assembly (P/N) T700G215504900000 with the new P/N T700G215505710000 either immediately if leaks are found or at a certain time if no leaks are found. On April 30, 2008, we issued AD 2008-10-13, Amendment 39-15520 (73 FR 26318; May 9, 2008). AD 2008-10-13 was issued as an interim action in order to address the need to deactivate the air conditioning system, inspect the pulley drive assembly for leaks, and replace the pulley drive assembly if leaks are found. The Administrative Procedure Act does not permit the FAA to “bootstrap” a long-term requirement into an urgent safety of flight action where the rule becomes effective at the same time the public has the opportunity to comment. The short-term action and the long-term action were analyzed separately for justification to bypass prior public notice. We are issuing this proposed AD to address the mandatory long-term action of replacing the pulley drive assembly. Relevant Service Information EADS SOCATA has issued Mandatory Service Bulletin SB 70-156, Amendment 1, dated March 2008. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the 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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed 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 will affect 21 products of U.S. registry. We also estimate that it would take about 10 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 $2,912 per product. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $77,952, or $3,712 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 removing Amendment 39-15520 (73 FR 26318; May 9, 2008), and adding the following new AD: **EADS SOCATA:** Docket No. FAA-2008-0627; Directorate Identifier 2008-CE-033-AD. Comments Due Date
(a)We must receive comments by July 9, 2008. Affected ADs
(b)This AD supersedes AD 2008-10-13, Amendment 39-15520. Applicability
(c)This AD applies to Models TBM 700 airplanes, serial numbers 434 through 455, certificated in any category. Subject
(d)Air Transport Association of America
(ATA)Code 24: Electric Power. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: A rupture of the alternator and vapour cycle cooling system pulley drive assembly has reportedly been found. Such a failure could lead to the loss of the alternator and vapour cycle cooling systems and could also cause mechanical damage inside the powerplant compartment. To address this condition, AD 2008-0063-E had been published to require a check of the pulley drive assembly for leakage and, as an interim action, removal of the compressor drive belt from the assembly, and adoption of a new operational procedure to keep the air-conditioning system deactivated. This AD retains the requirements of AD 2008-0063-E which is superseded, introduces a mandatory terminating action which consists in replacing the original pulley drive assembly by a new one of an improved design—corresponding to the EADS SOCATA modification MOD 70-0231-21—that permits reinstallation of the compressor drive belt. Actions and Compliance
(f)Unless already done, do the following before further flight after May 9, 2008 (the compliance date retained from AD 2008-10-13):
(1)Position to “OFF” the air-conditioning “AIR COND” switch.
(2)Inspect for oil leakage in the pulley drive assembly by following EADS SOCATA Service Bulletin
(SB)No. 70-156 Amendment 1, dated March 2008.
(i)If any leak is found, before further flight after the inspection, replace the pulley drive assembly part number (P/N) T700G215504900000 with P/N T700G215505710000 following EADS SOCATA Service Bulletin
(SB)No. 70-156 Amendment 1, dated March 2008.
(ii)If no leak is found, before further flight, remove the compressor drive belt from the pulley drive assembly following either EADS SOCATA Service Bulletin
(SB)No. 70-156, original issue; or EADS SOCATA Service Bulletin
(SB)No. 70-156, Amendment 1; both dated March 2008.
(3)The air-conditioning “AIR COND” switch must be in the “OFF” position and the compressor drive belt must remain removed until the pulley drive assembly part number (P/N) T700G215504900000 is replaced with P/N T700G215505710000 following EADS SOCATA Service Bulletin
(SB)No. 70-156 Amendment 1, dated March 2008. This replacement must be done before further flight if any leak is found and may be done at any time as terminating action to this AD.
(g)Within the next 12 months after the effective date of this AD, unless already done, replace the pulley drive assembly P/N T700G215504900000 with P/N T700G215505710000 and reinstall the compressor drive belt, following EADS SOCATA Service Bulletin
(SB)No. 70-156 Amendment 1, dated March 2008. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(h)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs)* : The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to *ATTN:* Albert Mercado, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; *telephone:*
(816)329-4119; *fax:*
(816)329-4090. 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 (44 U.S.C. 3501 *et seq* .), the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Special Flight Permit
(i)Under 14 CFR 39.23, we are limiting the special flight permits for the check of equipment of this AD under the following condition: The air-conditioning “AIR-COND” switch is set to the “OFF” position. Related Information
(j)Refer to MCAI European Aviation Safety Agency
(EASA)Emergency AD No.: 2008-0067-E, dated April 3, 2008, and EADS SOCATA Service Bulletin
(SB)No. 70-156 Amendment 1, dated March 2008, for related information. Issued in Kansas City, Missouri, on June 2, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-12818 Filed 6-6-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0626; Directorate Identifier 2008-CE-035-AD] RIN 2120-AA64 Airworthiness Directives; Pilatus Aircraft Ltd. Model PC-6 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (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: This Airworthiness Directive
(AD)is prompted due to the discovery of loose self-locking stop nuts Part Number (P/N) 938.07.65.105 in the tail landing gear fastener assemblies of some PC-6 aircraft. It is believed that this occurrence could also exist in other fastener assemblies using nuts P/N 938.07.65.105 at various identified locations in the aircraft. If left uncorrected, the identified assemblies may become loose and not function as designed and could lead to hazardous situations. 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 July 9, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; *telephone:*
(816)329-4059; *fax:*
(816)329-4090. 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-2008-0626; Directorate Identifier 2008-CE-035-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No.: 2008-0083, dated May 5, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: This Airworthiness Directive
(AD)is prompted due to the discovery of loose self-locking stop nuts Part Number (P/N) 938.07.65.105 in the tail landing gear fastener assemblies of some PC-6 aircraft. It is believed that this occurrence could also exist in other fastener assemblies using nuts P/N 938.07.65.105 at various identified locations in the aircraft. If left uncorrected, the identified assemblies may become loose and not function as designed and could lead to hazardous situations. In order to prevent those conditions, the present AD requires you replace self-locking stop nuts P/N 938.07.65.105 from the Tail Landing Gear Assembly, the Parachute Cable Assembly, the Water Tank Assembly, the Cable Tensioner Assembly, the Fuel Filter Assembly, the Hydraulic Pump Assembly and the Engine Mounts Assembly in accordance with Pilatus PC-6 Service Bulletin No. 53-002 Revision 2. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Pilatus Aircraft Ltd. has issued Pilatus PC-6 Service Bulletin Number 53-002, Revision No. 2, dated September 24, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the 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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed 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 We estimate that this proposed AD will affect 50 products of U.S. registry. We also estimate that it would take about 7 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 $310 per product. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $43,500, or $870 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: **Pilatus Aircraft Ltd.:** Docket No. FAA-2008-0626; Directorate Identifier 2008-CE-035-AD. Comments Due Date
(a)We must receive comments by July 9, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to PC-6, PC-6-H1, PC-6-H2, PC-6/350, PC-6/350-H1, PC-6/350-H2, PC-6/A, PC-6/A-H1, PC-6/A-H2, PC-6/B-H2, PC-6/B1-H2, PC-6/B2-H2, PC-6/B2-H4, PC-6/C-H2, and PC-6/C1-H2 airplanes, manufacturer serial numbers
(MSN)MSN 101 through MSN 949 and MSN 2001 through MSN 2092, certificated in any category. Note 1: These airplanes may also be identified as Fairchild Republic Company PC-6 airplanes, Fairchild Heli Porter PC-6 airplanes, or Fairchild-Hiller Corporation PC-6 airplanes. Subject
(d)Air Transport Association of America
(ATA)Code 53: Fuselage. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: This Airworthiness Directive
(AD)is prompted due to the discovery of loose self-locking stop nuts Part Number (P/N) 938.07.65.105 in the tail landing gear fastener assemblies of some PC-6 aircraft. It is believed that this occurrence could also exist in other fastener assemblies using nuts P/N 938.07.65.105 at various identified locations in the aircraft. If left uncorrected, the identified assemblies may become loose and not function as designed and could lead to hazardous situations. In order to prevent those conditions, the present AD requires you replace self-locking stop nuts P/N 938.07.65.105 from the Tail Landing Gear Assembly, the Parachute Cable Assembly, the Water Tank Assembly, the Cable Tensioner Assembly, the Fuel Filter Assembly, the Hydraulic Pump Assembly and the Engine Mounts Assembly in accordance with Pilatus PC-6 Service Bulletin No. 53-002 Revision 2. Actions and Compliance
(f)Unless already done, do the following actions:
(1)Within the next 12 months after the effective date of this AD, inspect and modify the fastener assemblies as instructed in paragraph 3 of Pilatus Aircraft Ltd. Pilatus PC-6 Service Bulletin Number 53-002, Revision No. 2, dated September 24, 2007.
(2)After the effective date of this AD, no person shall install on any PC-6 series aircraft, water tank assemblies and hydraulic pump assemblies, unless they have been previously modified following paragraph 4 of Pilatus Aircraft Ltd. Pilatus PC-6 Service Bulletin Number 53-002, Revision No. 2, dated September 24, 2007. FAA AD Differences Note 2: 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, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to *ATTN:* Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; *telephone:*
(816)329-4059; *fax:*
(816)329-4090. 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 (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI European Aviation Safety Agency EASA AD No.: 2008-0083, dated May 5, 2008; and Pilatus Aircraft Ltd. Pilatus PC-6 Service Bulletin Number 53-002, Revision No. 2, dated September 24, 2007, for related information. Issued in Kansas City, Missouri, on June 3, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-12816 Filed 6-6-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-124590-07] RIN 1545-BG11 Guidance Regarding Foreign Base Company Sales Income; Hearing AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of public hearing on proposed rulemaking. SUMMARY: This document provides notice of public hearing on proposed regulations that provide guidance relating to foreign base company sales income, as defined in section 954(d), in cases in which personal property sold by a controlled foreign corporation
(CFC)is manufactured, produced, or constructed pursuant to a contract manufacturing arrangement or by one or more branches of the CFC. DATES: The public hearing is being held on Tuesday, July 29, 2008, at 10 a.m. The IRS must receive outlines of the topics to be discussed at the public hearing by Tuesday, July 8, 2008. ADDRESSES: The public hearing is being held in the IRS Auditorium, Internal Revenue Service Building, and 1111 Constitution Avenue, NW., Washington, DC 20224. Send Submissions to CC:PA:LPD:PR (REG-124590-07), room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday to CC:PA:LPD:PR (REG-124590-07), Couriers Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC or sent electronically to *Oluwafunmilayo.P.Taylor@irscounsel.treas.gov* (REG-124590-07). FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Ethan Atticks at
(202)622-3840; concerning submissions of comments, the hearing and/or to be placed on the building access list to attend the hearing Funmi Taylor at
(202)622-7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: The subject of the public hearing is the notice of proposed rulemaking (REG-124590-07) that was published in the **Federal Register** on Thursday, February 28, 2008 (73 FR 10716). The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing that submitted written comments, must submit an outline of the topics to be addressed and the amount of time to be denoted to each topic (signed original and eight copies). A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available, free of charge, at the hearing or in the Freedom of Information Reading Room (FOIA RR) (Room 1621) which is located at the 11th and Pennsylvania Avenue, NW., entrance, 1111 Constitution Avenue, NW., Washington, DC. Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this document. LaNita VanDyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E8-12875 Filed 6-6-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-106897-08] RIN 1545-BH65 Qualified Nonpersonal Use Vehicles AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking. SUMMARY: This document contains proposed regulations relating to qualified nonpersonal use vehicles as defined in section 274(i). Qualified nonpersonal use vehicles are excepted from the substantiation requirements of section 274(d)(4) that apply to listed property as defined in section 280F(d)(4). These proposed regulations would add clearly marked public safety officer vehicles as a new type of qualified nonpersonal use vehicles. These proposed regulations would affect employers that provide their employees with qualified nonpersonal use vehicles and the employees who use such vehicles. DATES: Written or electronic comments and requests for a public hearing must be received by September 8, 2008. ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-106897-08), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-106897-08), Couriers Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Additionally, taxpayers may submit electronic comments directly via the Federal eRulemaking Portal at *www.regulations.gov* (IRS REG-106897-08). FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, Don Parkinson or Selvan Boominathan at
(202)622-6040; concerning the submission of comments or requests for a hearing, Kelly Banks at
(202)622-3628 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background This document contains proposed Income Tax Regulations under section 274(i) added by section 2(b) of Public Law 99-44 (May 24, 1985), which provides a definition of qualified nonpersonal use vehicle. Temporary Regulation § 1.274-5T(k), identifying categories of qualified nonpersonal use vehicles, was issued in TD 8061 (1982-2 CB 93 (1985)). A notice of proposed rulemaking was issued by cross-reference to Temporary Regulation § 1.274-5T(k) (50 FR 46088, 1985-2 CB 809 (1985)). These proposed regulations incorporate the text of § 1.274-5T(k) and add clearly marked public safety officer vehicles as a new type of qualified nonpersonal use vehicle, listed along with clearly marked police and fire vehicles at § 1.274-5(k)(2)(ii)(A). Clearly marked public safety officer vehicles are added to the definition of clearly marked police and fire vehicles at § 1.274-5(k)(3), and an example is added at § 1.274-5(k)(8). (See § 601.601(d)(2)(ii)( *b* ).) Explanation of Provisions Section 274(d) provides that a taxpayer is not allowed a deduction or credit for certain expenses unless the expense is substantiated. These substantiation requirements apply to expenses incurred in the of use of any listed property (defined in section 280F(d)(4)), which includes any passenger automobile and any other property used as a means of transportation. Section 274(d) does not apply to any qualified nonpersonal use vehicle as defined in section 274(i). Section 274(i) provides that a qualified nonpersonal use vehicle is any vehicle which by reason of its nature is not likely to be used more than a de minimis amount for personal uses. The legislative history to section 274(i) provided a list of qualified nonpersonal use vehicles and identified a number of examples of qualified nonpersonal use vehicles such as school buses, qualified specialized utility repair trucks, and qualified moving vans. The legislative history indicated that Congress wanted the Commissioner to expand the list to include other vehicles appropriate for listing because by their nature it is highly unlikely that they will be used more than a very minimal amount for personal purposes. H.R. Rep. No. 99-34, at 11 (1985). Passenger automobiles such as sedans and sport utility vehicles are generally not exempt from taxation as qualified nonpersonal use vehicles because by design they can easily be used for personal purposes. However, unmarked law enforcement vehicles and clearly marked police and fire vehicles are included in the list of qualified nonpersonal use vehicles set forth in the legislative history to section 274(i) and incorporated into the proposed and temporary regulations. The IRS and the Treasury Department have become aware of a need for an additional category of vehicles to be included in the list of qualified nonpersonal use vehicles. Clearly marked vehicles provided to Federal, state and local government workers who respond to emergency situations do not satisfy the current regulations governing qualified nonpersonal use vehicles if the individual workers are not employed by either the fire department or police department. Accordingly, the proposed regulations add clearly marked public safety officer vehicles to the list of qualified nonpersonal use vehicles so that emergency responders receive the same treatment whether they work for the police department, fire department or another department of state or local government. A clearly marked public safety officer vehicle is a vehicle owned or leased by a governmental unit or any agency or instrumentality thereof, that is required to be used for commuting by a public safety officer as defined in section 402(l)(4)(C) who, when not on a regular shift, is on call at all times, provided that any personal use (other than commuting) of the vehicle outside the limit of the public safety officer's obligation to respond to an emergency is prohibited by such governmental unit. A public safety officer vehicle is clearly marked if, through painted insignia or words, it is readily apparent that the vehicle is a public safety officer vehicle. Section 402(l)(4)(c) provides that the term “public safety officer” shall have the same meaning given such term by the Omnibus Crime Control and Safe Streets Act of 1968, as codified at 42 U.S.C. 3796b(9)(A). 42 U.S.C. 3796b(9)(A) defines public safety officer as “an individual serving a public agency in an official capacity, with or without compensation, as a law enforcement officer, a firefighter, a chaplain, or as a member of a rescue squad or ambulance crew.” Proposed § 1.274-5(k) and
(l)provide a list of qualified nonpersonal use vehicles and related definitions. Section 1.274-5(k) and
(l)were originally proposed in 1985 (LR-145-84, 50 FR 46088, November 6, 1985) and simultaneously issued as a temporary regulation (TD 8061, 50 FR 46006, November 6, 1985). Paragraph
(k)of LR-145-84 is being re-proposed, with amendments, as part of these proposed regulations. Paragraph
(l)provides definitions of the terms “automobile,” “vehicle,” “employer,” “employee,” and “personal use.” Paragraph
(l)is being re-proposed, with no changes, as part of these proposed regulations. The corresponding provisions of the proposed regulations in LR-145-84 are withdrawn upon publication of this notice. The corresponding provisions of the temporary regulations in TD 8061 will be withdrawn once these proposed regulations are published as final regulations in the **Federal Register** . Special Analyses It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based upon the fact that these regulations do not require a collection of information and do not impose any new or different requirements on small entities. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking has been submitted to the Chief Council for Advocacy of the Small Business Administration for comment on its impact on small business. Comments and Requests for Public Hearings Before these proposed amendments are adopted, consideration will be given to any written comments that are submitted to CC:PA:LPD:PR (REG-106897-08). All comments will be available for public inspection and copying. A public hearing will be scheduled and held upon written request by any person who submits written comments on the proposed regulation. Notice of the time and place for the hearing will be published in the **Federal Register** . Drafting Information The principal authors of these regulations are Don E. Parkinson and Selvan V. Boominathan, Office of the Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and Treasury Department participated in their development. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * **Par. 2.** Section 1.132-5 paragraph
(h)is revised to read as follows: § 1.132-5 Working condition fringes.
(h)*Qualified nonpersonal use vehicles* —(1) *In general.* Except as provided in paragraph (h)(2) of this section, 100 percent of the value of the use of a qualified nonpersonal use vehicle (as described in § 1.274-5(k)) is excluded from gross income as a working condition fringe, provided that, in the case of a vehicle described in § 1.274-5(k)(3) through (8), the use of the vehicle conforms to the requirements of that paragraph.
(2)*Shared usage of qualified nonpersonal use vehicles* . In general, a working condition fringe under this paragraph
(h)is available to the driver and all passengers of a qualified nonpersonal use vehicle. However, a working condition fringe under this paragraph
(h)is available only with respect to the driver and not with respect to any passengers of a qualified nonpersonal use vehicle described in § 1.274-5(k)(2)(ii)(L) or (P). **Par. 3.** Section 1.274-5 paragraphs
(k)and
(l)and the last sentence of paragraph
(m)are revised to read as follows: § 1.274-5 Substantiation requirements.
(k)*Exceptions for qualified nonpersonal use vehicles* —(1) *In general.* The substantiation requirements of section 274(d) and this section do not apply to any qualified nonpersonal use vehicle (as defined in paragraph (k)(2) of this section).
(2)*Qualified nonpersonal use vehicle* —(i) *In general* . For purposes of section 274(d) and this section, the term *qualified nonpersonal use vehicle* means any vehicle which, by reason of its nature (that is, design), is not likely to be used more than a de minimis amount for personal purposes.
(ii)*List of vehicles* . Vehicles which are qualified nonpersonal use vehicles include the following:
(A)Clearly marked police, fire, and public safety officer vehicles (as defined and to the extent provided in paragraph (k)(3) of this section).
(B)Ambulances used as such or hearses used as such.
(C)Any vehicle designed to carry cargo with a loaded gross vehicle weight over 14,000 pounds.
(D)Bucket trucks (cherry pickers).
(E)Cement mixers.
(F)Combines.
(G)Cranes and derricks.
(H)Delivery trucks with seating only for the driver, or only for the driver plus a folding jump seat.
(I)Dump trucks (including garbage trucks).
(J)Flatbed trucks.
(K)Forklifts.
(L)Passenger buses used as such with a capacity of at least 20 passengers.
(M)Qualified moving vans (as defined in paragraph (k)(4) of this section).
(N)Qualified specialized utility repair trucks (as defined in paragraph (k)(5) of this section).
(O)Refrigerated trucks.
(P)School buses (as defined in section 4221(d)(7)(c)).
(Q)Tractors and other special purpose farm vehicles.
(R)Unmarked vehicles used by law enforcement officers (as defined in paragraph (k)(6) of this section) if the use is officially authorized.
(S)Such other vehicles as the Commissioner may designate.
(3)*Clearly marked police, fire, or public safety officer vehicles* . A police, fire, or public safety officer vehicle is a vehicle, owned or leased by a governmental unit, or any agency or instrumentality thereof, that is required to be used for commuting by a police officer, fire fighter, or public safety officer (as defined in section 402(l)(4)(C) of this chapter) who, when not on a regular shift, is on call at all times, provided that any personal use (other than commuting) of the vehicle outside the limit of the police officer's arrest powers or the fire fighter's or public safety officer's obligation to respond to an emergency is prohibited by such governmental unit. A police, fire, or public safety officer vehicle is clearly marked if, through painted insignia or words, it is readily apparent that the vehicle is a police, fire, or public safety officer vehicle. A marking on a license plate is not a clear marking for purposes of this paragraph (k).
(4)*Qualified moving van* . The term *qualified moving van* means any truck or van used by a professional moving company in the trade or business of moving household or business goods if—
(i)No personal use of the van is allowed other than for travel to and from a move site (or for de minimis personal use, such as a stop for lunch on the way between two move sites);
(ii)Personal use for travel to and from a move site is an irregular practice (that is, not more than five times a month on average); and
(iii)Personal use is limited to situations in which it is more convenient to the employer, because of the location of the employee's residence in relation to the location of the move site, for the van not to be returned to the employer's business location.
(5)*Qualified specialized utility repair truck* . The term *qualified specialized utility repair truck* means any truck (not including a van or pickup truck) specifically designed and used to carry heavy tools, testing equipment, or parts if—
(i)The shelves, racks, or other permanent interior construction which has been installed to carry and store such heavy items is such that it is unlikely that the truck will be used more than a de minimis amount for personal purposes; and
(ii)The employer requires the employee to drive the truck home in order to be able to respond in emergency situations for purposes of restoring or maintaining electricity, gas, telephone, water, sewer, or steam utility services.
(6)*Unmarked law enforcement vehicles* —(i) *In general* . The substantiation requirements of section 274(d) and this section do not apply to officially authorized uses of an unmarked vehicle by a “law enforcement officer”. To qualify for this exception, any personal use must be authorized by the Federal, State, county, or local governmental agency or department that owns or leases the vehicle and employs the officer, and must be incident to law-enforcement functions, such as being able to report directly from home to a stakeout or surveillance site, or to an emergency situation. Use of an unmarked vehicle for vacation or recreation trips cannot qualify as an authorized use.
(ii)*Law enforcement officer* . The term *law enforcement officer* means an individual who is employed on a full-time basis by a governmental unit that is responsible for the prevention or investigation of crime involving injury to persons or property (including apprehension or detention of persons for such crimes), who is authorized by law to carry firearms, execute search warrants, and to make arrests (other than merely a citizen's arrest), and who regularly carries firearms (except when it is not possible to do so because of the requirements of undercover work). The term “law enforcement officer” may include an arson investigator if the investigator otherwise meets the requirements of this paragraph (k)(6)(ii), but does not include Internal Revenue Service special agents.
(7)*Trucks and vans* . The substantiation requirements of section 274(d) and this section apply generally to any pickup truck or van, unless the truck or van has been specially modified with the result that it is not likely to be used more than a de minimis amount for personal purposes. For example, a van that has only a front bench for seating, in which permanent shelving that fills most of the cargo area has been installed, that constantly carries merchandise or equipment, and that has been specially painted with advertising or the company's name, is a vehicle not likely to be used more than a de minimis amount for personal purposes.
(8)*Examples* . The following examples illustrate the provisions of paragraphs (k)(3) and
(6)of this section: Example 1. Detective C, who is a “law enforcement officer” employed by a state police department, headquartered in City M, is provided with an unmarked vehicle (equipped with radio communication) for use during off-duty hours because C must be able to communicate with headquarters and be available for duty at any time (for example, to report to a surveillance or crime site). The police department generally has officially authorized personal use of the vehicle by C but has prohibited use of the vehicle for recreational purposes or for personal purposes outside the state. Thus, C's use of the vehicle for commuting between headquarters or a surveillance site and home and for personal errands is authorized personal use as described in paragraph (k)(6)(i) of this section. With respect to these authorized uses the vehicle is not subject to the substantiation requirements of section 274(d) and the value of these uses is not included in C's gross income. Example 2. Detective T is a “law enforcement officer” employed by City M. T is authorized to make arrests only within M's city limits. T, along with all other officers of the force, is ordinarily on duty for eight hours each work day and on call during the other sixteen hours. T is provided with the use of a clearly marked police vehicle in which T is required to commute to his home in City M. The police department's official policy regarding marked police vehicles prohibits personal use (other than commuting) of the vehicles outside the city limits. When not using the vehicle on the job, T uses the vehicle only for commuting, personal errands on the way between work and home, and personal errands within City M. All use of the vehicle by T conforms to the requirements of paragraph (k)(3) of this section. Therefore, the value of that use is excluded from T's gross income as a working condition fringe and the vehicle is not subject to the substantiation requirements of section 274(d). Example 3. Director C is employed by City M as the director of the City's rescue squad and is provided with a vehicle for use in responding to emergencies. The City's rescue squad is not a part of City M's police or fire departments. The director's vehicle is a sedan which is painted with insignia and words identifying the vehicle as being owned by the City's rescue squad. C, when not on a regular shift, is on call at all times. The City's official policy regarding clearly marked public safety officer vehicles prohibits personal use (other than for commuting) of the vehicle outside of the limits of the public safety officer's obligation to respond to an emergency. When not using the vehicle to respond to emergencies, City M authorizes C to use the vehicle only for commuting, personal errands on the way between work and home, and personal errands within the limits of C's obligation to respond to emergencies. With respect to these authorized uses, the vehicle is not subject to the substantiation requirements of section 274(d) and the value of these uses is not includable in C's gross income.
(l)*Definitions* . For purposes of section 274(d) and this section, the terms *automobile* and *vehicle* have the same meanings as prescribed in §§ 1.61-21(d)(1)(ii) and 1.61-21(e)(2), respectively. Also, for purposes of section 274(d) and this section, the terms *employer* , *employee* and *personal use* have the same meanings as prescribed in § 1.274-6T(e).
(m)* * * However, paragraph (j)(3) of this section applies to expenses paid or incurred after September 30, 2002, and paragraph
(k)applies to clearly marked public safety officer vehicles, as defined in 1.274-5(k)(3), only with respect to uses occurring after January 1, 2009. **Par. 4.** Section 1.274-5T is revised by amending paragraphs
(k)and
(l)as follows: § 1.274-5T Substantiation requirements (temporary).
(k)and
(l)[Reserved]. For further guidance, see §§ 1.274-5(k) and (l). **Par. 5.** Section 1.280F-6 is amended by revising paragraph (b)(2)(ii) to read: § 1.280F-6 Special rules and definitions.
(b)* * *
(2)* * *
(ii)*Exception* . The term “listed property” does not include any vehicle that is a qualified nonpersonal use vehicle as defined in section 274(i) and § 1.274-5(k). Steven Miller, Acting Deputy Commissioner for Services and Enforcement. [FR Doc. E8-12805 Filed 6-6-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 301 [REG-143716-04] RIN 1545-BD67 Declaratory Judgments—Gift Tax Determinations AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking and notice of public hearing. SUMMARY: This document contains proposed regulations under section 7477 of the Internal Revenue Code
(Code)regarding petitions filed with the United States Tax Court for declaratory judgments as to the valuation of gifts. Changes to the applicable law were made by section 506(c)(1) of the Taxpayer Relief Act of 1997 (TRA). The proposed regulations primarily affect individuals who are donors of gifts. The proposed regulations provide rules for determining whether a donor may petition the Tax Court with respect to the value of a gift, including guidance regarding the definition of “exhaustion of administrative remedies.” This document also provides a notice of a public hearing on these proposed regulations. DATES: Written and electronic comments must be received by September 8, 2008. Outlines of topics to be discussed at the public hearing scheduled for October 16, 2008, must be received by September 11, 2008. ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-143716-04), room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-143716-04), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Alternatively, taxpayers may submit electronic comments via the Federal eRulemaking Portal at *http://www.regulations.gov* (IRS REG-143716-04). The public hearing will be held in the auditorium of the Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, Juli Ro Kim or George Masnik,
(202)622-3090; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Kelly Banks at
(202)622-7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background Gift tax is computed by determining a tax on the total of the gifts deemed made by the donor in the year for which the return is filed (the current calendar year) plus the total of that donor's gifts in prior years (prior taxable gifts). The tax so computed is then reduced by the tax that would have been payable on the prior taxable gifts, had the tax rate for the current taxable year applied to the prior taxable gifts. The result (after taking into account the applicable credit amount under section 2505) is the gift tax on the gifts in the current calendar year. Similarly, the estate tax is computed by determining a tax on the sum of the value of the decedent's taxable estate and the value of certain taxable gifts (adjusted taxable gifts) made by the decedent prior to death. The tax computed is then reduced by the gift tax that would have been payable on the adjusted taxable gifts, had the estate tax rate applied to the adjusted taxable gifts. The result (after allowing for various credits) is the estate tax on the taxable estate. The Taxpayer Relief Act of 1997
(TRA)(Pub. L. 105-34, 111 Stat. 855), the Internal Revenue Service Restructuring and Reform Act of 1998 (Pub. L. 105-206, 112 Stat. 685), and the Tax and Trade Relief Extension Act of 1998 (Pub. L. 105-277, 112 Stat. 2681-909), (collectively, the 1998 Acts), enacted or amended sections 2001(f), 2504(c), 6501(c)(9), and 7477, effective in the case of gifts made after August 5, 1997, to provide a degree of finality regarding the valuation of lifetime gifts for gift and estate tax purposes. Congress was concerned that the prior regime resulted in the resolution of controversies based on stale evidence, and necessitated the retention of records for unduly long periods of time. H.R. Rep. No. 105-148 at 359 (1997). Under sections 6501(a) and (c)(9) as amended by TRA and the 1998 Acts, and the applicable regulations, if a transfer of property is adequately disclosed on a gift tax return, then the period of limitations for assessment of gift tax with regard to that transfer will commence to run on the date the return is filed. Once the time for assessment of gift tax has expired for a transfer made after August 5, 1997, the value of the gift as “finally determined” for gift tax purposes, as defined in section 2001(f), is the value to be used for purposes of determining prior taxable gifts in computing the gift tax liability in subsequent years under section 2504(c), and for purposes of determining adjusted taxable gifts in computing the estate tax liability under section 2001(f). Under §§ 20.2001-1(b) and 25.2504-2(b), this finality rule applies with respect to all issues that might be raised with respect to the transfer, including valuation issues and legal issues. The amount of a gift is finally determined if:
(1)The amount is shown on a gift tax return and the IRS does not contest the amount before the period for assessing gift tax expires;
(2)before the period for assessing gift tax expires, the amount is adjusted by the IRS and the taxpayer does not contest the adjusted amount; or,
(3)the amount is determined by a court or pursuant to a settlement agreement between the taxpayer and the IRS. Section 7477 was enacted as part of TRA in conjunction with these other provisions to provide a declaratory judgment procedure pursuant to which taxpayers may contest in the United States Tax Court an IRS determination regarding the value of a gift. See H.R. Conf. Rep. No. 105-220, at 407-408 (1997). In the absence of section 7477, without an actual gift tax deficiency, a taxpayer would be unable to petition the Tax Court to contest the determination or, without an overpayment of tax, file a claim for refund or bring suit for refund in Federal court. This could occur, for example, if an increase in gift tax determined under section 2502 is offset by the taxpayer's applicable credit amount under section 2505(a), so that no additional tax would be assessed as a result of the valuation increase. Thus, without section 7477, such a taxpayer would be left without any way to challenge the IRS determination, even though, upon the expiration of the statute of limitations, that determination would become binding for purposes of calculating the cumulative gift tax on all future gifts of that taxpayer, as well as the taxpayer's estate tax liability. Explanation of Provisions Under section 7477(a), the donor may contest an IRS determination of the amount of a gift. Specifically, the donor may petition the Tax Court for a declaratory judgment, provided that certain requirements are met. Section 7477(a) applies in the case of an actual controversy involving a determination by the IRS regarding the value of a gift that is shown on the gift tax return or disclosed on the gift tax return or in a statement attached to that return. These proposed regulations provide a procedure for pursuing a declaratory judgment in the Tax Court pursuant to section 7477 in situations where, prior to the enactment of that section, the taxpayer would have had no remedy to challenge the IRS determination. Specifically, the procedure provided by these proposed regulations applies only in those situations where an adjustment by the IRS does not result in a gift tax deficiency or refund. In situations where the IRS adjustment results in a proposed tax deficiency or a potential refund, taxpayers should not follow the procedures in these proposed regulations but should continue to follow the procedures already in place to dispute a deficiency or claim a refund. These procedures more efficiently address and resolve disputes involving a deficiency or refund. The first requirement for eligibility for relief under section 7477 is that the transfer must be shown or disclosed “on the return of tax imposed by chapter 12,” that is, a Federal gift tax return, or on a statement attached to the return. Under the proposed regulations, the return of tax imposed by chapter 12 is defined as the last gift tax return for the calendar year filed on or before the due date of the return, including extensions granted (if any), or if a timely return is not filed, the first gift tax return for the calendar year filed after the due date. If the transfer is not shown or disclosed on the gift tax return, or on a statement attached to the return, a declaratory judgment under section 7477 is not available. If, however, a transfer is disclosed on the return or on a statement attached to the return, this eligibility requirement for the section 7477 procedure is satisfied, even if the transfer is disclosed in a manner that does not satisfy the requirements of section 6501(c)(9) and § 301.6501(c)-1(e) or
(f)pertaining to adequate disclosure sufficient to commence the running of the period of limitations on assessment. There may be no compelling reason for the IRS to examine a transaction that is disclosed on the return but not in a manner sufficient to trigger the running of the statute of limitations, because the time period for adjusting the value of the gift is not limited by the statute of limitations for assessments. The Treasury Department and the IRS, however, recognize that in many cases the IRS may prefer to contemporaneously resolve the transfer tax treatment of that transaction, even though the standards for adequate disclosure with regard to that transaction have not been satisfied by the donor. Thus, the IRS in its discretion may make a determination regarding the transfer and place the transfer in controversy by mailing a notice of determination of value used in unagreed cases (Letter 3569) with regard to that transfer. The ability to place a transfer that is not adequately disclosed in controversy is consistent with the Congressional purpose in enacting the TRA provisions, noted previously, to promote the early resolution of gift tax controversies based on contemporaneous evidence. The IRS and Treasury Department emphasize that the issuance of a Letter 3569 with regard to such a transfer does not constitute a determination by the IRS that the transfer was adequately disclosed or otherwise cause the period of limitations on assessment to commence to run with respect to that transfer. Alternatively, the IRS may in its discretion decide not to put a transfer in controversy at that time (whether or not any other transfer reported on a gift tax return is then put into controversy). If the IRS decides not to put the transfer into controversy at that time, the IRS will not issue a Letter 3569 (described in this preamble) (or the Letter 3569 issued will not address that transfer), the declaratory judgment procedure will not be available for that transfer, and the limitations period applicable to that transfer will remain open. Section 7477 also requires an actual controversy with respect to a determination by the IRS of the value of the disclosed transfer. Thus, the donor is not permitted to bypass the examination process and unilaterally seek a declaratory judgment. Generally, the IRS must propose adjustments with which the donor disagrees. Accordingly, the proposed regulations provide that, in order for the section 7477 declaratory judgment procedure to be available to a donor, the IRS must first make a determination regarding the gift tax treatment of the transfer that results in an actual controversy in a situation where the adjustments do not result in a gift tax deficiency or refund. This IRS determination is deemed to be made by the mailing of a Letter 3569 to notify the taxpayer of the adjustments proposed by the IRS. The mailing of this letter to the donor is the prerequisite for filing a petition with the Tax Court requesting a declaratory judgment under section 7477. Section 7477 also requires that the donor's pleading seeking a declaratory judgment under section 7477 must be filed with the Tax Court before the 91st day after the mailing of the Letter 3569 by the IRS. The pleading must be in the form of a petition subject to Tax Court Rule 211(d). Finally, section 7477(b)(2) provides that the Tax Court may not issue a declaratory judgment under section 7477 unless it first determines that the donor has exhausted all administrative remedies available to the donor within the IRS with respect to the controversy. Tax Court Rule 211(d) requires that the petition in an action under section 7477 must contain a statement that the petitioner has exhausted all administrative remedies within the IRS. See also Tax Court Rule 210(c)(4). Accordingly, the proposed regulations set forth the administrative remedies available to the donor with respect to a determination by the IRS of the amount of a gift, and the circumstances in which the IRS will not contest the donor's allegation that administrative remedies have been exhausted. The administrative remedies are intended to parallel those applicable in the case of an asserted gift tax deficiency. Specifically, the proposed regulations provide that the IRS will not contest the donor's allegation that the donor's administrative remedies have been exhausted if:
(1)The donor requests Appeals consideration in writing within 30 calendar days after the mailing date of a notice of preliminary determination of value (Preliminary Determination Letter) from the IRS, or by such later date for responding to the Preliminary Determination Letter as determined pursuant to IRS procedures;
(2)the donor participates fully in the Appeals consideration process, including without limitation timely submitting all additional information related to the amount of the gift that is requested by the IRS in connection with (or as a follow-up to) the Appeals consideration process; and
(3)the IRS mails to the donor the Letter 3569, which will notify the donor of the proposed adjustments and of the donor's right to contest the determination by filing a petition for declaratory judgment with the Tax Court before the 91st day after the date of mailing the Letter 3569. The Letter 3569 usually will be issued by the Appeals office. However, because section 7477 requires that the Tax Court, rather than the IRS, determines whether the donor has exhausted all administrative remedies, the donor generally will be sent a Letter 3569 in those situations where the donor does not respond to the Preliminary Determination Letter, or expressly declines to participate in the Appeals process. If a donor does not respond to a Preliminary Determination Letter, or if a donor does not participate in the Appeals process, the IRS will consider the donor to have failed to exhaust administrative remedies. In such cases, the IRS may challenge any allegation in the donor's petition for a section 7477 declaratory judgment that the donor has exhausted all administrative remedies. The proposed regulations also provide that the IRS will not contest the donor's allegation that all administrative remedies have been exhausted in certain circumstances where the above-described process is not followed by the IRS. (For example, the IRS might mail a Letter 3569 to the donor in the absence of these other preliminary steps where, because of the imminent expiration of the applicable statute of limitations, the IRS believes there is not sufficient time to issue a Preliminary Determination Letter to allow Appeals consideration.) If the IRS's decision not to issue a Preliminary Determination Letter is not due to the donor's actions or failure to act, the IRS will not contend that the donor failed to exhaust all administrative remedies, provided that the donor fully participates in the Appeals consideration process offered by the IRS during the pendancy of the Tax Court proceeding. In this regard, the IRS and Treasury Department do not view the reference to section 7477 contained in § 601.106(a)(2)(iv) of the Statement of Procedural Rules as currently in effect and Rev. Proc. 87-24 (1987-1 CB 720) as prohibiting Appeals' jurisdiction to consider docketed cases under current section 7477. The version of section 7477 referenced in those items was repealed prior to the enactment of the current section 7477 as part of the TRA. The proposed regulations confirm that the donor is not required to consent to an extension of the time within which gift tax with respect to the transfer at issue may be assessed in order to exhaust the donor's administrative remedies, and that the failure to consent to such an extension will not be taken into account for this purpose. See section 7430(b)(1) and *Minahan* v. *Commissioner,* 88 T.C. 492 (1987), considering this issue in the context of section 7430(b)(1) prior to amendment by Public Law 104-168 (110 Stat. 1452). Under the proposed regulations, a donor may petition for a declaratory judgment with respect to disputes regarding valuation and/or other related issues. This is consistent with §§ 20.2001-1(b) and 25.2504-2(b) providing that, once the gift tax statute of limitations has expired with respect to a transfer, the IRS is precluded from making any adjustments with respect to that transfer for purposes of determining prior taxable gifts or adjusted taxable gifts, regardless of whether the adjustment involves a valuation issue or a legal issue pertaining to the proper interpretation of the gift tax law. See also § 301.6501(c)-1(f)(5) providing a similar rule regarding transfers that are incomplete gifts but are reported as completed gifts. Accordingly, even if a gift tax adjustment does not generate any additional gift tax liability, the IRS nevertheless is required to propose the adjustment (and to take all other necessary steps) in order to challenge the return as filed within the statutory limitations period, regardless of the nature of the issue presented. Sections 2001(f), 2504(c), 6501(c)(9) and 7477, as enacted or amended by TRA and the 1998 Acts, provide an integrated statutory regime pursuant to which taxpayers are accorded finality with respect to adequately disclosed transfers (except for transfers that are reported as incomplete gifts), while the IRS is afforded the reasonable opportunity to identify in a timely manner returns that present issues that merit further examination. The section 7477 declaratory judgment procedure is a necessary part of this regime because it provides a mechanism to finally resolve any disputed adjustments in circumstances where there is no tax assessment and thus the donor would otherwise be unable to satisfy the jurisdictional requirements for any judicial resolution. The IRS and Treasury Department believe it is appropriate for the declaratory judgment mechanism under section 7477, when available in circumstances where there is no deficiency or refund, to be available for all adjustments regardless of whether the basis for those adjustments is factual, legal, or both. Special Analyses It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Small Business Administration for comment on the impact on small business. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight
(8)copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department request comments on the clarity of the proposed regulations and how they may be made easier to understand. All comments will be available for public inspection and copying. A public hearing has been scheduled for October 16, 2008 at 10 a.m. in the auditorium of the Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble. The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit comments by September 8, 2008, and submit an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight
(8)copies) by September 8, 2008. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing. Drafting Information The principal author of these proposed regulations is Juli Ro Kim, Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. Other personnel from the IRS and the Treasury Department participated in their development. List of Subjects in 26 CFR Part 301 Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements. Proposed Amendments to the Regulations Accordingly, 26 CFR part 301 is proposed to be amended as follows: PART 301—PROCEDURE AND ADMINISTRATION **Paragraph 1** . The authority citation for part 301 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * **Par. 2** . Section 301.7477-1 is revised to read as follows: § 301.7477-1 Declaratory judgments relating to the value of certain gifts for gift tax purposes.
(a)*In general.* If the requirements contained in paragraph
(d)of this section are satisfied, a donor may petition the United States Tax Court under section 7477 for a declaratory judgment regarding the amount of one or more of the donor's gifts during the calendar year for Federal gift tax purposes, if the adjustment(s) proposed by the Internal Revenue Service
(IRS)will not result in any deficiency in or refund of the donor's gift tax liability for that calendar year.
(b)*Declaratory judgment procedure* —(1) *In general* . If a donor does not resolve a dispute with the IRS concerning the value of a transfer for gift tax purposes at the Examination level, the donor will be sent a notice of preliminary determination of value, or such other document as may be utilized by the IRS for this purpose from time to time, but referred to in this section as a Preliminary Determination Letter, inviting the donor to file a formal protest and to request consideration by the appropriate IRS Appeals office. See §§ 601.105 and 601.106 of this chapter. Subsequently, the donor will be sent a notice of determination of value (Letter 3569, or such other document as may be utilized from time to time by the IRS for this purpose in cases where no deficiency or refund would result, but referred to in this section as Letter 3569) if—
(i)The donor requests Appeals consideration in writing within 30 calendar days after the mailing date of the Preliminary Determination Letter, or by such later date as determined pursuant to IRS procedures, and the matter is not resolved by Appeals;
(ii)The donor does not request Appeals consideration within the time provided in paragraph (b)(1)(i) of this section; or
(iii)The IRS does not issue a Preliminary Determination Letter in circumstances described in paragraph (d)(3)(ii) of this section.
(2)*Notice of determination of value* . The Letter 3569 will notify the donor of the adjustment(s) proposed by the IRS, and will advise the donor that the donor may contest the determination made by the IRS by filing a petition with the Tax Court before the 91st day after the date on which the Letter 3569 was mailed to the donor by the IRS.
(3)*Tax Court petition* . If the donor does not file a timely petition with the Tax Court, the IRS determination as set forth in the Letter 3569 will be considered the final determination of value, as defined in sections 2504(c) and 2001(f). If the donor files a timely petition with the Tax Court, the Tax Court will determine whether the donor has exhausted available administrative remedies. Under section 7477, the Tax Court is not authorized to issue a declaratory judgment unless the Tax Court finds that the donor has exhausted all administrative remedies within the IRS. See paragraph (d)(3) of this section regarding the exhaustion of administrative remedies.
(c)*Adjustments subject to declaratory judgment procedure* . The declaratory judgment procedures set forth in this section apply to adjustments involving all issues relating to the transfer, including without limitation valuation issues and legal issues involving the interpretation and application of the gift tax law.
(d)*Requirements for declaratory judgment procedure.* The declaratory judgment procedure provided in this section is available to a donor with respect to a transfer only if the requirements of paragraphs (d)(1) through
(4)of this section with regard to that transfer are satisfied.
(1)*Reporting.* The transfer is shown or disclosed on the return of tax imposed by chapter 12 for the calendar year during which the transfer was made or on a statement attached to such return. For purposes of this paragraph, the term return of tax imposed by chapter 12 means the last gift tax return (Form 709, “United States Gift (and Generation-skipping Transfer) Tax Return,” or such other form as may be utilized for this purpose from time to time by the IRS) for the calendar year filed on or before the due date of the return, including extensions granted if any, or, if a timely return is not filed, the first gift tax return for that calendar year filed after the due date. For purposes of satisfying this requirement, the transfer need not be reported in a manner that constitutes adequate disclosure within the meaning of § 301.6501(c)-1(e) or
(f)(and thus for which, under §§ 20.2001-1(b) and 25.2504-2(b) of this chapter, the period will not expire during which the IRS may adjust the value of the gift). The issuance of a Letter 3569 with regard to a transfer disclosed on a return does not constitute a determination by the IRS that the transfer was adequately disclosed, or otherwise cause the period of limitations on assessment to commence to run with respect to that transfer. In addition, in the case of a transfer that is shown on the return, the IRS may in its discretion choose to defer until a later time making a determination with regard to such transfer. If the IRS exercises its discretion to defer such determination in that case, the transfer will not be addressed in the Letter 3569 (if any) sent to the donor currently, and the donor is not yet eligible for a declaratory judgment with regard to that transfer under section 7477.
(2)*IRS determination and actual controversy* . The IRS makes a determination regarding the gift tax treatment of the transfer that results in an actual controversy. The IRS makes a determination that results in an actual controversy with respect to a transfer by mailing a Letter 3569 to the donor, thereby notifying the donor of the adjustment(s) proposed by the IRS with regard to that transfer and of the donor's rights under section 7477.
(3)*Exhaustion of administrative remedies* —(i) *In general* — *Appeals office consideration* . The Tax Court determines that the donor has exhausted all administrative remedies available within the IRS for resolving the controversy. For purposes of this section, the IRS will consider a donor to have exhausted all administrative remedies if, prior to filing a petition in Tax Court (except as provided in paragraph (d)(3)(ii) of this section), the donor, or a qualified representative of the donor described in § 601.502 of this chapter, timely requests consideration by Appeals and participates fully in the Appeals consideration process, including, without limitation, timely submitting all information related to the transfer that is requested by the IRS in connection with the Appeals consideration. A timely request for consideration by Appeals is a written request from the donor for Appeals consideration made within 30 days after the mailing date of the Preliminary Determination Letter, or by such later date for responding to the Preliminary Determination Letter as is agreed to between the donor and the IRS.
(ii)*No Preliminary Determination Letter issued* . If the IRS does not issue a Preliminary Determination Letter to the donor prior to the issuance of Letter 3569, the IRS nevertheless will consider the donor to have exhausted all administrative remedies within the IRS for purposes of section 7477 upon the issuance of the Letter 3569, provided that—
(A)The IRS decision not to issue the Preliminary Determination Letter was not due to actions or inactions of the donor (such as a failure to supply requested information or a current mailing address to the Area Director having jurisdiction over the tax matter); and
(B)The donor, or a qualified representative of the donor described in § 601.502 of this chapter, after the filing of a petition in Tax Court for a declaratory judgment pursuant to section 7477, fully participates (within the meaning of paragraph (d)(3)(i) of this section) in the Appeals office consideration when offered by the IRS while the case is in docketed status.
(iii)*Failure to agree to extension of time for assessment.* The donor has the right to agree (or to decline to agree) to an extension of the time under section 6501 within which gift tax with respect to the transfer at issue may be assessed. For purposes of section 7477, the donor's refusal to agree to such an extension will not be considered by the IRS to constitute a failure by the donor to exhaust all administrative remedies available to the donor within the IRS.
(4)*Timely petition in Tax Court* . The donor files a pleading with the Tax Court requesting a declaratory judgment under section 7477. This pleading must be filed with the Tax Court before the 91st day after the date of mailing of the Letter 3569 by the IRS to the donor. The pleading must be in the form of a petition subject to Tax Court Rule 211(d).
(e)*Examples.* The following examples illustrate the provisions of this section. These examples, however, do not address any other situations that might affect the Tax Court's jurisdiction over the proceeding. The examples read as follows: Example 1. *Exhaustion of administrative remedies.* The donor
(D)timely files a Form 709, “United States Gift (and Generation-Skipping Transfer) Tax Return,” on which D reports D's completed gift of closely held stock. After conducting an examination, the IRS concludes that the value of the stock on the date of the gift is greater than the value reported on the return. Because the amount of D's available applicable credit amount under section 2505 is sufficient to cover any resulting tax liability, no gift tax deficiency will result from the adjustment. D is unable to resolve the matter with the IRS examiner. The IRS sends a notice of preliminary determination of value (Preliminary Determination Letter) to D informing D of the proposed adjustment. D, within 30 calendar days after the mailing date of the letter, submits a written request for Appeals consideration. During the Appeals process, D provides to the Appeals office all additional information (if any) requested by Appeals relevant to the determination of the value of the stock in a timely fashion. The Appeals office and D are unable to reach an agreement regarding the value of the stock as of the date of the gift. The Appeals office sends D a notice of determination of value (Letter 3569). For purposes of section 7477, the IRS will consider D to have exhausted all available administrative remedies within the IRS, and thus will not contest the allegation in D's petition that D has exhausted all such administrative remedies. Example 2. *Exhaustion of administrative remedies.* Assume the same facts as in *Example 1* , except that D does not timely request consideration by Appeals after receiving the Preliminary Determination Letter. A Letter 3569 is mailed to D more than 30 days after the mailing of the Preliminary Determination Letter and prior to the expiration of the period of limitations for assessment of gift tax. D timely files a petition in Tax Court pursuant to section 7477. After the case is docketed, D requests Appeals consideration. In this situation, because D did not respond timely to the Preliminary Determination Letter with a written request for Appeals consideration, the IRS will not consider D to have exhausted all administrative remedies available within the IRS for purposes of section 7477 prior to filing the petition in Tax Court, and thus may contest any allegation in D's petition that D has exhausted all such administrative remedies. Example 3. *Exhaustion of administrative remedies.* D timely files a Form 709 on which D reports D's completed gifts of interests in a family limited partnership. After conducting an examination, the IRS proposes to adjust the value of the gift as reported on the return. No gift tax deficiency will result from the adjustments, however, because D has a sufficient amount of available applicable credit amount under section 2505. D declines to consent to extend the time for the assessment of gift tax with respect to the gifts at issue. Because of the pending expiration of the period of limitation on assessment with respect to the gifts, the IRS determines that there is not adequate time for Appeals consideration. Accordingly, the IRS mails to D a Letter 3569, even though a Preliminary Determination Letter had not first been issued to D. D timely files a petition in Tax Court pursuant to section 7477. After the case is docketed in Tax Court, D is offered the opportunity for Appeals to consider any dispute regarding the determination and participates fully in the Appeals consideration process. However, the Appeals office and D are unable to resolve the issue. The IRS will consider D to have exhausted all administrative remedies available within the IRS, and thus will not assert that D has not exhausted all such administrative remedies. Example 4. *Legal issue.* In 2006, D transfers nonvested stock options to a trust for the benefit of D's child. D timely files a Form 709 reporting the transfer as a completed gift for Federal gift tax purposes and complies with the adequate disclosure requirements for purposes of triggering the commencement of the applicable statute of limitations. Pursuant to § 301.6501(c)-1(f)(5), adequate disclosure of a transfer that is reported as a completed gift on the Form 709 will commence the running of the period of limitations for assessment of gift tax on D, even if the transfer is ultimately determined to be an incomplete gift for purposes of § 25.2511-2 of this chapter. After conducting an examination, the IRS concurs with the reported valuation of the stock options, but concludes that the reported transfer is not a completed gift for Federal gift tax purposes. D is unable to resolve the matter with the IRS examiner. Assuming that the IRS mails to D a Letter 3569 with regard to this transfer, and that D complies with the administrative procedures set forth in this section, including the exhaustion of all administrative remedies available within the IRS, then D may file a petition for declaratory judgment with the Tax Court pursuant to section 7477. Example 5. *Transfers in controversy* . On April 16, 2007, D timely files a Form 709 on which D reports gifts made in 2006 of fractional interests in certain real property and of interests in a family limited partnership (FLP). However, although the gifts are disclosed on the return, the return does not contain information sufficient to constitute adequate disclosure under § 301.6501(c)-1(e) or
(f)for purposes of the application of the statute of limitations on assessment of gift tax with respect to the reported gifts. The IRS conducts an examination and concludes that the value of both the interests in the real property and the FLP interests on the date(s) of the transfers are greater than the values reported on the return. No gift tax deficiency will result from the adjustments because D has a sufficient amount of remaining applicable credit amount under section 2505. However, D does not agree with the adjustments. The IRS sends a Preliminary Determination Letter to D informing D of the proposed adjustments in the value of the reported gifts. D, within 30 calendar days after the mailing date of the letter, submits a written request for Appeals consideration. The Appeals office and D are unable to reach an agreement regarding the value of any of the gifts. In the exercise of its discretion, the IRS decides to resolve currently only the value of the real property interests, and to defer the resolution of the value of the FLP interests. On May 28, 2009, the Appeals office sends D a Letter 3569 addressing only the value of the gifts of interests in the real property. Because none of the gifts reported on the return filed on April 16, 2007, were adequately disclosed for purposes of § 301.6501(c)-1(e) or (f), the period of limitations during which the IRS may adjust the value of those gifts has not begun to run. Accordingly, the Letter 3569 is timely mailed. If D timely files a petition in Tax Court pursuant to section 7477 with regard to the value of the interests in the real property, then, assuming the other requirements of section 7477 are satisfied with regard to those interests, the Tax Court's declaratory judgment, once it becomes final, will determine the value of the gifts of the interests in the real property. Because the IRS has not yet put the gift tax value of the interests in the FLP into controversy, the procedure under section 7477 is not available with regard to those gifts. **Par. 3** . Section 301.7477-2 is added to read as follows: § 301.7477-2 Effective date. Section 301.7477-1 applies to civil proceedings described in section 7477 filed in the United States Tax Court on or after the date these regulations are published as final regulations in the **Federal Register** . Linda E. Stiff, Deputy Commissioner for Services and Enforcement. [FR Doc. E8-12894 Filed 6-6-08; 8:45 am] BILLING CODE 4830-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 721 [EPA-HQ-OPPT-2006-0898; FRL-8351-4] RIN 2070-AB27 Proposed Significant New Use Rules on Certain Chemical Substances AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing significant new use rules (SNURs) under section 5(a)(2) of the Toxic Substances Control Act
(TSCA)for two chemical substances which were the subject of premanufacture notices (PMNs). The two substances are dodecandioic acid, 1, 12-dihydrazide (CAS No. 4080-98-2; PMNs P-01-759 and P-05-555) and thiophene, 2,5-dibromo-3-hexyl- (CAS No. 116971-11-0; PMN P-07-283). This action would require persons who intend to manufacture, import, or process either of these two substances for an activity that is designated as a significant new use by this proposed rule to notify EPA at least 90 days before commencing that activity. The required notification would provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs. DATES: Comments must be received on or before July 9, 2008. ADDRESSES: Submit your comments, identified by docket identification
(ID)number EPA-HQ-OPPT-2006-0898, by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Hand Delivery* : OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID Number EPA-HQ-OPPT-2006-0898. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is
(202)564-8930. Such deliveries are only accepted during the DCO's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions* : Direct your comments to docket ID number EPA-HQ-OPPT-2006-0898. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . *Docket* : All documents in the docket are listed in the docket index available in regulations.gov. 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. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically at *http://www.regulations.gov* , or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. The telephone number of the EPA/DC Public Reading Room is
(202)566-1744, and the telephone number for the OPPT Docket is
(202)566-0280. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure. FOR FURTHER INFORMATION CONTACT: *For general information contact* : Colby Lintner, Regulatory Coordinator, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202)554-1404; e-mail address: *TSCA-Hotline@epa.gov* . *For technical information contact* : Tracey Pennington, Chemical Control Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202)564-2209; e-mail address: *pennington.tracey@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you manufacture, import, process, or use the chemical substances contained in this proposed rule. Potentially affected entities may include, but are not limited to: Manufacturers, importers, or processors of one or both subject chemical substances (NAICS codes 325 and 324110), e.g., Chemical manufacturing and petroleum refineries. 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 applicability provisions in 40 CFR 721.5. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT . This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Persons who import any chemical substance governed by a final SNUR are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements and the corresponding regulations at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Those persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of this proposed rule on or after July 9, 2008 are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see 40 CFR 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D. B. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI* . Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for preparing your comments* . When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, **Federal Register** date and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. II. Background A. What Action is the Agency Taking? EPA is proposing significant new use rules (SNURs) under section 5(a)(2) of TSCA for two chemical substances which were the subject of premanufacture notices (PMNs). The two substances are dodecandioic acid, 1, 12-dihydrazide (CAS No. 4080-98-2; PMNs P-01-759 and P-05-555) and thiophene, 2,5-dibromo-3-hexyl- (CAS No. 116971-11-0; PMN P-07-283). These SNURs would require persons who intend to manufacture, import, or process either of these two substances for an activity designated as a significant new use to notify EPA at least 90 days before commencing that activity. In the **Federal Register** of September 19, 2007 (72 FR 53470) (FRL-8135-8), EPA issued direct final SNURs on these two substances in accordance with the procedures at 40 CFR 721.170(d)(4)(i)(A). EPA received notices of intent to submit adverse comments on these SNURs. Therefore, as required by 40 CFR 721.170(d)(4)(i)(B), on November 19, 2007 (72 FR 64951) (FRL-8340-8), EPA withdrew the direct final SNURs on these two substances and is now proposing these SNURs. The record for the direct final SNURs for these substances was established as docket EPA-HQ-OPPT-2006-0898. That record includes information considered by the Agency in developing the direct final rules and the notices of intent to submit adverse comments. The rationale for this proposed rule as well as requests for public comment on specific issues is included in Unit IV. B. What is the Agency's Authority for Taking this Action? Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in TSCA section 5(a)(2). Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice
(SNUN)to EPA at least 90 days before they manufacture, import, or process the chemical substance for that use (15 U.S.C. 2604(a)(1)(B)). As described in unit II.C., the general SNUR provisions are found at 40 CFR part 721, subpart A. C. Applicability of General Provisions General provisions for SNURs appear under 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the final rule. Provisions relating to user fees appear at 40 CFR part 700. According to 40 CFR 721.1(c), persons subject to these SNURs must comply with the same notice requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6, or 7 to control the significant new use activities described in the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the **Federal Register** its reasons for not taking action. Persons who export or intend to export a chemical substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b). The regulations that interpret TSCA section 12(b) appear at 40 CFR part 707, subpart D. Persons who import a chemical substance identified in a final SNUR are subject to the TSCA section 13 import certification requirements, codified at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Such persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy statement in support of the import certification appears at 40 CFR part 707, subpart B. III. Substances Subject to this Rule EPA is proposing to establish significant new use and recordkeeping requirements for two chemical substances under 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance: • PMN number. • Chemical name (generic name if the specific name is claimed as CBI). • CAS number (if assigned for non-confidential chemical identities). • Basis for the SNUR. • Toxicity concerns. • Tests recommended by EPA to provide sufficient information to evaluate the chemical substance (see Unit VI. for more information). • CFR citation assigned in the regulatory text section of this proposed rule. The specific activities designated as significant new uses are listed in 40 CFR part 721, subpart E. **PMN Numbers P-01-759 and P-05-555** *Chemical name:* Dodecandioic acid, 1, 12-dihydrazide. *CAS number:* 4080-98-2. *Basis for action:* The PMNs (submitted by two different chemical manufacturing companies) state that the generic (non-confidential) uses of the substance will be as a raw material for coating and sealants and as a curing agent, respectively. Based on the molecular structure of the PMN substance and test data on analogous substances, EPA believes the PMN substance may cause carcinogenicity, developmental toxicity, and irritation to mucous membranes. Also, based on test data on the PMN substance, it may cause dermal sensitization. As described in the companies' PMNs and accompanying Material Safety Data Sheets, workers will be warned that the substance may cause dermal sensitization and will wear gloves and National Institute for Occupational Safety and Health (NIOSH) approved respirators with an assigned protection factor
(APF)of 50 or greater. Based on this expectation that adequate hazard communication and personal protective equipment will be used, EPA believes significant worker exposure is unlikely. Further, consumer use is not expected. EPA has determined, however, that potential use of the substance without workers wearing gloves and a respirator, and without an appropriate hazard communication program, may cause serious human health effects. Respirators must provide a NIOSH APF of at least 50. The following NIOSH-approved respirators meet the minimum requirement for § 721.63(a)(4): Air-purifying, tight-fitting full-face respirator equipped with N100 (if oil aerosols absent), R100, or P100 filters; powered air-purifying respirator equipped with a tight-fitting full facepiece and High Efficiency Particulate Air
(HEPA)filters; supplied air respirator operated in pressure demand or continuous flow mode and equipped with a tight-fitting full facepiece. Because the substance is a dermal sensitizer and irritates mucous membranes, half-face respirators do not provide adequate protection. Based on this information, the PMN substance meets the concern criteria at § 721.170 (b)(1)(i)(C), (b)(3)(i), and (b)(3)(ii). *Recommended testing:* EPA has determined that the results of a 90-day oral toxicity test in rats (OPPTS 870.3100 test guideline) and a mammalian erythrocyte micronucleus test (OPPTS 870.5395 test guideline) would help characterize the human health effects of the PMN substance. *CFR citation:* 40 CFR 721.10057. **PMN Number P-07-283** *Chemical name:* Thiophene, 2,5-dibromo-3-hexyl-. *CAS number:* 116971-11-0. *Basis for action:* The PMN states that the substance will be used as a reactive intermediate monomer for use in manufacturing a p-type organic semiconductor polymer. The polymer will be used in printed organic electronics applications. Based on structure activity relationship analyses for thiophenes, EPA is concerned that toxicity to aquatic organisms may occur at concentrations above 1 part per billion
(ppb)of the PMN substance in surface waters. At the production volume stated for the company in the PMN, releases of the PMN substance are not expected to result in surface water concentrations above 1 ppb. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance, as described in the PMN, may present an unreasonable risk. EPA has determined, however, that potential increased production or importation volumes or other uses of the substance resulting in surface water concentrations above 1 ppb may cause significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(4)(ii). *Recommended testing:* EPA has determined that the results of a fish early-life stage toxicity test (OPPTS 850.1400 test guideline (public draft)); a daphnid chronic toxicity test (OPPTS 850.1300 test guideline (public draft)); and an algal toxicity test, tiers I and II (OPPTS 850.5400 test guideline (public draft)) would help characterize the environmental effects of the PMN substance. The fish and daphnid tests should use flow-through conditions and measured concentrations. *CFR citation:* 40 CFR 721.10088. IV. Objectives and Rationale of the Rule A. Rationale During review of the PMNs submitted for these two chemical substances, EPA determined that one or more of the criteria of concern established at 40 CFR 721.170 were met, as discussed in Unit III. 1. *Rationale for the proposed SNUR for dodecandioic acid, 1, 12-dihydrazide (CAS No. 4080-98-2)* . The hazard communication terms of the SNUR being proposed today for dodecandioic acid, 1, 12-dihydrazide (CAS No. 4080-98-2) differ from the terms in the direct final SNUR, based on submitted comments that clarified existing uses of the substance. The notice of intent to submit adverse comment states that hazard communication materials currently in use for this substance in the marketplace do not contain two of the health hazard statements included in the direct final SNUR. The two statements are, “this substance may cause cancer” and “this substance may cause developmental toxicity.” As EPA interprets its SNUR authority under section 5(a)(2) of TSCA, if an activity is already ongoing before EPA first publishes a **Federal Register** notice of intent to designate that activity as a significant new use, then EPA may not issue a SNUR designating that activity as a significant “new” use. Therefore, EPA is proposing a SNUR that would not designate as a “significant new use” the failure to identify cancer and developmental toxicity in workplace hazard communication materials accompanying this chemical substance (under 40 CFR 721.72). However, for the reasons described in this paragraph and in the direct final rule preamble, the Agency's concerns for these toxic endpoints remain. Therefore, the Agency encourages companies to voluntarily include these potential health concerns in their hazard communication materials for the substance. The workplace personal protective equipment requirements (under 40 CFR 721.63) and other requirements listed in the direct final rule would remain unchanged in today's proposed SNUR. The Agency requests comments on the approach being taken in the proposed SNUR for this substance. 2. *Rationale for the proposed SNUR for thiophene, 2,5-dibromo-3-hexyl- (CAS No. 116971-11-0)* . The Agency is requesting comments on the proposed SNUR for this substance as well as two alternative approaches. A discussion of the rationale behind each option and specific issues on which the Agency is requesting comment follows. EPA requests that commenters making specific recommendations include supporting documentation where appropriate. i. *Proposed SNUR - maximum surface water concentration of 1 ppb from manufacturing, processing, or use activities and annual company production limit of 500 kg* . The terms of the SNUR being proposed today for thiophene, 2,5-dibromo-3-hexyl- (CAS No. 116971-11-0) remain the same as in the direct final SNUR. See proposed § 721.10088 (a)(2)(i) and (a)(2)(ii). EPA is proposing to designate the surface water release and production volume limits as significant new uses for the reasons stated in Unit V., including concerns associated with potential changes in the extent to which these activities could increase the magnitude and duration of exposure of human beings or the environment to the chemical substance. Inclusion of a production volume limit gives the Agency an opportunity to review the substance again at a higher production volume. ii. *Alternative A -maximum surface water concentration of 1 ppb from manufacture, processing, or use activities up to an annual production volume of 500 kg, and no release to surface water at annual company production volumes higher than 500 kg* . This option was suggested in the notice of intent to submit adverse comment on the direct final SNUR for this substance. The commenter also stated that they recognize the Agency's concern for water releases of the substance. While this option would be protective of the aquatic environment, the Agency requests comment on whether industry compliance would be impractical or confusing. iii. *Alternative B - SNUR for no release to surface water* . If the substance is not currently being released to water during manufacturing, processing, or use activities, the Agency could consider finalizing a SNUR designating any release to water during those activities as a significant new use. This option would be sufficiently protective of the aquatic environment and is less complicated than Alternative A. To implement this option, EPA would need to be satisfied that there are no ongoing releases to water, taking into account 40 CFR 721.90 (a)(1), (b)(1), and (c)(1). EPA solicits comment on whether there are ongoing releases to water during manufacturing, processing, or use activities. B. Objectives EPA is proposing these SNURs for specific chemical substances which have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this proposed rule: • EPA would receive notice of any person's intent to manufacture, import, or process a listed chemical substance for the described significant new use before that activity begins. • EPA would have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing, importing, or processing a listed chemical substance for the described significant new use. • EPA would be able to regulate prospective manufacturers, importers, or processors of a listed chemical substance before the described significant new use of that chemical substance occurs, provided that regulation is warranted pursuant to TSCA sections 5(e), 5(f), 6, or 7. V. Significant New Use Determination Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors including: • The projected volume of manufacturing and processing of a chemical substance. • The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance. • The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance. • The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance. In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorizes EPA to consider any other relevant factors. To determine what would constitute a significant new use of the two chemical substances that are the subject of this proposed rule, EPA considered relevant information about the toxicity of the substances, likely human exposures and environmental releases associated with possible uses, and the four factors listed in section 5(a)(2) of TSCA. In these cases, EPA did not find that the use scenarios described in the three PMNs triggered the determinations set forth under section 5(e) of TSCA. EPA did, however, believe that certain changes from the use scenarios described in the PMNs could result in increased exposures, and constitute “significant new uses.” These so-called “Non-5(e) SNURs” (i.e., SNURs for chemicals that are not regulated by a section 5(e) Consent Order under § 721.160) are promulgated pursuant to 40 CFR 721.170. EPA has determined that every activity designated as a “significant new use” in all the non-5(e) SNURs issued under 40 CFR 721.170 satisfies the two requirements stipulated in § 721.170(c)(2), i.e., these significant new use activities, “(i) are different from those described in the premanufacture notice for the substance, including any amendments, deletions, and additions of activities to the premanufacture notice, and
(ii)may be accompanied by changes in exposure or release levels that are significant in relation to the health or environmental concerns identified” for the PMN substance. VI. Applicability of Rule to Uses Occurring Before Effective Date of the Final Rule To establish a significant “new” use, EPA must determine that the use is not ongoing. EPA solicits comments on whether any of the uses proposed as significant new uses are ongoing. As discussed in the **Federal Register** of April 24, 1990 (55 FR 17376), EPA has decided that the intent of section 5(a)(1)(B) of TSCA is best served by designating a use as a significant new use as of the date of publication of the proposed rule, rather than as of the effective date of the final rule. If uses begun after publication of the proposed rule were considered ongoing rather than new, it would be difficult for EPA to establish SNUR notice requirements, because a person could defeat the SNUR by initiating the significant new use before the rule became final, and then argue that the use was ongoing as of the effective date of the final rule. Thus, persons who begin commercial manufacture, import, or processing activities with the chemical substances that would be regulated as a “significant new use” through this proposed rule, must cease any such activity as of the effective date of the rule if and when finalized. To resume their activities, these persons would have to comply with all applicable SNUR notice requirements and wait until the notice review period, including all extensions, expires. EPA has promulgated provisions to allow persons to comply with this SNUR before the effective date. If a person were to meet the conditions of advance compliance under § 721.45(h), the person would be considered to have met the requirements of the final SNUR for those activities. VII. Test Data and Other Information EPA recognizes that TSCA section 5 does not require developing any particular test data before submission of a SNUN. Persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (15 U.S.C. 2604(d); 40 CFR 721.25 and 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. Unit III. lists recommended testing for the two chemical substances that are the subject of these proposed SNURs. Descriptions of tests are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. Many test guidelines are now available on the Internet at *http://www.epa.gov/opptsfrs/home/guidelin.htm* . The recommended tests may not be the only means of assessing the potential toxicity, exposure, and risks of the chemical substances regulated under this rule. However, submitting SNUNs without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests. SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following: • Human exposure and environmental release that may result from the significant new use of the chemical substances. • Potential benefits of the chemical substances. • Information on risks posed by the chemical substances compared to risks posed by potential substitutes. VIII. SNUN Submissions EPA recommends that submitters consult with the Agency prior to submitting a SNUN to discuss what data may be useful in evaluating a significant new use. Discussions with the Agency prior to notice submission can afford ample time to conduct any tests that might be helpful in evaluating risks posed by the substance. According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be mailed to the Environmental Protection Agency, OPPT Document Control Office (7407M), 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. Information must be submitted in the form and manner set forth in EPA Form No. 7710-25. This form is available from the Environmental Assistance Division (7408M), 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001 (see 40 CFR 721.25 and 720.40). Forms and information are also available electronically at *http://www.epa.gov/opptintr/newchems/pubs/pmnforms.htm* . IX. Economic Analysis EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers, importers, and processors of the chemical substances at the time of the direct final rule. The Agency's complete economic analysis is available in the public docket for the direct final rule (EPA-HQ-OPPT-2006-0898). The difference in hazard communication requirements in the direct final SNUR and this proposed rule (i.e., removal of the requirement for specific identification of cancer and developmental toxicity endpoints in workplace hazard communication materials) could slightly reduce estimated costs to regulated entities. The difference in a production volume trigger and type of release to water restriction in the direct final SNUR and this proposed rule will not impact the estimated costs to regulated entities. X. Statutory and Executive Order Reviews A. Executive Order 12866 Under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993), the Office of Management and Budget
(OMB)has determined that this proposed rule is not a “significant regulatory action” because it does not meet the criteria in section 3(f) of the Executive order. B. Paperwork Reduction Act According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., an Agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the **Federal Register** , are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable. The information collection requirements related to this action have already been approved by OMB pursuant to the PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per submission. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN. Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address. C. Regulatory Flexibility Act Pursuant to section 605(b) of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .), the Agency hereby certifies that promulgation of these SNURs would not have a significant adverse economic impact on a substantial number of small entities. The rationale supporting this conclusion is as follows. A SNUR applies to any person (including small or large entities) who intends to engage in any activity described in the proposed rule as a “significant new use.” By definition of the word “new,” and based on all information currently available to EPA, it appears that no small or large entities presently engage in such activity. Since a SNUR only requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN, no economic impact would even occur until someone decides to engage in those activities. Although some small entities may decide to conduct such activities in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of over 1,000 SNURs, the Agency receives on average only 10 notices per year. Of those SNUNs submitted, none appear to be from small entities in response to any SNUR. In addition, the estimated reporting cost for submission of a SNUN (see Unit IX.) are minimal regardless of the size of the firm. Therefore, EPA believes that the potential economic impacts of complying with these SNURs are not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published on June 2, 1997 (62 FR 29684) (FRL-5597-1), the Agency presented its general determination that SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration. D. Unfunded Mandates Reform Act Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government would be impacted by this rulemaking. As such, EPA has determined that this regulatory action would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any affect on small governments subject to the requirements of sections 202, 203, 204, or 205 of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). E. Executive Order 13132 This action would not have a substantial direct effect on 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, entitled *Federalism* (64 FR 43255, August 10, 1999). F. Executive Order 13175 This proposed rule would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This proposed rule would not significantly or uniquely affect the communities of Indian Tribal governments, nor would it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000), do not apply to this proposed rule. G. Executive Order 13045 This action is not subject to Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children. H. Executive Order 13211 This proposed rule is not subject to Executive Order 13211, entitled *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use. I. National Technology Transfer and Advancement Act In addition, since this action does not involve any technical standards, 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), does not apply to this action. J. Executive Order 12898 This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). K. Executive Order 12988 In issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988, entitled *Civil Justice Reform* (61 FR 4729, February 7, 1996). List of Subjects in 40 CFR Part 721 Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements. Dated: May 30, 2008. Charles M. Auer, Director, Office of Pollution Prevention and Toxics. Therefore, it is proposed that 40 CFR part 721 be amended as follows: PART 721—[AMENDED] 1. The authority citation for part 721 would continue to read as follows: Authority: 15 U.S.C. 2604, 2607, and 2625(c). 2. By adding new § 721.10057 to subpart E to read as follows: § 721.10057 Dodecanedioic acid, 1, 12-dihydrazide.
(a)*Chemical substance and significant new uses subject to reporting* .
(1)The chemical substance identified as dodecanedioic acid, 1, 12-dihydrazide (PMNs P-01-759 and P-05-555; CAS No. 4080-98-2) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2)The significant new uses are:
(i)*Protection in the workplace* . Requirements as specified in § 721.63 (a)(1), (a)(2)(i), (a)(3), (a)(4), (a)(5), (a)(6)(i), (a)(6)(ii), (b), and (c). Respirators must provide a National Institute for Occupational Safety and Health (NIOSH) assigned protection factor
(APF)of at least 50. The following NIOSH-approved respirators meet the minimum requirement for § 721.63(a)(4): Air-purifying, tight-fitting full-face respirator equipped with N100 (if oil aerosols absent), R100, or P100 filters; powered air-purifying respirator equipped with a tight-fitting full facepiece and High Efficiency Particulate Air
(HEPA)filters; supplied air respirator operated in pressure demand or continuous flow mode and equipped with a tight-fitting full facepiece. Because the substance is a dermal sensitizer and irritates mucous membranes, half-face respirators do not provide adequate protection.
(ii)*Hazard communication program* . Requirements as specified in § 721.72 (a), (b), (c), (d),
(e)(concentration set at 0.1 percent), (f), (g)(1)(i), and (g)(2)(i).
(b)*Specific requirements* . The provisions of subpart A of this part apply to this section except as modified by this paragraph.
(1)*Recordkeeping* . Recordkeeping requirements as specified in § 721.125 (a), (b), (c), (d), (e), (f), (g), and
(h)are applicable to manufacturers, importers, and processors of this substance.
(2)*Limitations or revocation of certain notification requirements* . The provisions of § 721.185 apply to this section. 3. By adding new § 721.10088 to subpart E to read as follows: § 721.10088 Thiophene, 2,5-dibromo-3-hexyl-.
(a)*Chemical substance and significant new uses subject to reporting* .
(1)The chemical substance identified as thiophene, 2,5-dibromo-3-hexyl- (PMN P-07-283; CAS No. 116971-11-0) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2)The significant new uses are:
(i)*Industrial, commercial, and consumer activities* . Requirements as specified in § 721.80(s) (500 kilograms).
(ii)*Release to water* . Requirements as specified in § 721.90 (a)(4), (b)(4), and (c)(4) (N=1).
(b)*Specific requirements* . The provisions of subpart A of this part apply to this section except as modified by this paragraph.
(1)*Recordkeeping* . Recordkeeping requirements as specified in § 721.125 (a), (b), (c), (i), and
(k)are applicable to manufacturers, importers, and processors of this substance.
(2)*Limitations or revocation of certain notification requirements* . The provisions of § 721.185 apply to this section. [FR Doc. E8-12862 Filed 6-6-08; 8:45 am] BILLING CODE 6560-50-S GENERAL SERVICES ADMINISTRATION 48 CFR Parts 533 and 552 [GSAR Case 2007-G501; Docket 2008-0007; Sequence 1] RIN 3090-AI49 General Services Acquisition Regulation; GSAR Case 2007-G501;Protests, Disputes, and Appeals AGENCY: Office of the Chief Acquisition Officer, General Services Administration (GSA). ACTION: Proposed rule. SUMMARY: The General Services Administration
(GSA)is proposing to amend the General Services Acquisition Regulation
(GSAR)to update language pertaining to protests, disputes, and appeals. This project is part of the GSAM Rewrite Project, in which all parts of the regulation are being reviewed and updated to include new statutes, legislation, and policies. DATES: Interested parties should submit written comments to the Regulatory Secretariat on or before August 8, 2008 to be considered in the formulation of a final rule. ADDRESSES: Submit comments identified by GSAR Case 2007-G501 by any of the following methods: • Regulations.gov: *http://www.regulations.gov* . Submit comments via the Federal eRulemaking portal by inputting “GSAR Case 2007-G501” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with GSAR Case 2007-G501. Follow the instructions provided to complete the “Public Comment and Submission Form”. Please include your name, company name (if any), and “GSAR Case 2007-G501” on your attached document. • Fax: 202-501-4067. • Mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW, Room 4041, ATTN: Laurieann Duarte, Washington, DC 20405. *Instructions* : Please submit comments only and cite GSAR Case 2007-G501 in all correspondence related to this case. All comments received will be posted without change to *http://www.regulations.gov* , including any personal and/or business confidential information provided. FOR FURTHER INFORMATION CONTACT: For clarification of content, contact Ms. Meredith Murphy at
(202)208-6925, or by e-mail at *meredith.murphy@gsa.gov* . For information pertaining to the status or publication schedules, contact the Regulatory Secretariat (VPR), Room 4041, GS Building, Washington, DC 20405,
(202)501-4755. Please cite GSAR Case 2007-G501. SUPPLEMENTARY INFORMATION: A. Background The General Services Administration
(GSA)proposes to amend the General Services Administration Acquisition Regulation
(GSAR)to update the text addressing protests, disputes, and appeals. This rule is a result of the General Services Administration Acquisition Manual
(GSAM)Rewrite initiative undertaken by GSA to revise the GSAM to maintain consistency with the FAR and implement streamlined and innovative acquisition procedures that contractors, offerors, and GSA contracting personnel can utilize when entering into and administering contractual relationships. The GSAM incorporates the General Services Administration Acquisition Regulation
(GSAR)as well as internal agency acquisition policy. GSA will rewrite each part of the GSAR and GSAM, and as each GSAR part is rewritten, will publish it in the **Federal Register** . This rule covers the rewrite of GSAR Part 533, Protests, Disputes, and Appeals. GSAR Part 533 includes two subparts. GSAR Subpart 533.1, Protests, included only the prescription for a GSA-unique clause, 552.233-70, Protests Filed Directly with the General Services Administration. However, GSA proposes to delete this clause in its entirety because it repeated much of the FAR clause, and the remaining information is available to contractors on the internet in GSAM Subpart 533.1. GSAR Subpart 533.2, Disputes and Appeals, has three sections, including the prescription for a utility disputes clause. Editorial changes were made to GSAR 533.211, Contracting officer’s decision, so as not to repeat the information that must be included, as prescribed in FAR 33.211, to clarify the GSA-unique requirements, and to recognize that the GSA Board of Contract Appeals’(GSBCA) duties are now vested in the Civilian Board of Contract Appeals (CSBA). No other changes were made to this subpart. In addition, the clause at GSAR 552.233-71, Disputes (Utility Contracts), and its prescription at GSAR 533.215, were deleted at the request of the GSA Public Buildings Service. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. B. Regulatory Flexibility Act The General Services Administration does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* , because this rule will only impact an offeror that is submitting a protest or has a dispute with GSA. Further, GSA is proposing only minor changes in the regulations and procedures for pursuing either action. For these reasons, it is expected that the number of entities impacted by this rule will be minimal. An Initial Regulatory Flexibility Analysis has, therefore, not been performed. We invite comments from small businesses and other interested parties. GSA will consider comments from small entities concerning the affected GSAR Parts 533 and 552 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, *et seq.* (GSAR case 2007-G501), in all correspondence. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the proposed changes to the GSAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* List of Subjects in 48 CFR Parts 533 and 552 Government procurement. Dated: May 30, 2008 David A. Drabkin, Acting Chief Acquisition Officer & Senior Procurement Executive Office of the Chief Acquisition Officer. Therefore, GSA proposes to amend 48 CFR parts 533 and 552 as set forth below: 1. The authority citation for 48 CFR parts 533 and 552 continues to read as follows: Authority: 40 U.S.C. 486(c). PART 533—PROTESTS, DISPUTES, AND APPEALS Subpart 533.1 [Removed] 2. Remove subpart 533.1, Protests. 3. Add section 533.209 to Subpart 533.2 to read as follows: 533.209 Suspected fraudulent claims. In GSA, the agency official responsible for investigating fraud is the Office of Inspector General. 4. Revise section 533.211 to read as follows: 533.211 Contracting officer’s decision. The contracting officer’s written decision must include the paragraph at FAR 33.211(a)(4)(v). The contracting officer shall state in the decision that a contractor’s notice of appeal to the Civilian Board of Contract Appeals
(CBCA)should include a copy of the contracting officer’s decision. 533.215 [Removed] 5. Remove section 533.215. PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 552.233-70 and 552.233-71 [Removed] 6. Remove sections 552.233-70 and 552.233-71. [FR Doc. E8-12572 Filed 6-6-08; 8:45 am] BILLING CODE 6820-61-S DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 260 [Docket No. FRA-2008-0061] RIN 2130-AB91 Railroad Rehabilitation and Improvement Financing Program AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of Proposed Rulemaking (NPRM); request for comments. SUMMARY: The Transportation Equity Act for the 21st Century of 1998 (TEA-21) established the Rail Rehabilitation and Improvement Financing
(RRIF)Program. The program authorizes the Secretary of Transportation to issue direct loans and loan guarantees to state and local governments, railroads, interstate compacts, and other specified organizations to finance the development of railroad infrastructure. The Safe, Accountable, Flexible and Efficient Transportation Equity Act of 2005: a Legacy for Users (SAFETEA-LU) amended and expanded the program. SAFETEA-LU increased the principal amount of the RRIF program up to $35.0 billion, and of that amount, $7.0 billion is reserved for freight railroads other than Class I carriers. This NPRM proposes amending eligibility and application form and content criteria to ensure the long-term sustainability of the program, promote competition in the railroad industry, and reduce the risk of default for applicants and the Government. DATES: Comments must be received on or before August 8, 2008. ADDRESSES: Comments should reference Docket No. FRA-2008-0061 and may be submitted the following ways: • *E-Gov Web site: http://www.regulations.gov* . This Web site allows the public to enter comments on any **Federal Register** notice issued by any agency. Follow the instructions for submitting comments. • *Fax:* 1-202-493-2251. • *Mail:* DOT Docket Management System: U.S. Department of Transportation, Docket Operations, M-30, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. • *Hand Delivery:* DOT Docket Management System; West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. *Instructions:* You should identify the docket ID, FRA-2008-0061, at the beginning of your comments. If you submit your comments by mail, submit two copies. To receive confirmation that FRA received your comments, include a self-addressed stamped postcard. Internet users may submit comments at *http://www.regulations.gov* . *Note:* Comments are posted without changes or edits to *http://www.regulations.gov* , including any personal information provided. Please see the Privacy Act discussion in the Supplementary Information section of this NPRM. FOR FURTHER INFORMATION CONTACT: John Kern, Attorney-Advisor, Office of the Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590 ( *John.Kern@dot.gov* or 202-493-6044). SUPPLEMENTARY INFORMATION: Electronic Access and Filing You may submit or retrieve comments online through *http://www.regulations.gov* , which is available 24 hours each day, 365 days each year. Electronic submission and retrieval help and guidelines are available under the help section of the Web site. An electronic copy of this document may also be downloaded from Office of the Federal Register's home page at *http://www.archives.gov/federal_register* and the Government Printing Office's Web page at *http://www.gpoaccess.gov* . Background Section 7203 of TEA-21, Public Law 105-178 (June 9, 1998), established the Railroad Rehabilitation and Improvement Financing
(RRIF)Program. This program revised and replaced the pre-existing railroad financing program established under Title V of the Railroad Revitalization and Regulatory Reform Act of 1976. In 2000, the FRA promulgated a rule implementing the RRIF program (65 FR 41838, July 6, 2000) found in 49 CFR Part 260 (“RRIF Rule”). In 2005, SAFETEA-LU further amended and expanded the RRIF program, establishing additional priorities, increasing the loan principal, and eliminating any requirement for collateral under the program. The RRIF program authorizes the Secretary to provide direct loans and loan guarantees to state and local governments, interstate compacts consented to by Congress, government-sponsored authorities and corporations, railroads, joint ventures that include one railroad, and limited option rail freight shippers that own or operate a plant or other facility that is served by no more than a single railroad. SAFETEA-LU did not amend the types of eligible projects, so they remain the same as under TEA-21:
(1)Acquisition, improvement, or rehabilitation of intermodal or rail equipment or facilities (including tracks, components of tracks, bridges, yards, buildings, and shops);
(2)refinancing outstanding debt incurred for these purposes; or
(3)development or establishment of new intermodal or railroad facilities. Direct loans and loan guarantees issued under this section cannot be used for railroad operating expenses. SAFETEA-LU increased the authorized, aggregate unpaid principal amount of obligations under direct loans and loan guarantees from $3.5 billion under TEA-21 to $35.0 billion. Of this amount, SAFETEA-LU increased the amount available solely for projects primarily benefiting freight railroads other than Class I carriers to $7.0 billion. Furthermore, SAFETEA-LU prescribed that the Secretary shall not establish any limit on the proportion of the unused amount authorized that may be used for one loan or loan guarantee. The Secretary has delegated her authority under the RRIF program to the FRA Administrator. TEA-21 required FRA to give priority consideration to projects that:
(1)Enhance public safety;
(2)enhance the environment;
(3)promote economic development;
(4)enable United States companies to be more competitive in international markets;
(5)are endorsed by plans prepared under 23 U.S.C. 135 by the state or states in which they are located; or
(6)preserve or enhance rail or intermodal service to small communities or rural areas. SAFETEA-LU amended these priority considerations to include projects that:
(7)Enhance service and capacity in the national rail system or
(8)would materially alleviate rail capacity problems which degrade the provision of service to shippers and would fulfill a need in the national transportation system. Pursuant to the Federal Credit Reform Act of 1990 (2 U.S.C. 661 *et seq* .) and OMB Circular No. A-129, Policies for Federal Credit Programs and Non-Tax Receivables, the Federal government must manage the RRIF program to ensure that the goals of the program are met while minimizing the risk of borrower default. The Federal government is responsible for making estimates of the costs of direct loan and loan guarantees. The goal of the RRIF program is to address a perceived gap between the railroad industry's financial needs and the lack of private financial sources willing to provide the necessary long-term, low-capital loans. Additionally, a goal of the program shall be to assist small railroads that lack access to capital and financing for making capital improvements in support of the priority considerations listed in section 260.7. The program shall also strive to encourage the private sector to invest in railroads and to provide financing for the types of projects underwritten by the RRIF program. The proposed amendments will further these goals and priorities. The NPRM proposes to amend the RRIF rule to incorporate a number of program features which FRA believes will improve the administration and effectiveness of the RRIF program. FRA's beliefs are based on its experience gained while administering the RRIF program and its knowledge of the railroad industry, as well as congressional findings and General Accountability Office recommendations, which will be discussed later in the preamble. The NPRM proposes substantive amendments to the existing rule that will ensure the long-term sustainability of the program, promote competition in the railroad industry, and reduce the risk of default for applicants and the Government. Section-by-Section Discussion of the Proposed Changes Section 260.21 Eligibility The NPRM proposes to establish an equity contribution requirement for applicants who are larger than small entities. The FRA believes that by requiring borrowers to invest a certain percentage of non-RRIF funds to finance a project, this will ensure that borrowers are themselves financially invested in the project. Equity contribution requirements are a common practice among financial lenders. The FRA's intent is to reduce the risk of borrower default, and subsequent Government loss, by having an applicant contribute to the assets financed by the loan. The NPRM proposes that an applicant be required to have and maintain a minimum equity contribution of the total costs of the project being financed by the federal assistance. Furthermore, the FRA proposes to establish a required equity contribution ratio that is a function of the creditworthiness of the applicant, the degree of leverage in the project represented by the amount of federal assistance requested, the size of the loan as compared with the overall financial resources of the applicant, and whether the applicant is requesting a direct loan or loan guarantee. Finally, the FRA proposes that direct loan and loan guarantee applications for less than $20 million will be exempt from the equity contribution requirement. Applicants with a low credit rating, which the FRA proposes to define as below “investment grade,” represent a riskier investment for the federal government. Applicants requesting a large amount of financial assistance as compared with the overall financial resources of the applicant will also represent a greater risk to the federal government, since more of the federal government's resources will be dependent on the outcome of the project. Additionally, the Department believes applicants whose debt (including the federal assistance applied for) to equity ratio exceeds 1.0 also pose an increased risk to the federal government since borrowers whose debt exceeds equity generally have an increased risk of default. Finally, direct loans create more risk to the federal government than loan guarantees do, since loan guarantees have the added protection of having an independent financial lender assessing project risk. In cases where applicants and projects create an increased risk to the federal government, applicants will be required to have invested a greater proportion of the total project costs to offset the increased risk to the government. Direct Loan Applicants The NPRM proposes that all direct loan applicants with either a credit rating of less than investment grade or whose debt (including the federal financial assistance applied for) to equity ratio exceeds 1.0 will be required to have and always maintain an equity contribution of at least 20 percent of total project costs for direct loan applications for less than $250 million and an equity contribution of at least 30 percent of total project costs for direct loan applications exceeding $250 million. The NPRM proposes that all direct loan applicants with a credit rating of no less than investment grade and whose debt, including the federal financial assistance applied for, to equity ratio does not exceed 1.0 will be required to have and to always maintain an equity contribution of at least 10 percent of total project costs for direct loan applications for less than $250 million and an equity contribution of at least 15 percent of total project costs for direct loan applications exceeding $250 million. Loan Guarantee Applicants The NPRM proposes that all loan guarantee applicants with either a credit rating of less than investment grade or whose debt, including the federal financial assistance applied for, to equity ratio exceeds 1.0 will be required to have and always maintain an equity contribution of at least 20 percent of total project costs for loan guarantee applications for less than $250 million and an equity contribution of at least 25 percent of total project costs for loan guarantee applications exceeding $250 million. The equity contribution required for applications of direct loans and loan guarantees of less than $250 million is the same because FRA believes that the greater risk presented by direct loans is only necessarily addressed in this program in the context of very large direct loan amounts. Additionally, the type of financial assistance requested is one of many factors that the FRA used to determine the appropriate level of equity contribution for each financial assistance amount category. The NPRM proposes that all loan guarantee applicants with a credit rating of no less than investment grade and whose debt, including the federal financial assistance applied for, to equity ratio does not exceed 1.0 will be required to have and to always maintain an equity contribution of at least 10 percent of total project costs for loan guarantee applications for less than $250 million and an equity contribution of at least 12.5 percent of total project costs for loan guarantee applications exceeding $250 million. The FRA requests comments on the equity contribution requirement and the amounts proposed. Finally, the NPRM proposes a limitation on the cumulative outstanding balance to a single borrower. The SAFETEA-LU amendments to RRIF state that the Secretary shall not establish “any limit on the proportion of the unused amount authorized under this subsection that may be used for 1 loan or loan guarantee.” However, FRA believes that placing a limit on the cumulative amount of direct loans and loan guarantees to any one borrower is within the FRA's authority since the proposed limit is an absolute limit and not based on a proportion of unused funds. 45 U.S.C. 822(d). As Congress could have chosen instead to explicitly prohibit all limitations, regardless of whether or not the limitation is based on the proportion of unused funds, FRA interprets the language as written to indicate that Congress did not intend to prohibit all limitations but only limitations based on the proportion of the unused amount authorized. In an October 2006 report, the GAO recommended that the Department “consider strategies to sustain the role of competitive market forces by creating a level playing field for all freight modes.” 1 The GAO report found that over the past 30 years, the railroad industry has become more concentrated. The number of Class I railroad systems decreased from 30 railroads in 1976 to 7 railroads in operation today. Of those, four railroads account for over 89% of the industry's revenues. 1 GAO, *Freight Railroads: Industry Health Has Improved, but Concerns about Competition and Capacity Should Be Addressed,* GAO-07-94, October 2006. FRA believes a sufficiently large direct loan or loan guarantee to one borrower could potentially further increase concentration in the railroad industry. A sufficiently large direct loan or loan guarantee to one railroad may have the potential to allow it to obtain a preferential standing in the marketplace over its competitors. The FRA believes that the RRIF program can be an effective means of updating and improving railroad infrastructure to meet modern needs. Congress also established that it is a priority of the program to focus on providing capital to smaller railroads by requiring that twenty percent of the program's total funding be set aside for these smaller railroads. Therefore, the FRA believes that limiting the cumulative amount that any one applicant may borrow is proper federal direct loan and loan guarantee policy and would be in keeping with Congressional intent to ensure that a few large projects do not dominate the entire funding for the program. In order to ensure that the direct loans and loan guarantees are spread evenly throughout the railroad industry, the NPRM proposes limiting the amount of any cumulative outstanding balance to a single borrower. The NPRM proposes $500 million as an appropriate limit for any cumulative loan guarantee and direct loan for any single borrower and seeks comment on the suitability of this figure. In particular, commenters who believe this figure is insufficient for their project needs should comment on whether any greater amount would be more suitable. Section 260.23 Form and Content of Application Generally First, if the amount of financial assistance requested exceeds a defined threshold, the NPRM proposes adding a requirement for applicants to obtain a credit rating or assessment that takes into account the proposed project. This will result in better informed decisions by the government and ensure that the credit risk to the Government is minimized for the largest direct loan and loan guarantee requests. The NPRM proposes a threshold of $250 million as an appropriate amount and invites comments on the suitability of this figure. Second, the NPRM proposes adding a requirement that applicants submit electronic copies of their audited financial statements. This requirement will reduce application review costs and credit risk for the Government and ensure more efficient processing of loan applications. As this requirement may be overly burdensome on small railroad operations, the NPRM proposes excluding applicants with annual revenues of less than $20 million from this requirement, as well as applications for direct loans or loan guarantees for less than $20 million. Pursuant to its authority under the Small Business Act to define “small entities,” FRA published a final statement of agency policy that formally establishes “small entities” as railroads that meet the line-haulage revenue requirements of a Class III railroad. * See* 68 FR 24891 (May 9, 2003), as codified at part 209, appendix C of this chapter. The $20 million limit (adjusted annually for inflation) is based on the Surface Transportation Board's threshold of a Class III railroad carrier, which is adjusted by applying the railroad revenue deflator adjustment (49 CFR parts 1201). The NPRM proposes to use this definition for this rulemaking. Third, the NPRM proposes adding a requirement for applicants to identify and quantify the public benefit to be attained by the financial assistance. A GAO report from 2003 discussing the financing limitations of freight transportation recommended the DOT promote the use of benefit analyses, including external benefits. 2 The report found that by evaluating the benefits of competing alternatives, applicants would have to apply systematic analytical methods as part of their investment decision-making process, leading to a better understanding of the tradeoffs among competing alternative solutions. Additionally, by determining clear and tangible benefits, applicants would be better able to garner support for projects from private firms. The proposed rule will reduce the credit risk to the Government by encouraging participation from private financial sources, reduce application review costs, and improve government decision-making through better information. Furthermore, the NPRM proposes giving priority consideration to applications that have the highest benefit to loan value in order to make economically efficient use of limited government resources and to further reduce the risk to the Government of default. 2 GAO, *Freight Transportation: Strategies Needed to Address Planning and Financing Limitations,* GAO-04-165, December 2003. Rulemaking Analyses and Notices Executive Order 12866 and U.S. DOT Regulatory Policies and Procedures This proposed rule has been evaluated in accordance with existing policies and procedures, and determined to be significant under both Executive Order 12866 and DOT policies and procedures (44 FR 11034; Feb. 26, 1979). We have prepared and placed in the docket a regulatory evaluation addressing the economic impact of this proposed rule. FRA invites comments on this regulatory evaluation. This regulation will affect only those entities that voluntarily elect to apply for a direct loan or loan guarantee and those who receive a direct loan or loan guarantee under the program. It will not impose any direct, involuntary, or un-reimbursed costs on those entities not applying for the program. The only costs imposed on the applicants are the costs associated with completing an application. The costs associated with the proposed rule would also not differ materially from the current applications costs. The proposed rule codifies and regularizes many requirements already in effect. Although we have not provided a detailed cost of the application, many of these costs would be incurred with or without the rule. FRA specifically solicits comment on the total and incremental application costs of this proposed rule. FRA has also concluded that the railroad rehabilitation and improvement loan program could generate both direct and indirect benefits. By codifying existing application review practices, the proposed rule will result in a more efficient and consistent use of government resources. Additionally, the proposed rule will provide for greater governmental transparency in codifying how applications will be reviewed. Furthermore, applicants will have the benefit of knowing their applications contain all the information necessary for review. The regulatory evaluation contains a more detailed discussion of the costs and benefits of the proposed rule. This rule is not anticipated to adversely affect, in a material way, any sector of the economy. This rulemaking sets forth criteria for project applications in the RRIF program, which will result in only minimal additional cost to program applicants. This rule would also not create a serious inconsistency with any other agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (Pub. L. 96-354, 5 U.S.C. 601-612) requires a review of rules to assess their impact on small entities. FRA does not expect the proposed rule to have a significant economic impact on a substantial number of small entities. For this proposed rule, the relevant definition of small entities is based on the applicant's annual revenue. The Small Business Administration
(SBA)has provided FRA with the authority to establish a definition for small entities. FRA has published a final policy that formally establishes small entities as railroads that meet the line haulage revenue requirements of a Class III railroad, which is currently annual operating revenues of $20 million or less. The $20 million limit is based on the Surface Transportation Board's threshold of a Class III railroad carrier. FRA has not conducted a regulatory flexibility assessment of this proposed rule's impact on small entities. Small entities are largely exempt from the new application and equity contribution requirements in order to avoid a scenario where additional costs imposed could have significant economic impact on a substantial number of small entities. Additionally, FRA notes that this is a voluntary loan program, and the proposed rule will not have any effect on small entities that do not apply for direct loans or loan guarantees. FRA invites comment on the economic effect of the proposed rule on small entities. However, FRA believes the proposed rule will benefit small entities by providing them with greater access to capital and capital markets. FRA has, therefore, concluded that there are no substantial economic impacts for small entities of government, business, or other organizations. FRA requests public comments that will clarify what the impacts will be for the affected small entities. FRA especially encourages political subdivisions that may be considered to be small entities to participate in the comment process and submit written comments to the docket. Unfunded Mandates Reform Act of 1995 Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. This loan program is not an “unfunded mandate.” This NPRM will not result in the expenditure by state, local, or tribal governments, in the aggregate, of $132,000,000 (adjusted annually for inflation) or more in any one year, and thus preparation of such a statement is not required. Executive Order 13132 (Federalism) The FRA has analyzed this NPRM in accordance with the principles and criteria contained in Executive Order 13132, issued on August 4, 1999, which directs Federal agencies to exercise great care in establishing policies that have federalism implications. *See* 64 FR 42355. This NPRM will not have a substantial effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among various levels of government. This NPRM will not have federalism implications that impose any direct compliance costs on state and local governments. There will be minor costs associated with the submission of applications, but they are discretionary and will only be incurred should a state or local government wish to apply for funding. Otherwise, this NPRM directs how Federal funds will go to the states, and thus, there are no federalism implications. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) addresses the collection of information by the Federal government from individuals, small businesses and state and local governments and seeks to minimize the burdens such information collection requirements might impose. A collection of information includes providing answers to identical questions posed to, or identical reporting or record-keeping requirements imposed on ten or more persons, other than agencies, instrumentalities, or employees of the United States. In accordance with the requirements of the Paperwork Reduction Act, agencies may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget
(OMB)control number. FRA is requesting comment on a proposed information collection. FRA is also giving notice that the proposed collection of information has been submitted to OMB for review and approval. Section 260.23 of the NPRM contains additional information requirements that would apply to railroads, states or political subdivisions of states that file applications for Federal funding for railroad rehabilitation and improvement projects. This NPRM proposes to include requirements for applicants for loans and loan guarantees to provide certain information with their application in order to assess their financial health. Specifically, in Sections 260.23(4)(p)-(r), FRA proposes to require: Credit ratings or assessments for loan and guarantee applications for more than $250 million; electronic copies of audited financial statements to be submitted with applications from other than small entities for loans or guarantees of more than $20 million; and, that applicants must identify and quantify the public benefit that would accrue from the completion of the proposed project. FRA believes that any burden on applicants from formally incorporating these proposed requirements would be negligible because there are exceptions made for small loan and guarantee amounts as well as for small entities in general. For all other scenarios, the documentation requested would be required for any sort of financing that an applicant would seek, be it public or private, in order to assess the risk of granting financing. Pursuant to 44 U.S.C. 3506(c)(2)(B), the FRA solicits comments concerning: Whether these information collection requirements are necessary for FRA to properly perform its functions, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collecting information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. Privacy Act Anyone is able to search the electronic form of all comments received into any of DOT's 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 DOT's complete Privacy Act Statement published in the **Federal Register** on April 11, 2000 (Volume 65, Number 70, Pages 19477-78). National Environmental Policy Act The FRA has evaluated this regulation in accordance with its procedures for ensuring full consideration of the potential environmental impacts of FRA actions, as required by the National Environmental Policy Act (42 U.S.C. 4321 *et seq.* )
(NEPA)and related directives ( *see* FRA Policy Statement on Procedures for Considering Environmental Impacts, 64 FR 28545). FRA has concluded that the issuance of this NPRM, which proposes to amend regulations governing the provisions of loan guarantees and direct loans for railroad rehabilitation and improvement projects, does not have a potential impact on the environment and does not constitute a major Federal action requiring an environmental assessment or environmental impact statement. Executive Order 13211 (Energy Effects) Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” See 66 FR 28355 (May 22, 2001). Under the Executive Order a “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and
(ii)is likely to have a significant adverse effect on the supply, distribution, or use of energy; or
(2)that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. The FRA has evaluated this NPRM in accordance with Executive Order 13211. The FRA has determined that this NPRM is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this NPRM is not a “significant energy action” within the meaning of the Executive Order. List of Subjects in 49 CFR Part 260 Loan programs—Transportation; Railroads. The Proposed Rule For the reasons set forth in the preamble, and under the authority of 45 U.S.C. 822, FRA proposes to amend Part 260 of chapter II, subtitle B of title 49, Code of Federal Regulations, as set forth below: PART 260—[AMENDED] 1. The authority citation for part 260 continues to read as follows: Authority: 45 U.S.C. 821, 822, 823; 49 CFR 1.49. 2. Revise section 260.21 to read as follows: § 260.21 Eligibility.
(a)The Administrator may make a direct loan to an Applicant, or guarantee the payment of the principal balance and any interest of an obligation of an Applicant prior to, on, or after the date of execution or the date of disbursement of such obligation, if the proceeds of such direct loan or obligation shall be, or have been, used by the Applicant for the eligible purposes listed in § 260.5(a)(1), (2), and (3).
(b)Except for railroads that are small entities as provided in part 209, appendix C of this chapter and are seeking loans not in excess of $20 million, an Applicant applying for financial assistance must make an equity contribution to the costs of the project being financed, in part, by the federal assistance, based on the creditworthiness of the Applicant and the degree of leverage in the project represented by the federal assistance.
(c)An Applicant for a direct loan that is greater than $20 million but less than $250 million shall have and always maintain an equity contribution of at least 20 percent of total project costs. An Applicant for a direct loan that is greater than $250 million shall have and always maintain an equity contribution of at least 30 percent of total project costs.
(d)An Applicant for a loan guarantee that is greater than $20 million but less than $250 million shall have and always maintain an equity contribution of at least 20 percent of total project costs. An Applicant for a loan guarantee that is greater than $250 million shall have and always maintain an equity contribution of at least 25 percent of total project costs.
(e)An Applicant for a direct loan or loan guarantee with a credit rating of no less than investment grade and whose debt to equity ratio that does not exceed 1.0, shall be required to have and always maintain an equity contribution of half of the amounts prescribed in paragraphs
(c)or (d), respectively.
(f)The cumulative outstanding balance of loans and loan guarantees to a single borrower shall not exceed $500 million. 3. Section 260.23 is amended by adding new paragraphs (p), (q), and
(r)to read as follows: § 260.23 Form and content of application generally.
(p)A credit rating or assessment if the application for financial assistance is in excess of $250 million.
(q)Electronic copies of their audited financial statements, unless the Applicant has revenues of less than $20 million or the application for financial assistance is less than $20 million.
(r)Identification and quantification of the public benefit to be obtained by the financial assistance requested, including, but not limited to, the priorities listed in 49 U.S.C. 822(c). Priority consideration will be given to those applications that have the highest benefit to loan value, consistent with the provisions of 49 U.S.C. 822. Issued in Washington, DC on June 3, 2008. Joseph H. Boardman, Administrator. [FR Doc. E8-12811 Filed 6-6-08; 8:45 am] BILLING CODE 4910-06-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 383, 384, and 385 [Docket No. FMCSA-2007-27659] RIN 2126-AB02 Commercial Driver's License Testing and Commercial Learner's Permit Standards; Extension of Comment Period AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Proposed rule; extension of comment period. SUMMARY: In response to several requests, the Federal Motor Carrier Safety Administration (FMCSA) extends until July 9, 2008, the comment period for the notice of proposed rulemaking
(NPRM)that was published on April 9, 2008. DATES: Please submit comments regarding the NPRM to the docket by July 9, 2008. ADDRESSES: Comments must be identified by Docket ID Number FMCSA-2007-27659, and submitted by one of the following methods: • *Electronically:* Through the Federal Docket Management System (FDMS), at *http://www.regulations.gov* ; and follow the instructions for submitting comments. • *Mail/Courier:* U.S. Department of Transportation, Docket Management Facility, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. • *Fax:*
(202)493-2251. • *Docket:* For access to the docket to read comments received and background material, go to the Federal Docket Management System
(FDMS)at *http://www.regulations.gov* , and search for docket ID Number FMCSA-2007-27659. Comments may also be inspected at the U.S. Department of Transportation, Docket Management Facility, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. • *Privacy Act:* Regardless of the method used for submitting comments, all comments or material will be posted without change to the FDMS, including personal information. Anyone can search the electronic form of all of our dockets in FDMS by the name of the individual submitting the document (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement published in the **Federal Register** on April 11, 2000 (65 FR 19476) or you may visit *http://DocketsInfo.dot.gov* . FOR FURTHER INFORMATION CONTACT: Mr. Robert Redmond, Office of Safety Programs, Commercial Driver's License Division, telephone
(202)366-5014 or e-mail *robert.redmond@dot.gov* . Office hours are from 8 a.m. to 4:30 p.m. SUPPLEMENTARY INFORMATION: On April 9, 2008 (73 FR 19282), FMCSA published a notice of proposed rulemaking
(NPRM)in the **Federal Register** concerning proposed requirements related to commercial driver's license testing and commercial learner's permit standards. We provided the public with a 60-day comment period that expires on June 9, 2008. Several commenters have submitted requests for an extension of 30 days beyond June 9, which are in the docket. Accordingly, FMCSA extends the comment period for an additional 30 days, which now expires on July 9, 2008. Issued on: June 4, 2008. John H. Hill, Administrator. [FR Doc. E8-12876 Filed 6-6-08; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 224 [Docket No. 080320453-8705-01] RIN 0648-XG60 Endangered and Threatened Species; Proposed Rule to Remove the Caribbean Monk Seal from the Federal List of Endangered and Threatened Wildlife AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce. ACTION: Proposed rule. SUMMARY: We, the National Marine Fisheries Service (NMFS), have reviewed the status of the Caribbean monk seal ( *Monachus tropicalis* ) and conclude that the species is extinct. As a result, based on the best available information, we propose to delist the Caribbean monk seal under the Endangered Species Act (ESA). DATES: Comments on this proposed rule must be received by 5 p.m., Eastern Time, on August 8, 2008. Requests for public hearing must be made in writing and received by July 24, 2008. ADDRESSES: You may submit comments, identified by the Regulation Identifier Number
(RIN)0648-XG60, by any of the following methods: Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal: *http://www.regulations.gov* . Mail: Assistant Regional Administrator, Protected Resources Division, NMFS, Southeast Regional Office, 263 13th Ave. South, St. Petersburg, FL 33701. Facsimile (fax): 727-824-5309. Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. The proposed rule and status review are also available electronically at the NMFS website at *http://sero.nmfs.noaa.gov/pr/protres.htm* . FOR FURTHER INFORMATION CONTACT: Kyle Baker, NMFS, Southeast Regional Office at the address above, at 727-824-5312; or Marta Nammack, NMFS, Office of Protected Resources at 301-713-1401. Reference materials regarding these determinations are available upon request or on the Internet at *http://sero.nmfs.noaa.gov* . SUPPLEMENTARY INFORMATION: Background Under the ESA, a list of endangered and threatened wildlife and plant species must be maintained. NMFS lists threatened and endangered species under its jurisdiction in 50 CFR parts 223 and 224. The U.S. Fish and Wildlife Service (USFWS) maintains the official lists of threatened and endangered species, which are published at 50 CFR 17.11 (for animals) and 17.12 (for plants). NMFS and USFWS regulations published at 50 CFR, part 424, specify the procedures and requirements for adding or removing species from the list of endangered and threatened species. We are additionally required by ESA section 4(c)(2) and 50 CFR 424.12 to review each species on the list every 5 years (“5-year review”) to determine whether a species' classification on the list of threatened or endangered species is accurate. We evaluate whether the species continues to meet the definition of a threatened or endangered species, and we evaluate the five factors under ESA section 4(a)(1) to specify the ongoing reasons for the species' status:
(1)The present or threatened destruction, modification or curtailment of its habitat or range;
(2)overutilization for commercial, recreational, scientific, or educational purposes;
(3)disease or predation;
(4)the inadequacy of existing regulatory mechanisms; and
(5)other natural or manmade factors affecting its continued existence. A species may be delisted pursuant to section 424.11(d) if the best scientific and commercial data available substantiate that the species is neither endangered nor threatened for one or more of the following reasons:
(1)the species is considered extinct;
(2)the species is considered to be recovered; and/or
(3)the original data available when the species was listed, or the interpretation of such data, was in error. We initiated a 5-year review for the Caribbean monk seal on November 29, 2006 (71 FR 39327), to ensure that the listing classification of the species endangered is accurate. We completed the 5-year review on March 7, 2008. The 5-year review synthesized the best available scientific and commercial data on the status of the species and concluded that the Caribbean monk seal is extinct. Therefore, we propose to delist the Caribbean monk seal. Below, we present a summary of the data on which this proposal is based, including a review of the taxonomy, biology, life history, and historic distribution of the Caribbean monk seal; previous statutory and regulatory actions associated with this species; and an analysis of the best available information on the Caribbean monk seals' status. Taxonomic Classification and Phylogeny The Caribbean monk seal, also known as the Caribbean seal, the West Indian seal, and the West Indian monk seal, was described from the scientific literature in 1849 from a specimen taken in Jamaica (Gray, 1849). Early references to this species referred to these animals as sea wolves, hair seals, or simply seals. Although the species had several common names, it is taxonomically described according to the following: Kingdom: Animalia Phylum: Chordata Class: Mammalia Subclass: Eutheria Order: Carnivora Suborder: Pinnipedia Family: Phocidae Subfamily Monachinae Genus: *Monachus* Species: *tropicalis* The genus Monachus includes 3 allopatric species: *M. tropicalis* (Caribbean monk seals), *M. schauinslandi* (Hawaiian monk seals), and *M. monachus* (Mediterranean monk seals). A thorough description of the Caribbean monk seal was completed by Adam (2004). Caribbean monk seals are more closely related to Mediterranean monk seals than to Hawaiian monk seals (Wyss, 1988). However, the phylogenetic relationship among species of monk seals remains in dispute (Lavigne, 1998). No genetic studies of Caribbean monk seals have been conducted. Biology The Caribbean monk seal had a typical seal-like appearance, with a well-developed blubber layer, flipper-like limbs, a short tail, and a smooth body contour. The head was large and prominent, its eyes were large and light reddish-brown in color (Ward, 1887), and external pinnae were absent. Pups were born black in color and remained that way for about 1 year (Allen, 1887a). Adult pelage was variably dark dorsally (brown to black) and graded into a lighter yellowish-white countershade ventrally. Ventral fur ranged from pale yellow to yellowish-gray or yellowish-brown and was sometimes mottled with darker patches. The front and sides of the muzzle and the edge of the full and fleshy lips were yellowish-white. Caribbean monk seals were sexually dimorphic females were smaller than males (Allen, 1887b). However, the size difference was slight and could not be used to distinguish between the sexes. The two sexes were also alike in color and form (Allen, 1887b). Females had 2 pairs of mammae (Ward, 1887). Measurements of adults of both sexes generally ranged from 2.0-2.5 m (Allen, 1887b; Allen, 1887c; Ward, 1887). Caribbean monk seal vocalizations have been described as roaring, pig-like snorting, moaning, dog-like barks, growls, and snarls (Gosse, 1851; Hill, 1843; Nesbitt, 1836; Townsend, 1909). Pup vocalizations have been reported as a long, drawn out, guttural “ah” with a series of vocal hitches during enunciation (Ward, 1887). Underwater vocalizations of Caribbean monk seals have not been described and are unknown. Both Mediterranean and Hawaiian monk seals are known to consume a variety of fish, cephalopods, and crustaceans (Marchessaux, 1989; Goodman-Lowe, 1998), and it has been speculated that Caribbean monk seals had a similar diet (Nesbitt, 1836; Gosse, 1851; Ward, 1887). The three species of *Monachus* have no obvious functional dental or osteological features to suggest that their feeding habits are significantly different from each other (Adam and Berta, 2002). The incidence of disease in the wild has not been reported, but an occurrence of a condition that may have been cataracts has been noted (Gaumer, 1917; Ward, 1887). The nasal mite *Halarachne americana* was recovered in great numbers and in all stages of its life cycle from the respiratory passages of a single captive specimen. The mite, which is only known from Caribbean monk seals and has not been identified from any other species or habitats since that time, also may now be extinct (Adam, 2004). Caribbean monk seals were reported to have heavy parasitic helminth loads (Adam and Garcia, 2003; Ward, 1887), but a detailed description and species identification was not decribed. Life History Most observations of life history and behavior of Caribbean monk seals were based on short-term observations of seals in isolated colonies following heavy exploitation of the species. Due to the decline of this species after the arrival of the Europeans in the wider Caribbean region and its rarity by the time the species was first described in the scientific literature, remarkably little is known about its life history. Prior to its depletion, Caribbean monk seals hauled out in groups of up to 500 individuals (Nesbitt, 1836). Accounts of Caribbean monk seals were usually from isolated islands, keys, and atolls surrounded by shallow, reef-protected waters, and only occasionally from mainland beaches. Haul out sites were usually sandy beaches that remain exposed at high tide (Gaumer, 1917; and Hill, 1843; as summarized in Adam, 2004; Kerr, 1824; Ward, 1887), but also included near shore rocks and rocky islets (Allen, 1880; as cited in Adam and Garcia, 2003). Haul out sites typically had sparse or no vegetation and no fresh water (Ward, 1887). Adam and Garcia
(2003)and Ward
(1887)reported that the seals usually hauled out on beaches to rest in the early morning, though sometimes they would haul out and rest overnight. Very little is known about the effects of over-exploitation on sex ratios of the species. The male:female ratio of specimens collected during a 1900 expedition in Mexico was 24:76, but by then the species was already severely depleted. Because such data are limited to a single sample size from one colony, it is not possible to determine whether that reported sex ratio is representative, reflective of previous hunting on the sex ratio of the population, or due to some other unknown factor. Therefore, the relevance of those data to life history characteristics should be interpreted with caution. Observations of feeding seals have not been reported, and there are no reports of prey items from the few examinations of stomach contents cited in the available literature. Pregnant females were known only from the Triangle Keys off Mexico, where a newborn suckling pup and five females with fetuses were collected in early December 1886 (Ward, 1887) and a single pregnant seal was killed in late June 1900 (original unpublished field notes of W.E. Nelson as cited in Adam and Garcia, 2003). Adam and Garcia
(2003)speculate that Caribbean monk seals had low pupping synchrony due to the limited seasonal variations in climate and prey abundance. An annual birth rate of 15 percent has been calculated, but this is likely an underestimate (Rice, 1973). Rice
(1973)concluded that females rarely bore young in successive years and likely produced a pup every other year; however, research on Hawaiian monk seals (Johanos *et al.* , 1994) and Mediterranean monk seals (Johnson *et al.* , 2006) has demonstrated that pupping in successive years is common for those species. Weaning reportedly began 2 weeks after parturition; however, this also may be an underestimate based on weaning behavior in Hawaiian and Mediterranean monk seals. Pups apparently developed quickly (Nesbitt, 1836). Subadult seals were speculated to have foraged nocturnally in shallow, nearshore waters to avoid direct competition with adults, which fed at dawn and dusk (Adam and Garcia, 2003). Caribbean monk seals were estimated to have a life span of 20-30 years (Adam 2004), but long-term studies of the species in the wild were not conducted. However, this estimate is consistent with that of the Hawaiian monk seals, which is thought to have a life span of approximately 25-30 years. Distribution The historic distribution of Caribbean monk seals has been estimated from historical sightings, archeological records, fossil evidence, and geographical features bearing names suggestive of their presence (Adam and Garcia, 2003; Adam, 2004). The species' northernmost record is from a fossil recovered near Charleston, South Carolina. There is evidence that Caribbean monk seals used mainland beaches of North or Central America as haul-out sites in great numbers. Most sightings records were from isolated islands, cays, and reefs in the eastern Gulf of Mexico (Ray, 1961; Timm *et al.* , 1997) and western Caribbean Sea. The only evidence Caribbean monk seals occurred in the Lesser Antilles is from archeological remains in the northern end of the chain (Wing, 1992) and a single sighting record (Timm *et al.* , 1997). A few sighting records, archeological finds, and suggestive place names extend the known range of Caribbean monk seals to include the northern coast of South America (Timm *et al.* , 1997; Debrot, 2000). Previous Regulatory and Statutory Actions for the Caribbean Monk Seal The Caribbean monk seal was listed as endangered in 1967 under the Endangered Species Preservation Act of 1966 (32 FR 4001; March 11, 1967) and then again in 1979 following its re-assessment under the ESA (44 FR 21288; April 10, 1979). The first Caribbean monk seal 5-year review was published on November 9, 1984 (49 FR 44774). At the time of that review, no sightings or evidence of Caribbean monk seals were documented since the last confirmed sighting at Seranilla Bank, between Jamaica and the Yucatan Peninsula, in 1952. Therefore, that 5-year review concluded that the best available information indicated the Caribbean monk seal may be extinct. Following the 1984 status review, the U.S. Marine Mammal Commission contracted a study to interview local fishermen, residents, and sailors along the north coast of Haiti. Although there were two reported seal sightings obtained during the survey, there was no tangible evidence to confirm whether those sightings involved Caribbean monk seals or some other species. Based upon a credible account of a sighting, however, some isolated animals were believed to potentially remain in some remote regions off the northern coast of Haiti (Woods and Hermanson, 1987). A subsequent survey of fishermen in waters of Haiti and Jamaica also generated a few oral accounts of seal sightings, but again, there was no corroborating proof that the sightings involved seals, much less Caribbean monk seals (Boyd and Stanfield, 1998). We decided not to delist the species in 1999, however, because the question of the possible existence of a remnant population in the wild remained as a result of these surveys. Since the time of these additional surveys, there has been no new information to support the continued existence of Caribbean monk seals. A review of sightings and stranding data provided evidence of several positively identified arctic phocids (true seals, or earless seals) in tropical and sub-tropical waters of the Western North Atlantic from 1917 through 1996 (Mignucci-Giannoni and Odell, 2001). Due to confirmed sightings of arctic species in the Caribbean region outside their normal ranges, mostly hooded seals (Cystophora cristata), and lack of any Caribbean monk seal sightings since 1952, the authors concluded that the unidentified sightings in the period reviewed were not Caribbean monk seals (Mignucci-Giannoni and Odell, 2001). We recently analyzed data between 1996 and 2007 and determined 22 additional sightings of hooded seals have been confirmed in southeast U.S. waters in that time period, of which 7 occurred in the Caribbean Sea (Southeast U.S. Marine Mammal Stranding Database, 2007). No confirmed sightings of Caribbean monk seals have been reported since 1952. Detailed Information on Sightings of the Caribbean Monk Seal Since passage of the ESA, several efforts have been made to investigate unconfirmed reports of the species in or near the Caribbean Sea, Gulf of Mexico, the Southern Bahamas, and Atlantic coast of the Greater Antilles. There have been several reports of pinnipeds within the range of Caribbean monk seals since the last authoritative sighting at the Seranilla Banks in 1952. Unconfirmed sightings of pinnipeds up to that time resulted in speculation that the Caribbean monk seal still existed in a few, isolated colonies as late as the mid-to-late 1900s. The historical accounts of the species, unsuccessful expeditions to locate remnant colonies, and confirmed sightings of pinniped species other than Caribbean monk seal within the species' historical range now provide useful perspective on the species' decline. The following provides a brief historical account of sightings and survey efforts for the species. 1494: The first sightings records of Caribbean monk seals were made during the second voyage of Columbus, when eight individuals were killed for their meat (Kerr, 1824). 1700s to 1900s: Caribbean monk seals were exploited intensively for their oil, and to a lesser extent for food, scientific study, and zoological collection following European colonization (Allen, 1887b; Elliot, 1884; Townsend, 1923; Moore, 1953, Ward, 1887). 1886: Caribbean monk seals were reported to occur in the Triangle Keys in the Gulf of Campeche, where 49 seals were killed during a scientific expedition (Ward, 1887). 1897: The New York Aquarium acquired two specimens captured from the Triangle Keys (Townsend, 1909). 1906: On February 25, 1906, fishermen killed a Caribbean monk seal five miles off Key West, Florida. The 1906 account was the first sighting of the species in Florida in approximately 30 years (Townsend, 1906). 1909: The New York Aquarium received four live Caribbean monk seals from a dealer in Progresso, Yucatan. At the time, the last known population of the Caribbean monk seal was restricted to islands and reefs off the Yucatan, Mexico (Townsend, 1909). 1922: A monk seal was killed by a fisherman near Key West, Florida, on March 15, 1922. This was the last confirmed sighting of the seal in the United States. Townsend noted a small breeding colony still remained in the Triangulos reef group (i.e., the Triangle Islands) in the Campeche Bank islands off Mexico (Townsend, 1923). 1932: Following interviews with men having seen seals in the lower Laguna Madre region of Texas, Gordon Gunter concluded that a few Caribbean monk seals were scattered along the Texas coast as late as 1932 (Gunter, 1947). It was later suggested that the sightings of seals along the Texas coast were probably feral California sea lions (Gunter, 1968). 1952: C.B. Lewis made the last authoritative sighting of Caribbean monk seals at a small seal colony off Seranilla Banks (Colombia) in 1952, located between Jamaica and the Yucatan peninsula (Rice, 1973). 1973: The International Union for the Conservation of Nature and Natural Resources
(IUCN)distributed circulars in both English and Spanish throughout the Caribbean region in 1973, offering U.S. $500 for information on recent sightings of the species. No confirmed sightings were made (Boulva, 1979). 1973: The USFWS conducted aerial surveys off the Yucatan, south to Nicaragua, and east to Jamaica of all the areas where Rice suggested that Caribbean monk seals may still exist. The species was not sighted in the survey area (Kenyon, 1977). 1980: Canada's Department of Fisheries and Oceans, Arctic Biological Station, supported a search for evidence of Caribbean monk seals in remote islands of the southeastern Bahamas by vessel and interviews with local fishermen. The vessel survey produced no sightings of seals. Interviews with fishermen produced a few new accounts of seals in the area during the 1960s and 1970s, but the sightings could not be confirmed as Caribbean monk seals. (Sergeant *et al.* , 1980) 1984: From September 5-15, 1984, a survey was conducted across the Gulf of Mexico to Campeche, Mexico, aboard the Scripps Institution of Oceanography research vessel, Robert G. Sproul. The survey crew landed at three island groups off the north coast of the Yucatan Peninsula considered possible haul-out sites still used by monk seals: Islas Triangulos, Cayo Arenas and Arrecife Alacran. Another island, Cayo Arcas, was visited by helicopter on September 7, 1984. The survey yielded no seal sightings or evidence of their continued existence (LeBoeuf *et al.* , 1986). 1985: The U.S. Marine Mammal Commission contracted for a survey of local fishermen, coastal residents, and sailors in northern Haiti. Two of 77 people interviewed reported having seen a seal, one of which - a sighting at le Rat in the Baie de l'Acul in 1981 - was considered a reliable account. In neither case, however, was it possible to confirm the sighting as a Caribbean monk seal (Woods and Hermanson, 1987). 1996: The IUCN Seal Specialist Group listed the Caribbean monk seal as extinct on its Red List of threatened and endangered species (Seal Specialist Group, 1996). 1997: Based on interviews with 93 fishermen in northern Haiti and Jamaica during 1997, it was concluded that there was a likelihood that Caribbean monk seals may still survive in this region of the West Indies. Fishermen were asked to select marine species known to them from randomly arranged pictures: 22.6 percent (n=21) selected monk seals of which 78 percent (n=16) had seen at least one in the past 1-2 years (Boyd and Stanfield, 1998). 2001: A review of seal sightings and marine mammal stranding data in the Southeast U.S. and Caribbean region documented evidence of several pinnipeds positively identified as arctic phocids between 1917 and 1996 that had strayed into the tropical and subtropical waters of the Western North Atlantic. Due to confirmed sightings of arctic species, mostly hooded seals (Cystophora cristata) in the Caribbean region outside their normal ranges, confirmed sightings and recaptures of feral California sea lions that had escaped from captivity, and lack of any confirmed Caribbean monk seal sightings since 1952, the authors concluded that unidentified sightings since 1952 were likely species other than Caribbean monk seals (Mignucci-Giannoni and Odell, 2001). 2007: Between 1996 and 2008, 22 additional, confirmed sightings of hooded seals have been reported from the tropical and subtropical waters of the Western North Atlantic, including seven from the Caribbean Sea (Southeast U.S. Marine Mammal Stranding Database data, 2007). Although Caribbean monk seals could be cryptic while at sea and a low number of individuals in a population may lower the detectability of individuals, hauled out individuals at rest or females with pups would be conspicuous to an observer. The United Nations Environment Programme, Caribbean Environment Programme, was contacted in December 2007 regarding any new information on surveys or sightings of Caribbean monk seals that may have been missed by NMFS' review of sightings and stranding data; however, the inquiry resulted in no new information. With pervasive human presence in the wider Caribbean region and the necessity for seals to haul-out to rest and pup, it would be expected that any remaining individuals in the wild would have been sighted and confirmed over the past 50 years. Furthermore, there are few, if any, remaining areas where Caribbean monk seals were known to occur that have not been frequented by at least periodic human visits (e.g., fishing activities, recreational activities, and scientific expeditions). No Caribbean monk seal sightings have been reported from the numerous scientific surveys conducted in the former range of the species (e.g., avian nesting colonies, sea turtle nesting beaches, coral reef studies, and other biological and ecological research). Fishermen, shrimping boats, and abandoned camps have been ubiquitous throughout the species' known hauling grounds for decades (Kenyon, 1977; LeBoeuf *et al.* , 1986). Because the range of Caribbean monk seal lies well outside the normal distribution of all other pinnipeds, sightings of seals are remarkable events in the wider Caribbean region. NMFS' analysis of stranding data shows that the occurrence of arctic phocids outside their normal ranges occurs with some regularity. Current technology allows for near real-time communication when such rare or unusual species are sighted. Better methods also exist to confirm species identification when such sightings are made (e.g., photographs and genetic analysis of tissue samples). Although some seal sightings inevitably are not identifiable to a particular species, all those that have been confirmed in recent decades within the known range of the Caribbean monk seal have proven to be other species, namely feral California sea lions (Rice 1973), manatees (Trichechus manatus), or hooded seals (Mignucci-Giannoni and Odell, 2001; NMFS Southeast U.S. Marine Mammal Stranding Database data, 2007). The occurrence of juvenile hooded seals in subtropical and tropical waters (outside the normal range of these seals) occurs with enough frequency to account for most recent pinniped sightings within the former range of the Caribbean monk seal (Mignucci-Giannoni and Haddow, 2002; Mignucci-Giannoni and Odell, 2001). A sufficient amount of time has passed since the last sighting of this species to indicate clearly the status of this species. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the IUCN have set 50 years with no sightings as the cut-off for species extinction (IUCN, 1982). In 1949, the International Conference on the Protection of Nature (United Nations Scientific Conference on the Conservation and Utilization of Resources) included the Caribbean monk seal in a list of 14 mammals whose survival was considered to be a matter of international concern requiring immediate protection (Westermann, 1953). However, the last confirmed sighting of the species occurred in 1952, limiting any opportunity for conservation efforts of any remaining animals in the wild. It has been over 50 years since the last confirmed sighting of Caribbean monk seals in the wild despite multiple survey efforts to locate the species. Solow
(1993)used survey data of Caribbean monk seals to demonstrate statistically that the likelihood of extinction is high based on the lack of sightings of this species. The IUCN concluded the Caribbean monk seal was extinct in 1996 (Seal Specialist Group, 1996), but the species remained listed under the ESA in the United States based on the results of survey data conducted after the 1984 status review indicating a possibility that some Caribbean monk seals persisted for a few years after their last confirmed sighting in 1952 at Seranilla Bank. Although there were no sightings, it is possible that the Caribbean monk seal persisted for a short period in the years following the last confirmed sighting in 1952 at Seranilla Bank. If so, with an estimated life span of 20-30 years, some newborn individuals may have possibly persisted in the wild between the 1950s and early 1980s. If any remnant population did survive, it seems likely they consisted of scattered individuals, with no remaining colonies large enough to be viable in the wild. Considering the absence of seals sightings since 1952, the fact that all confirmed seal sightings have been of other species, and the ubiquitous presence of humans throughout the species' range, the Caribbean monk seal appears to have been extirpated before any meaningful conservation and recovery efforts could be taken for the species. Although documentation of harvest levels and practices that led to this species' population decline is nearly absent, it is evident from early reports that relatively large numbers of seals persisted in at least some areas as late as the early 1800s and that their precipitous decline in abundance was due to heavy exploitation by sealers and others. During the 1800s their distribution became increasingly fragmented. By the time scientific expeditions were organized in the late 1800s to document and study the species, their range was already drastically curtailed. Rice
(1973)noted that the last confirmed sighting of this species was in 1952 at Seranilla Banks in the western Caribbean. The Caribbean monk seal population was already severely depleted, and likely extirpated throughout most, and possibly all, of its range prior to the passage of the ESA and Marine Mammal Protection Act. Consideration of the Factors Listed under Section 4(a)(1) of the ESA The two main factors leading to the listing of the Caribbean monk seal as endangered are the modification and curtailment of its habitat and range, and overutilization for commercial and educational purposes. Details about these factors and how they impacted the species are provided below, but because we have determined that this species is extinct, they no longer have any bearing on the status of the species. Modification and Curtailment of its Habitat and Range When hauled out on beaches, Caribbean monk seals were reported to have been sensitive to human disturbance (Allen, 1880; Gaumer, 1917; Ward, 1887). As with both Hawaiian and Mediterranean monk seals, Caribbean monk seals apparently became sensitized to human presence after exposure to hunting or other human activity. Thus, although many recent descriptions of monk seals state that they are highly sensitive to human disturbance, some accounts, including early accounts of the species (e.g., E.W. Nelson, as cited in Adam and Garcia, 2003), describe them as being very approachable when hauled out on beaches. When disturbed, Caribbean monk seals reportedly returned to the water where they remained until the people or vessels left the area (Adam and Garcia, 2003; Allen, 1880). As human settlements expanded in areas inhabited by this species and persistent hunting reinforced evasive seal behaviors, avoidance of human presence near populated shorelines and areas regularly visited by fishermen likely caused seals to abandon historic haul-out sites. Human encroachment also likely exacerbated stresses on the population as it declined. Although the species was reported as common in the early to mid 1700s, it was already considered rare by the mid 1880s (Allen, 1887b; Elliot, 1884; Gratacap, 1900). Overutilization for Commercial and Educational Purposes Caribbean monk seals were utilized as a source of meat by early mariners and heavily exploited as a source of oil following European colonization (Allen, 1880). Other human-caused factors, such as entanglement and drowning in fishing nets or slaughter by fishermen viewing the seals as competitors for fish, contributed to their decline (Rice, 1973). Caribbean monk seals were also killed for scientific collection and study, as well as for display in zoological gardens. Adam
(2004)provides an excellent review of the historical exploitation of Caribbean monk seals. He reports the species was the most readily exploited source of oil in the tropical West Atlantic Ocean prior to the early 1800s, and that they were hunted to near extinction for their blubber until the early 1900s. Blubber was processed and used for lubrication, coating the bottom of boats, and as lamp and cooking oil. Caribbean monk seal skins were sought to make trunk linings, articles of clothing (e.g., caps and belts), straps, and bags. In the early 1700s, a girdle fashioned from a Caribbean monk seal pelt was believed to relieve lower back pain. At least some sailors reportedly prized monk seal pelts believing that their hairs became erect during rough seas, but remained flat in calm seas. The Swiss naturalist Konrad Gesner reported accounts from seafarers in the Caribbean (near the island of Hispaniola) in the 1550s, writing: “Its hair is reputed to be of such a wondrous nature that the skins or belts are worn by mariners. When thunderstorms, tempests and other inclement weather is nigh, the hair shall rise and bristle, but when it turns still and mild, it shall lay down smoothly” (Gesner, 1558, as cited in Johnson, 2004). Caribbean monk seals were taken for food by sailors stranded on the Arricifes Viboras
(Cuba)in 1520, on the Islas de Lobos (Veracruz, Mexico) in 1524, Dry Tortugas (Florida) in 1742, and in the Triangle Keys (Mexico) in 1846. Guano gatherers visiting the Triangle Keys in 1856 reportedly made a bonfire of 100 barrels of Caribbean monk seal skins and skeletons left behind by sealers, suggesting that they were heavily exploited for their oil in this region. Fishermen sometimes hunted the seals for meat until about 1885. In at least one instance, two monk seals were killed simply ''for fun'' (Allen, 1880). Aside from heavy hunting pressure by humans, the only known natural predator reported is an unidentified species of shark (Fernandez de Oviedo, 1944). As a result of this species' increasing rarity in the wild, live specimens were eagerly sought by zoological gardens following the discovery of remnant populations in the late 1800s. In 1897, two live specimens sold for $50.00 each, and dead or mounted specimens also were sold to museums. Two scientific expeditions to the Triangle Keys are believed to have contributed to the extirpation in that region. On 4 days in December 1886, 49 seals were killed in the Triangle Keys (Allen, 1887; Ward, 1887). Live specimens obtained by the New York Aquarium in 1897 and 1909 also were captured from the Triangle Keys (Townsend, 1909). Listing Determination Based upon the best available commercial and scientific information, we have determined that the Caribbean monk seal has become extinct. A sufficient period of time has passed since the last confirmed sighting of the species, and the best available information supports this finding. Therefore, we propose to remove the species from the endangered species list. References Cited A complete list of all references cited in this rulemaking is available upon request from the NMFS (see ADDRESSES ). Peer Review On July 1, 1994, we and the USFWS published a series of policies regarding delistings under the ESA, including a policy for peer review of scientific data (59 FR 34270). In December 2004, the Office of Management and Budget
(OMB)issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Public Law 106-554), is intended to enhance the quality and credibility of the Federal Government's scientific information, and applies to influential or highly influential scientific information disseminated on or after June 16, 2005. To satisfy our requirements under our peer review policy and the OMB Bulletin, independent peer review was obtained from three individual subject matter experts to ensure the best biological and commercial information was used to make the recommendation to delist the species due to extinction. Peer review was also obtained to ensure that reviews by recognized experts were incorporated into the 5-year review that supports this proposal to delist the Caribbean monk seal, and we incorporated the peer review comments prior to dissemination of this proposed rulemaking. The 5-year review upon which the information in this proposed rule is based was completed for the Caribbean monk seal on March 7, 2008, and is available on our website (see ADDRESSES ). Public Comments To ensure that final action resulting from this proposed rule will be as accurate and effective as possible and be based upon the best available scientific and commercial information, we solicit comment from the public, other governmental agencies, the scientific community, industry, and any other interested parties. Title 50, CFR 424.16(c)(3) requires the Secretary of Commerce to promptly hold at least one public hearing if any person requests one within 45 days of publication of a proposed regulation to change the listed status of a species under the ESA. Requests for public hearing must be made in writing (see DATES and ADDRESSES ). Such hearings provide the opportunity for interested individuals and parties to give comments, exchange information and opinions, and engage in a constructive dialogue concerning this proposed rule. We encourage the public's involvement in such ESA matters. Classification National Environmental Policy Act The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing to the best scientific and commercial data available. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 657 F 2d 829 (6th Cir.1981), we have concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act. (see also NOAA Administrative Order 216 6.) Executive Order (E.O.) 12866, Regulatory Flexibility Act As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this rule is exempt from review under E. O. 12866. Paperwork Reduction Act This proposed rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act. Federalism E.O. 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific consultation directives for situations where a regulation will preempt state law, or impose substantial direct compliance costs on state and local governments (unless required by statute). Neither of these circumstances is applicable to this proposed listing determination. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual State and Federal interest, this proposed rule will be given to the relevant state agencies in each state in which the Caribbean monk seal formerly occurred, and each will be invited to comment. List of Subjects in 50 CFR Part 224 Administrative practice and procedure, Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Dated: June 3, 2008. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, we propose to amend 50 CFR part 224 as follows: PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES 1. The authority citation for part 224 continues to read as follows: Authority: 16 U.S.C. 1531 1543 and 16 U.S.C. 1361 *et seq.* 2. Amend § 224.101(b) by removing the term “Caribbean monk seal ( *Monachus tropicalis* );”. [FR Doc. E8-12808 Filed 6-6-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 600 [Docket No. 070717348-7766-02] RIN 0648-AV60 Magnuson-Stevens Act Provisions; Annual Catch Limits; National Standard Guidelines AGENCY: National Marine Fisheries Service (NMFS); National Oceanic and Atmospheric Administration (NOAA); Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS proposes revisions to the guidelines for National Standard 1
(NS1)of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). This action is necessary to provide guidance on how to comply with new annual catch limit
(ACL)and accountability measure
(AM)requirements for ending overfishing of fisheries managed by federal fishery management plans (FMPs). It also clarifies the relationship between ACLs, maximum sustainable yield (MSY), optimum yield (OY), and other applicable reference points. The intent of this action is to facilitate compliance with requirements of the Magnuson-Stevens Act to end and prevent overfishing, rebuild overfished stocks and achieve OY. DATES: Comments must be received by September 8, 2008. ADDRESSES: You may submit comments, identified by 0648-AV60, by any of the following methods: • *Electronic Submissions:* Submit all electronic public comments via the Federal e-Rulemaking portal: *http://www.regulations.gov;* • *Fax:* 301-713-1193, Attn: Mark Millikin; • *Mail:* Mark R. Millikin, National Marine Fisheries Service, NOAA, Office of Sustainable Fisheries, 1315 East-West Highway, Room 13357, Silver Spring, MD 20910 (mark outside of envelope “Comments on Annual Catch Limits proposed rule”); Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, Wordperfect, or Adobe PDF file formats only. Copies of the Regulatory Impact Review (RIR)/Regulatory Flexibility Act Analysis
(RFAA)for this proposed rule are available from Mark R. Millikin at the address listed above. The RIR/RFAA document is also available via the internet at *http://www.nmfs.noaa.gov/msa2007/catchlimits.htm.* FOR FURTHER INFORMATION CONTACT: Mark R. Millikin, Senior Fishery Management Specialist, 301-713-2341. SUPPLEMENTARY INFORMATION: Table of Contents I. Overview of Proposed Revisions II. Acronyms III. Background IV. NMFS's Proposed Rule for Further Revisions to NS1 Guidelines in 2005 V. NMFS's Initial Action on MSRA Requirements for ACLs VI. MSRA Ending Overfishing Requirements VII. Reasons for Overfishing and Expectations for ACLs to Prevent/End Overfishing VIII. Definition, Interpretation, and Application of the Term “Fishery” and Its Relevance to ACLs A. Stocks in the Fishery B. Ecosystem Component Species C. Stocks Identified in More Than One FMP D. Stock Complexes IX. Statutory Exceptions to Requirements for ACLs and AMs and Flexibility in Application of the NS1 Guidelines X. MSRA Requirements for SSCs Related to ACLs XI. MSY, OY, and SDC: A Review XII. Description of the Relationship of OFL to MSY and ACT to OY XIII. Definition Framework for OFL, ABC, ACL, and ACT XIV. Control Rules XV. Sector ACLs, ACTs, and AMs XVI. Accountability Measures XVII. Summary of Items to Include in FMPs XVIII. Change in Timetable When Establishing a Rebuilding Plan XIX. Establishing the Length of Time for a Rebuilding Plan XX. Action When a Stock's Rebuilding Plan Ends and the Stock Is Not Rebuilt XXI. Changes to the definitions of Some Components of MSY XXII. Social, Economic and Ecological Factors as They Relate to OY XXIII. Scope of This Proposed Action XXIV. Republishing Codified Text in Its Entirety XXV. Classification I. Overview of Proposed Revisions NMFS fulfills the requirements of section 301(b) of the Magnuson-Stevens Act—``The Secretary shall establish advisory guidelines (which shall not have the force and effect of law), based on national standards, to assist in the development of fishery management plans,” with its national standard guidelines that appear at 50 CFR 600.310 through 50 CFR 600.355. NMFS is proposing revisions to the NS1 guidelines to address, among other things, new requirements for fisheries undergoing overfishing, to have ACLs and AMs to end overfishing by 2010, and all fisheries to have ACLs and AMs in place to prevent or end overfishing by 2011, and beyond. A stock or stock complex may not require an ACL and AMs if it qualifies for a statutory exception under the Magnuson-Stevens Act. Other proposed revisions to the NS1 guidelines include:
(1)A description of the relationship between MSY, OY, overfishing limits (OFL), acceptable biological catch (ABC), ACLs, and annual catch targets (ACTs);
(2)guidance on how to combine the use of ACLs and AMs for a stock to prevent overfishing when possible, and adjust ACTs or ACLs, or both, and AMs, if an ACL is exceeded;
(3)allowing for inclusion of ecosystem component
(EC)species in FMPs and, in such cases, guidance for how to classify which stocks are “in the fishery” and which species are ecosystem components;
(4)replacing MSY control rules with ABC control rules and replacing OY control rules with ACT control rules;
(5)new requirements for scientific and statistical committees (SSC);
(6)changing the timeline to prepare new rebuilding plans;
(7)revised guidance on how to establish rebuilding time targets; and
(8)advice on action to take at the end of a rebuilding period if a stock is not yet rebuilt. II. Acronyms ABC—acceptable biological catch ACL—annual catch limit ACT—annual catch target AM—accountability measures ANPR—Advance Notice of Proposed Rulemaking B <sup>msy</sup> —MSY stock size EC—ecosystem component species EEZ—Exclusive Economic Zone F <sup>msy</sup> —MSY fishing mortality rate FMP—fishery management plan MFMT—maximum fishing mortality threshold MSA—Magnuson-Stevens Act MSRA—Magnuson-Stevens Fishery Conservation and Management Reauthorization Act MSST—minimum stock size threshold MSY—maximum sustainable yield NOI—Notice of Intent NS1—National Standard 1 OFL—overfishing limit OY—optimum yield SDC—status determination criteria SFA—Sustainable Fisheries Act SSC—scientific and statistical committee T <sup>max</sup> —maximum time allowable for rebuilding a stock T <sup>min</sup> —minimum time for rebuilding a stock T <sup>target</sup> —target time for rebuilding a stock III. Background The MSA serves as the chief authority for fisheries management in the U.S. Exclusive Economic Zone (EEZ). Section 301(b) of the MSA requires that “The Secretary shall establish advisory guidelines (which shall not have the force and effect of law), based on the national standards, to assist in the development of fishery management plans.” Guidelines for the national standards are codified in subpart D of 50 CFR part 600. The guidelines for national standards were last revised through a final rule published in the **Federal Register** on May 1, 1998 (63 FR 24212), by adding revisions to the guidelines for National Standards 1 (optimum yield), 2 (scientific information), 4 (allocations), 5 (efficiency), and 7 (costs and benefits); and adding new guidelines for National Standards 8 (communities), 9 (bycatch), and 10 (safety of life at sea). The guidelines for NS1 were revised extensively in the final rule published on May 1, 1998, to bring them into conformance with revisions to the MSA, as amended in 1996 by the Sustainable Fisheries Act (SFA). In particular, the 1998 revisions to the NS1 guidelines addressed new requirements for FMPs brought about by SFA amendments to MSA section 304(e) (rebuilding overfished fisheries). The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (MSRA), which President Bush signed into law on January 12, 2007, included new requirements regarding preventing and ending overfishing and rebuilding fisheries. Therefore, NMFS is proposing revisions to the NS1 guidelines at 50 CFR 600.310, to integrate these new requirements with existing provisions related to overfishing, rebuilding overfished stocks, and achieving optimum yield. IV. NMFS's Proposed Rule for Further Revisions to NS1 Guidelines in 2005 NMFS published an advance notice of proposed rulemaking
(ANPR)in 2003 (68 FR 7492, February 14, 2003), and a proposed rule in 2005 (70 FR 36240, June 22, 2005), in the **Federal Register** to propose further revisions to the NS1 guidelines. NMFS sought to improve the utility of the 1998 guidelines in assisting the regional fishery management councils, and the Secretary of Commerce (Secretary) in the case of a Secretarial Amendment or a Secretarial FMP (denoted collectively hereafter as “Councils,” as 50 CFR 600.305(c)(11) provides that “Council” includes both the regional fishery management councils and the Secretary when preparing FMPs or amendments), when establishing or revising status determination criteria
(SDC)for overfishing and overfished definitions for stocks, and constructing or revising rebuilding plans for overfished stocks. Although NMFS received many public comments on the ANPR and the 2005 proposed rule, NMFS decided not to pursue publication of a final rule when it learned that Congress was preparing an amendment to the MSA that seemed likely to revise how to manage stocks undergoing overfishing and stocks that need a rebuilding plan. Congress's efforts culminated in passage of the 2006 MSRA. V. NMFS's Initial Action on MSRA Requirements for ACLs NMFS published a notice of intent
(NOI)to prepare an environmental impact statement
(EIS)and commencement of a scoping period for ACLs and AMs in the **Federal Register** on February 14, 2007 (72 FR 7016), with a comment period ending date of April 17, 2007. NMFS held nine scoping sessions, one associated with each of the eight Regional Fishery Management Councils' meetings and one at NMFS Headquarters in Silver Spring, MD. Comments that NMFS received are contained in “Summary of Comments Received on NMFS Proposal to Develop Guidance on ACLs and AMs, July 2007,” that is available at the NMFS Web site: *http://www.nmfs.noaa.gov/msa2007/catchlimits.htm.* The NOI indicated that an environmental assessment or EIS would be prepared for this action. However, NMFS has decided that, for purposes of compliance with the National Environmental Policy Act, a categorical exclusion is appropriate for this action. The proposed action would provide general guidance on ACL and AM and other requirements, but there is considerable diversity in federally-managed fisheries and FMPs. Thus, any analysis of the environmental, economic, and social impacts of the NS1 guidelines would be highly speculative. Potential environmental, economic, and social impacts cannot be meaningfully analyzed until the Councils apply the guidelines to specific fisheries and FMPs. At that time, the Councils would prepare an EIS or EA, as appropriate. VI. MSRA Ending Overfishing Requirements Section 104(a)(10) of the MSRA established new requirements to end and prevent overfishing, including ACLs and AMs. Section 303(a)(15) was added to the MSA to read as follows: “establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.” ACLs and AMs are required by fishing year 2010 if overfishing is occurring in a fishery, and they are required for all other fisheries by fishing year 2011. In practical terms, given the time it takes to prepare and implement an FMP amendment, if the status of one or more stocks in a fishery at the end of 2008 is “subject to overfishing,” Councils should submit ACL and AM mechanisms and actual ACLs for that fishery to be effective in fishing year 2010. If overfishing is determined to be occurring in a fishery in 2009, Councils should submit ACL and AM mechanisms and actual ACLs for that fishery to be effective in fishing year 2010, if possible, or in fishing year 2011, at the latest. All fisheries must have ACL and AM mechanisms and actual ACLs by the fishing year 2011, and beyond. The Secretary should amend Secretarial FMPs, to comply with ACL and AM requirements on the same timetable. Section 305(c) of the MSA, which was unchanged by MSRA, also provides authority to the Secretary to promulgate emergency regulations or interim measures necessary to address an emergency or overfishing for any fishery without regard to whether an FMP exists for such fishery. NMFS recognizes that the phrase, “at a level such that overfishing does not occur” in section 303(a)(15) of the MSA is subject to different interpretations, as reflected in the varying comments received during scoping. On the one hand, the phrase could be interpreted to mean that overfishing is strictly prohibited at any cost. On the other hand, section 303(a)(15) refers to a “mechanism” for setting ACLs, including AMs, which seems to imply a more dynamic process that allows for adjustment of management measures as a fishery is carried out. The only way to ensure absolutely no overfishing occurs is to stop fishing. As long as fishing occurs, there is a chance for occasional instances of overfishing due to scientific uncertainty of data, influence of non-fishing factors, and management uncertainty. Continued overfishing for a period of years (chronic overfishing), presents the greatest danger to the health of fish stocks, and often leads to stocks becoming overfished. NMFS has noted that overfished stocks with chronic overfishing seem to seldom rebuild, whereas overfished stocks that are rarely subject to overfishing have a better chance of rebuilding. Taking the above considerations into account, NMFS believes that the ACL requirement should be interpreted to provide for some flexibility given scientific and management uncertainty and other factors, but at the same time, must address overfishing and facilitate rebuilding. Chronic overfishing can be prevented by ensuring that the combination of ACLs and AMs decrease the risk of future overfishing each successive time an ACL is exceeded. NMFS thus proposes a performance standard such that if catch of a stock exceeds its ACL more often than once in the last four years ( *i.e.* , more often than 25 percent of the time), then the system of ACLs, ACTs and AMs should be re-evaluated to improve its performance and effectiveness (see § 600.310(g)(3) in this proposed action). NMFS believes that allowing a higher frequency of the ACL being exceeded would not safeguard enough against overfishing. A Council could choose a higher performance standard (e.g., a stock's catch should not exceed its ACL more often than once every five or six years) for a stock that is particularly vulnerable to the effects of overfishing. VII. Reasons for Overfishing and Expectations for ACLs to Prevent/End Overfishing The “NMFS Fourth Quarterly Report for 2007 Status of U.S. Fisheries” indicates that 41 stocks managed by federal FMPs were undergoing overfishing as of December 31, 2007. Stocks become listed as “overfishing” or remain in an overfishing status for a variety of reasons, including: 1. The goal of the FMP may be to end overfishing over several years by gradually reducing fishing mortality rates instead of ending overfishing immediately. 2. Management measures have proven ineffective at ending overfishing (e.g., lack of inseason closure authority for the fishery or management measures are aimed at achieving a target catch that is set too close to the catch amount that results in overfishing, or both). 3. Management measures to address overfishing have not been implemented yet. 4. Recent change in scientific advice (i.e., the Council has not had sufficient time to amend the FMP and no automatic measures exist in the FMP to make necessary adjustments to end overfishing in the subsequent fishing year). 5. Bycatch mortality in other fisheries has not been addressed adequately or is poorly known. 6. Data sufficient to verify whether or not overfishing is occurring are not available, so the existing overfishing determination is retained. 7. International fishing pressure is responsible for the large majority of overfishing. 8. Fishing pressure in state or territorial waters is responsible for the large majority of overfishing, federal action alone is not sufficient to end overfishing, and managers in the various jurisdictions are unable thus far to agree on a concerted approach for preventing overfishing. NMFS believes that the ACL and AM requirements will address overfishing that results from reasons 1, 2, 3, and 4 above. Better scientific data, along with adequate ACLs and AMs, should enable Councils to prevent overfishing for reasons 5 and 6. Stocks that are undergoing overfishing for reason 7 would be exempt from the ACL requirement (see §§ 600.310(h)(2)(ii) and 600.310(k) of this proposed action for discussion of international fisheries). There may be circumstances where managers in various jurisdictions are unable to agree on an ACL and AMs that would end or prevent overfishing for a fishery described under reason 8. In such cases, these proposed guidelines would require an ACL for the overall fishery, but AMs would be implemented only for the portion of the fishery under federal management authority. VIII. Definition, Interpretation, and Application of the Term “Fishery” and Its Relevance to ACLs The MSA, as amended by MSRA, requires that a Council shall develop ACLs “for each of its managed fisheries” (see MSA section 302(h)(6)) and as noted earlier, that each FMP have a mechanism for specifying ACLs “at a level such that overfishing does not occur in the fishery” (see MSA section 303(a)(15)). Consistent with these sections of the MSA, the proposed NS1 guidelines provide that ACLs and AMs are needed for each “fishery” under federal FMP management, unless covered by a statutory exception. The MSA defines “fishery” broadly, and this definition did not change with the passage of the MSRA. A “fishery” is “one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational and economic characteristics,” and “any fishing of such stocks” (see MSA section 3(13) and 50 CFR 600.10). The term “fishery” can mean different things in different contexts. For example, when dealing with biological concepts such as determining a status of overfishing or overfished, the NS1 guidelines generally apply at the “stock or stock complex” level (See, e.g., 50 CFR 600.310(c)(1),
(d)(defining MSY and “overfish” with regard to “stock or stock complex”) and § 600.305(c)(12) (explaining that “stock or stock complex” is used as a synonym for “fishery” in NS guidelines). In other instances, such as managing a fishery for OY, the term “fishery” is viewed more broadly (see 50 CFR 600.310(f) (referring to OY at the “fishery” and not the “stock or stock complex” level)). Given the broad definition of “fishery,” the Councils have had, and continue to have, considerable discretion in defining the “fishery” under FMPs. Some FMPs include only one or a few stocks whereas others include several or hundreds of species. Looking at existing FMPs, the primary reasons why stocks are included in FMPs are because people seek to harvest them for sale or personal use (i.e., the fish are the target of fishing activity), or they are caught incidentally in the pursuit of harvesting one or more other stocks and could experience overfishing or become overfished without conservation and management measures. These reasons are consistent with the stated purposes of the MSA, which includes the preparation and implementation of FMPs “which will achieve and maintain, on a continuing basis, the optimum yield from each fishery” (see MSA section 2(b)(4)). OY is defined with regard to “the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems” (see MSA section 3(33)). While the focus of FMPs has been stocks managed for OY, in recent years, some FMPs have included other stocks in an effort to incorporate ecosystem approaches to management. Congress acknowledged this increased attention to ecosystem approaches in the “Findings” section of the Act (see MSA section 2(a)(11) (acknowledging that a number of Councils have demonstrated significant progress in integrating ecosystem considerations under existing authorities of the MSA)). In addition, MSRA added a new section 303(b)(12) that provides that an FMP may “include management measures in the plan to conserve target and non-target species and habitats, considering the variety of ecological factors affecting fishery populations.” NMFS wants to encourage ecosystem approaches to fishery management and believes that clarification of what constitutes the “fishery” would be helpful. As such, NMFS is proposing guidance pertaining to “stocks in the fishery” and “ecosystem component
(EC)species,” which are described in detail below. The intent of this guidance is to articulate approaches taken under existing FMPs and to provide a framework for thinking about future FMPs and FMP amendments. The Councils would have the discretion to determine, on a case-by-case basis, whether changes in their stock classifications under current FMPs are needed. A. Stocks in the Fishery As a default, all stocks currently identified in an FMP are considered “stocks in the fishery.” “Stocks in the fishery” would include target stocks (i.e., stocks that fishers seek to catch for sale or personal use, including “economic discards” as defined under MSA section 3(9)), non-target stocks that are retained for sale or personal use, and non-target stocks that are not retained for sale or personal use and that are either determined to be subject to overfishing, approaching overfished, or overfished, or could become so, according to the best scientific information available, without conservation and management measures (see Figure 1 and § 600.310(d)(2) of this proposed action). Stocks and stock complexes in the fishery should have quantitative SDC, MSY, ABC, ACL, and ACT (collectively called “reference points” throughout this section) and AMs (see Table 1 for reference points needed for different types of stocks, and see § 600.310(b)(2)(iv) of this proposed action), although some stocks in the fishery may not require ACLs and AMs if they are covered by a statutory exception (see § 600.310(h)(2) of this proposed action). Hereafter, in these guidelines, “stock” or “stock(s) and stock complex(es)” refer to “stocks in the fishery.” B. Ecosystem Component Species Beyond the “stocks in the fishery,” a Council may, but is not required to, include EC species in an FMP. Such species would include non-target fish species that are not considered part of the “fishery” but rather species with which the fishery may occasionally interact (i.e., catch) (see § 600.310(d)(5) of this proposed action). A Council may choose to include EC species for purposes of incorporating ecosystem approaches to fishery management, data collection, etc. Identification of EC species must be done through an FMP amendment process (see § 600.310(d) of this proposed action). Such species are appropriate to consider when addressing specification of OY and conservation and management measures for the fishery (see MSA sections 3(33) (referring to taking into account the marine ecosystems in OY definition), and 3(5) (referring to avoiding irreversible or long-term effects on fishery resources and the marine environment and ensuring multiplicity of options)). Because EC species are not considered to be “in the fishery,” specification of reference points, ACLs, and AMs are not required (see Table 1). However, a Council should consider measures for the fishery to minimize bycatch and bycatch mortality of EC species consistent with National Standard 9, and to protect their associated role in the ecosystem. NMFS is especially interested in the public's comments on the appropriate criteria for classification of EC species. C. Stocks Identified in More Than One FMP If a stock is identified as part of more than one “fishery,” Councils should choose which FMP will be the “primary FMP” in which management objectives, SDC, and other reference points for the stock are established. In most cases, the primary FMP for a stock will be the one in which the stock is identified as a target stock. Other FMPs in which the stock is identified as part of a fishery should contain management measures consistent with the primary FMP for the stock. EP09JN08.000 Table 1.—Reference Points, Accountability Measures, and Control Rules That Would Be Required or Recommended Reference points, accountability measures, and control rules Stocks and stock complexes in a fishery (excluding those with an approximate 1 year life cycle and those managed under international fishery agreements) Stocks and stock complexes in a fishery that have a life cycle of approximately 1 year Stocks and stock complexes in a fishery managed under an international fishery agreement 3 Ecosystem component species 4 MSY 1 ✓ ✓ ✓ N/A SDC 1 (e.g. MFMT 2 , MSST 2 ) ✓ ✓ ✓ N/A OY 1 At the stock, stock complex, or fishery level At the stock, stock complex, or fishery level R N/A OFL 2 R R R N/A ABC 1 ✓ ✓ R N/A ACL 1 ✓ Only if “subject to overfishing” R N/A AMs 1 ✓ Only if “subject to overfishing” R N/A ACT 2 ✓ Only if “subject to overfishing” R N/A ABC control rule 2 ✓ ✓ R N/A ACT control rule 2 ✓ R R N/A 1 MSA requirement. 2 For consistency with the NS1 Guidelines. 3 If the stock is in a U.S. FMP and managed under an international fishery agreement to which the U.S. is party. 4 Not required by MSA, but an option provided in the NS1 Guidelines. Legend: ✓ = Yes, this is applicable. ABC = Acceptable Biological Catch. ACL = Annual Catch Limit. AM = Accountability Measures. MFMT = Maximum Fishing Mortality Threshold. MSST = Minimum Stock Size Threshold. MSY = Maximum Sustainable Yield. N/A = Not Applicable. OFL = Overfishing Limit. OY = Optimum Yield. R = Recommended. SDC = Status Determination Criteria. D. Stock Complexes “Stock complex” means a group of stocks in an FMP that are sufficiently similar in geographic distribution, life history, and vulnerability to the fishery that the impacts of management actions on the stocks in the complex is similar (see § 600.310(d)(8) of this proposed action). Stock complexes may be comprised of:
(1)One or more indicator stocks, each of which has SDC and ACLs, and several other stocks;
(2)several stocks without an indicator stock, with SDC and an ACL for the complex as a whole; or
(3)one or more indicator stocks, each of which has SDC and management objectives, with an ACL for the complex as a whole (this situation might be applicable to some salmon species). For stock complexes, the SDC measured on a stock complex-wide basis or for an indicator stock should satisfy the MSA's requirements to prevent overfishing and achieve OY for a fishery. Vulnerability of stocks to the fishery should be evaluated when determining if:
(1)A particular stock complex should be established or reorganized;
(2)a particular stock should be a member of a stock complex; or
(3)a stock complex should be reorganized. Indicator stocks are stocks selected as a representative for a stock complex because they have known determinations regarding SDC, and known values for MSY and OY, and can form the basis for an MSY and OY for the combinations of stocks in a complex. Although it is common for the indicator stock for a stock complex to be the most abundant stock, if an indicator stock is less vulnerable than other stocks in the complex, the management measures should be more conservative to protect the more vulnerable stocks from overfishing. IX. Statutory Exceptions to Requirements for ACLs and AMs and Flexibility in Application of NS1 Guidelines The MSRA provides two statutory exceptions to the ACL and AM requirements under MSA section 303(a)(15) (see MSRA section 104(b) (adding two exceptions under a MSA section 303 note); see also § 600.310(h)(2) of this proposed action). First, MSA section 303(a)(15) “shall not apply to a fishery for species that have a life cycle of approximately 1 year unless the Secretary has determined the fishery is subject to overfishing of that species'' (see MSRA section 104(b)(2)). NMFS interprets “fishery for species” to be a stock. In addition, NMFS interprets “a life cycle of approximately 1 year” to mean that the average length of time it takes for an individual to produce a reproductively active offspring is approximately 1 year, and that the individual has only one breeding season in its lifetime. While stocks that qualify for the 1-year life cycle exception would not need to have ACLs and AMs, such stocks should still have SDC, MSY, OY, ABC, and an ABC control rule. Second, MSA section 303(a)(15) shall take effect in 2010 and 2011, as discussed earlier, “unless otherwise provided for under an international agreement in which the United States participates'' (see MSRA section 104(b)(1)). It is not clear to what the text “unless otherwise provided for” is referring. NMFS has considered several possible interpretations of this text in light of other provisions in MSRA, including the new international overfishing provisions in MSA section 304(i). Prior to MSRA, fisheries managed under international agreements in which the United States participates (referred to in this action as “international fisheries”) were subject to MSA section 304(e) requirements regarding overfishing and rebuilding. However, in many of these fisheries, the United States could not unilaterally end overfishing or rebuild the stocks. New MSA section 304(i) and other MSRA provisions acknowledge the increasing problem of international overfishing and the challenges of establishing conservation and management measures at the international level. Given Congress's recognition of the increasing problem of international overfishing and the complexities of international negotiation, NMFS believes that the ACL exception should apply to fisheries that are subject to management under international agreements in which the United States participates. Applying ACLs or AMs only to the U.S. portion of the catch would not effect rebuilding or end overfishing, would potentially disadvantage U.S. fishermen with respect to foreign fishermen, and could weaken U.S. negotiating positions at international fora in which it participates. Apart from the statutory exceptions, NMFS recognizes that there are limited circumstances that do not fit the standard approaches to specification of reference points and management measures set forth in the proposed revisions to the NS1 guidelines. These include, among other things, conservation and management of ESA-listed species, harvests from aquaculture operations, and stocks with unusual life history characteristics (e.g., Pacific salmon, where the spawning potential for a stock is spread over a multi-year period). For fisheries where ESA-listed species are incidentally caught, the ESA recovery plan would be a significant driver for setting management objectives, including ACLs, for the fishery. For aquaculture, once managers address status of broodstock taken from the wild (i.e., whether overfishing is occurring and/or whether the stock is in need of rebuilding), then the levels of harvests from an aquaculture facility would not necessarily need to focus on ending or preventing overfishing or rebuilding stocks. In these circumstances, Councils may propose alternative approaches for satisfying the NS1 requirements of the Magnuson-Stevens Act other than those set forth in these guidelines. Councils should document their rationale for any alternative approaches for these limited circumstances in an FMP or FMP amendment, which will be reviewed for consistency with the Magnuson-Stevens Act. For a fishery in a federal FMP that has a large majority of harvest in state or territorial waters, the fishery should have ACL that takes into account the overall status of the stock, whether in state or federal waters or beyond. However, NMFS recognizes that AMs could only be applied to the portion of the fishery under federal jurisdiction. Given the jurisdictional issue, one approach proposed is that the overall ACL could be divided into a federal portion (federal-ACL) and a state portion (state-ACL). AMs would then be triggered when the federal-ACL was reached or projected to be reached (see further explanation in “Accountability Measures” section below). X. MSRA Requirements for SSCs Related to ACLs The MSRA added new requirements for SSCs in the MSA. New section 302(g)(1)(B) of the MSA states that an SSC for each Regional Fishery Management Council “shall provide its Council ongoing scientific advice for fishery management decisions, including recommendations for acceptable biological catch, preventing overfishing, maximum sustainable yield, and achieving rebuilding targets, and reports on stock status and health, bycatch, habitat status, social and economic impacts of management measures, and sustainability of fishing practices.” New section 302(g)(1)(E) provides that “The Secretary and each Council may establish a peer review process for that Council for scientific information used to advise the Council about the conservation and management of the fishery.” In addition, new section 302(h)(6) provides that each Regional Fishery Management Council is required to “develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process established under subsection (g).” NMFS recognizes that there is variability in the peer review processes and involvement of SSCs amongst the various Councils. In addition, the above statutory sections could be subject to different interpretations. While MSA section 302(h)(6) refers generally to “fishing level recommendations,” section 302(g)(1)(B) refers to recommendations for ABC and MSY, among other things, and section 302(g)(1)(E) refers generally to “scientific information.” Further, the text provides for advice from the SSC but also refers to peer review processes, leaving open a question about the role and relationship between the two. NMFS believes that clear processes for implementing these provisions are important in order to ensure that Councils get the information needed to establish ACL mechanisms, prevent confusion in the decision making process, and ensure general consistency in approaches taken. For purposes of setting ACLs, a critical piece of scientific advice that Councils will need will be the ABC. Taking this into account, and considering the new requirements in light of existing SSC, Council, and peer review processes, NMFS proposes that the Councils establish a process that could be included in their Statement of Organization, Practices and Procedures (see § 600.115) which will: Establish an ABC control rule, identify the body that will apply the ABC control rule (i.e., calculates the ABC), identify the review process that will verify the resulting ABC, and confirm that the SSC recommends the ABC to the Council. For Secretarial FMPs or FMP amendments, agency scientists or a peer review process would provide the scientific advice to establish ABC. For fisheries managed under international agreements in which the United States participates (referred to in this action as “international fisheries”), stock assessments are conducted through international scientific bodies that may include U.S. and non-U.S. scientists. While the United States promotes fishery conservation and management principles as embodied in the MSA (see, e.g., MSA section 102(c)), it cannot guarantee that international actions will be consistent with the Act or NS1 guidelines. Thus, an ABC as defined in these guidelines would not be required for international fisheries. For stock and stock complexes required to have an ABC, NMFS recommends that each Council should establish an ABC control rule (see § 600.310(f)(4) of this proposed action) based on scientific advice from its SSC. The process of establishing an ABC control rule could also involve science advisors or the peer review process established under MSA section 302(g)(1)(E). Stock assessment scientists, a plan development team, or other designated body would then apply the ABC control rule. If a peer review process is established it should investigate the technical merits of stock assessments and other scientific information used by the SSC. For example, a peer review process (e.g., Stock Assessment Review Panel) could validate the ABC calculation and then pass their results to the SSC. Ultimately, the SSC should make the formal ABC recommendation to the Council. For Council-managed fisheries, the peer review process is not a substitute for the SSC, and should work in conjunction with the SSC. XI. MSY, OY, and SDC: A Review MSY, OY, and SDC are concepts described in the current NS1 guidelines, and MSRA did not effect changes to the MSA that would require changes to these concepts. The following sections provide a review of MSY, OY, and SDC and an explanation of the relationship between them and the proposed guidance on ACLs and other requirements. MSY is the largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological and environmental conditions and fishery technological characteristics. Any estimate of MSY depends on the population dynamics of the stock and the characteristics of the fisheries (e.g. gear selectivity). MSY stock size (B msy ) is the long-term average size of the stock or stock complex, measured in terms of spawning biomass, or other appropriate measure of the stock's reproductive potential, that would be achieved by fishing at F msy . OY is the amount of fish that will provide the greatest overall benefit to the Nation, while preventing overfishing, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems. OY is prescribed on the basis of the MSY from the fishery, as reduced by relevant economic, social or ecological factors. In the case of an overfished fishery, OY provides for rebuilding to a level consistent with producing MSY in such a fishery. In NS1, use of the phrase, “achieving, on a continuing basis, the optimum yield from each fishery” means producing, from each stock, stock complex or fishery a long-term series of catches such that the average catch is equal to OY, overfishing is prevented, the long term average biomass is near or above B msy , and overfished stocks are rebuilt in as short a time as possible as specified in MSA section 304(e)(4). OY might be established at the stock or stock complex level, or for a fishery comprised of stocks, many of which have their own ACL and ACT (e.g., groundfish of the Gulf of Alaska and groundfish of the Bering Sea and Aleutian Islands). Section 3(34) of the MSA states that “overfishing” and “overfished” mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis. To reduce confusion and conform to usage of those terms in other fisheries worldwide, in the current NS1 guidelines, NMFS interpreted these terms so that “overfished” pertains to the biomass of the stock or stock complex, and “overfishing” pertains to a rate or level of removal of fish from the stock or stock complex. The current NS1 guidelines also provide for SDC, which are quantifiable factors for determining whether a stock or stock complex is overfished or if overfishing is occurring. An overfished definition consists of a measure of stock abundance called the minimum stock size threshold (MSST), below which a stock's or stock complex's capacity to produce MSY on a continuing basis is jeopardized. Overfishing of a stock or stock complex occurs whenever a stock or stock complex is subjected to a rate or level of fishing mortality, called the maximum fishing mortality threshold (MFMT), above which the stock's or stock complex's capacity to produce MSY on a continuing basis is jeopardized or annual catch exceeds a stock's or stock complex's OFL. MSRA made no changes to the MSA that would necessitate different interpretations of these terms or different approaches to these concepts. XII. Description of the Relationship of OFL to MSY and ACT to OY National Standard 1 establishes the relationship between conservation and management measures, preventing overfishing, and achieving OY from each stock, stock complex or fishery. The following sections describe in detail NMFS’ proposed guidance on ACLs and other new requirements. Among other things, the proposed guidance introduces new terms—overfishing limit
(OFL)and annual catch target (ACT)—which are not set forth in the MSA but which NMFS believes would be helpful to implement the statutory requirements. As an overview, OFL is an annual amount of catch that corresponds to the estimate of MFMT applied to a stock or complex's abundance; MSY is the long-term average of such catches. The current NS1 guidelines define overfishing with regard to MFMT, which is a rate of fishing. The use of OFL would provide another method for measuring overfishing by allowing the comparison of a stock or stock complexes' annual catch to its OFL; if catch exceeds OFL, overfishing is occurring. It is recommended that ABC would be set below OFL to take into account the scientific uncertainty in the estimate of OFL. ACL would be the limit that triggers AMs, and ACT would be the management target for the fishery. Management measures for a fishery should, on an annual basis, achieve the ACT and prevent the ACL from being exceeded. The long-term objective is to achieve OY through annual achievement of ACT. XIII. Definition Framework for OFL, ABC, ACL, and ACT The MSRA does not define ACLs, AMs, and ABC, and there are many different ways in which these terms can be defined. The voluminous comments that NMFS received during scoping reflects the wide range of possible interpretations and approaches. For example, some commenters felt that ACL should be considered a target catch level and others felt it should be a limit that should not be approached or reached. Many commenters suggested, in general, that a buffer be implemented between management targets and limits in order to prevent overfishing and account for uncertainty. Over the past year, NMFS spent considerable time reviewing different interpretations of the ACL requirement in light of MSA sections 303(a)(15), 302(h)(6), and 302(g) and other sections of the MSA, and taking into consideration the current NS1 guidelines, previously proposed changes to those guidelines, existing FMPs and FMP amendments, scientific and management roles in the decision making process, and public comment. Based on this review, NMFS proposes the following definitions for ACL, AM, and ABC, and also for ACT and OFL: 1. Overfishing limit
(OFL)means “the annual amount of catch that corresponds to the estimate of MFMT applied to a stock or stock complex's abundance and is expressed in terms of numbers or weight of fish.” See § 600.310(e)(2)(i)(D) of this proposed action. 2. Acceptable biological catch
(ABC)means “a level of a stock or stock complex's annual catch that accounts for the scientific uncertainty in the estimate of OFL and should be specified based on the ABC control rule.” See § 600.310 (f)(2)(ii) of this proposed action. 3. Annual catch limit
(ACL)means “the level of annual catch of a stock or stock complex that serves as the basis for invoking accountability measures.” See § 600.310(f)(2)(iv) of this proposed action. 4. Annual catch target
(ACT)means “an amount of annual catch of a stock or stock complex that is the management target of the fishery. A stock or stock complex's ACT should usually be less than its ACL and results from the application of the ACT control rule. If sector-ACLs have been established, each one should have a corresponding sector-ACT.” See §§ 600.310(f)(2)(v) and (f)(6) of this proposed action. 5. Accountability measures
(AMs)means “management controls that prevent ACLs or sector-ACLs from being exceeded (inseason AMs), where possible, and correct or mitigate overages if they occur.” See § 600.310(g) of this proposed action. As proposed in this action, the relationship between the above terms would be OFL≥ABC≥ACL≥ACT (see Figure 2). Because a primary goal of the MSA, and management responsibility of NMFS and the Councils, is to end and prevent overfishing, rather than account for it after it occurs, NMFS believes that a good approach to management is to have OFL>ABC and ACL>ACT. The ABC is lower than the OFL to address scientific uncertainty in the estimate of OFL, and ACT is lower than the ACL to address uncertainty in the accounting for catch and in the degree to which management measures can control catch to the target level. OFL is an annual amount of catch that corresponds to the estimate of MFMT applied to a stock or complex's abundance, and MSY is the long-term average of such catches. NMFS proposes that OFL be the upper bound of ABC, but that ABC should usually be reduced from the OFL to account for scientific uncertainty in the estimate of OFL. For overfished stocks, ABC must also be set to reflect the annual catch that is consistent with the rebuilding plan for that stock. Therefore, if a stock is being managed under a rebuilding program, its ABC should be lower during some or all stages of rebuilding than when the stock is rebuilt. The ABC will be set on the basis of the ABC control rule. The proposed guidelines would have the Councils set the ACL as a level of catch specified for a stock or stock complex each year that cannot exceed its ABC. If a stock or stock complex's catch exceeds its ACL, AMs will be invoked as specified in the FMP. The ACL may typically be equal to the ABC and setting the ACL provides an opportunity to divide the total ACL into sector-specific ACLs. As noted above, the purpose of the ACT is to address management uncertainty. The ACT would be the target catch of a stock or stock complex that a fishery is managed to attain and should generally be less than the stock or stock complex's ACL. “Catch” includes fish that are retained for any purpose, as well as mortality of fish that are discarded (see § 600.310(f)(2)(i) of this proposed action). Therefore, for fisheries where bycatch estimates are not available in a timely enough manner to manage annual catch, targets may be specified for landings, so long as an estimate of bycatch is accounted for such that total of landings and bycatch will not exceed the stock's or stock complex's ACL. For a stock with sufficient inseason data monitoring, the fishery for that stock would be closed in time to prevent the ACL from being exceeded. NMFS notes that when it published an initial notice about ACLs, ACT was not a parameter used when exploring the concept of how to make ACLs and AMs operational. At that time, NMFS suggested an initial approach of OFL>ABC≥ACL with ACL as the target catch that management measures should try to attain. Under that approach, if catch of a stock reached the OFL, its fishery would be closed. During the scoping period, NMFS received some public comments expressing concern about the use of an ACL as a management target as opposed to a “limit.” Also, the framework contained in this proposed rule provides for better separation between scientific uncertainty in estimating OFL (i.e., a recommendation that ABC be lower than OFL), and management uncertainty and OY factors indicating that an ACT be lower than the ACL. EP09JN08.001 XIV. Control Rules Control rules are harvest strategies that specify how a stock's or stock complex's catch will be modified in response to one or more factors, particularly estimated stock size. The current NS1 guidelines include MSY control rules which are “limit” control rules and OY control rules which are “target” control rules. For any stock, the limit control rule results in a higher amount than the target control rule for a given stock abundance. Because of the new MSA requirement for annual catch limits to end and prevent overfishing for stocks in a fishery, NMFS proposes that MSY control rules be replaced by ABC control rules and become the new limit control rule, and OY control rules be replaced by ACT control rules and become the new target control rule. This would align the control rules more directly with the new requirement to specify an ABC and an ACL for stocks in the fishery (see earlier discussion in the preamble for the relationship between OFL and MSY, and between ACT and OY). ABC and ACT control rules should be developed for each stock when possible. For stock complexes, ABC and ACT control rules should be developed for each indicator stock or for the stock complex as a whole. ACTs should be set with the intention that they typically will be achieved. A stock's or stock complex's ACT control rule should result in lower target catches than the ABC control rule would, for all levels of a stock's or stock complex's abundance. In the proposed revisions to NS1 guidelines, an ABC control rule is a specified approach to setting the ABC for a stock or stock complex as a function of the scientific uncertainty in the estimate of OFL. An ACT control rule is an approach to setting the ACT for each stock and stock complex such that the risk of exceeding ACL due to management uncertainty (ability to control catch and variability in catch data) is an acceptably low level. Both control rules are designed to reduce the risk that overfishing will occur. For rebuilding stocks, the ABC, ACL, and ACT should be set at lower levels than for rebuilt stocks because two objectives are combined. First, overfishing should not occur; and second, rebuilding at a rate commensurate with the stock's rebuilding plan should occur. This means that, for a rebuilding stock, a lower target fishing mortality rate may be needed to accomplish rebuilding, in addition to avoiding overfishing (i.e., ACL and ACT are lower than they would be if the stock was rebuilt). XV. Sector ACLs, ACTs, and AMs A Council may decide, but is not required, to divide the ACL into sector-ACLs. “Sector” for purposes of the NS1 guidelines means a distinct user group to which separate management strategies and catch quotas apply. Examples of sectors could include the commercial sector, recreational sector, or various gear groups within a fishery. It is up to each Council to decide how to designate sectors, if any. If sector-ACLs are established, sector-AMs and sector-ACTs must be developed for each sector-ACL. In cases where states cooperatively manage a stock, it is possible that a sector ACL could be further subdivided in order to establish “subsector” ACLs and ACTs for various states to align with current management of catch limits or quotas in the state fisheries. The system of ACLs and AMs must be effective and equitable and protect the stock as a whole from overfishing. The sum of a stock's sector-ACLs must not exceed the stock's ACL. If sector-ACLs and sector-AMs are established, additional AMs at the stock level would also be appropriate. A sector must be closed inseason if timely catch data indicates its ACL has been reached. If a sector does not have timely inseason fisheries data, or has a history of annual overages, then a Council should establish a large enough difference between a sector's ACT and ACL to improve the probability that the sector-ACL and the stock's ACL are not exceeded. XVI. Accountability Measures AMs are management controls implemented for stocks such that exceeding the ACL or sector-ACL is prevented, where possible, and corrected or mitigated if it occurs (see § 600.310(g) of this proposed action). AMs include:
(1)Those that are applied inseason and designed to prevent the ACL from being reached;
(2)measures applied after the fishing year that are designed to address the operational issue that caused the ACL overage, ensuring it does not happen in subsequent fishing years, and, as necessary, address any biological harm to the stock; and
(3)those based on multi-year average data which are still reviewed and applied annually (see discussion below). AMs should address and minimize both the frequency of overages and the magnitude of an overage. AMs should be designed so that if an ACL is exceeded, specific adjustments are effective in the next fishing year, or as soon as possible, with explanation of why more timely adjustment is not possible. If timely inseason fishery catch data are available for a stock, Councils should ensure their FMPs contain inseason closure authority as an AM to prevent a stock's ACL from being exceeded. Where fishery catch data are not timely enough to implement inseason AMs, the ACT should be adjusted downward from the ACL to account for the increased management uncertainty and the delayed ability to implement AMs. A “multiyear plan” as referenced in section 303(a)(15) of the MSA is a plan that establishes harvest specifications or harvest guidelines for each year of a time period greater than one year. Because “multiyear plans” establish ACLs and ACTs for more than one year at a time, they should include AMs that provide if an ACL is exceeded in one year, then a subsequent year's harvest specification (including ACLs and ACTs) could be revised (see § 600.310(f)(5)(i) of this proposed action). Some fisheries have highly variable annual catches and lack reliable inseason or annual data on which to base AMs. If there are insufficient data upon which to compare catch to ACL, either inseason or on an annual basis, a Council could base AMs on comparison of average catch to average ACL over a three-year moving average period or, if supported by analysis, some other appropriate multi-year period (see § 600.310(g)(4) of this proposed action). As a performance standard, if the average catch exceeds the average ACL more than once in the last four years, then the ACL, ACT and AM system should be re-evaluated to improve its performance. The initial ACL and management measures should incorporate information from previous years so that AMs based on average ACLs can be applied from the first year. If a stock is in a rebuilding plan and its ACL is exceeded, the AMs should include overage adjustments that reduce the ACL in the next fishing year by the full amount of the overage, unless the best scientific information available shows that a reduced overage adjustment is sufficent, or no adjustment is needed to mitigate the effects of the overage. This AM is important to increase the likelihood that the stock will continue to rebuild. As discussed earlier, stocks and stock complexes in federal FMPs that have a large majority of harvest in state or territorial waters should have an ACL that takes into consideration the overall status of the stock. However, federal management would be limited to that portion of the fishery under federal jurisdiction. Options for AMs that a Council could consider for stocks or stock complexes caught mostly in state or territorial waters would include, but are not limited to:
(1)Close the EEZ when the federal portion of the ACL is reached, or
(2)close the EEZ when the overall stock or stock complex's ACL is reached. The AMs should ensure that federal managers are doing as much as possible to end and prevent overfishing. When stocks are co-managed by federal, state, tribal, and/or territorial fishery managers, the goal should be to develop collaborative conservation and management strategies, and scientific capacity to support such strategies, to prevent overfishing of shared stocks and ensure their sustainability. XVII. Summary of Items To Include in FMPs This section provides a summary of items that Councils should include in their FMPs and FMP amendments in order to address ACL, AM, and other aspects of the proposed NS1 guidelines. Some items are specific to new MSRA provisions. Others were required prior to MSRA, but are included here so as to be comprehensive. Councils may review their FMPs to decide if all stocks are “in the fishery” or whether some fit the category of “ecosystem component species” and amend their FMP as appropriate. If they do not establish EC species through an FMP amendment, then all stocks in an FMP are presumed to be “in the fishery.” For all stocks and stock complexes that are in the fishery, the Councils should evaluate and describe the following items in their FMPs and amend the FMPs, if necessary, to align their management objectives to end or prevent overfishing (see § 600.310(c) of this proposed action):
(1)MSY and SDC,
(2)OY at the stock, stock complex or fishery level,
(3)ABC control rule,
(4)ACLs and mechanisms for setting ACLs and possible sector-specific ACLs in relationship to the ABC,
(5)ACT control rule,
(6)AMs and AM mechanisms, and
(7)stocks and stock complexes that have statutory exceptions from ACLs or fall under limited circumstances which require different approaches to meet the ACL requirements (e.g., ESA-listed stocks and harvests from aquaculture facilities). The Councils should evaluate the extent to which their FMPs comply with requirements to define MSY and OY for stocks in the fishery, and the reasons that OY is reduced from MSY (see § 600.310(e)(3)(iv) of this proposed action). An overall objective of management of federal fisheries under the MSA is to conserve fishery resources so as to prevent overfishing and achieve OY (see sections 2(a)(6) and 2(b)(4) of the MSA). OY is based on MSY for a fishery, as reduced for economic, social, or ecological reasons (see section 3(33)(B) of the MSA). Therefore, it is important that all FMPs have MSY and OY prescribed correctly. FMPs should contain a description of fisheries data for the stocks, stock complexes, and ecosystem component species. The sources of fishing mortality, such as commercial catch (both landed and discarded), recreational catch, and bycatch in other fisheries should be listed in the FMP for each fishery, along with a description of the data collection and estimation methods used to quantify total catch mortality in each fishery. The description of the data collection methods used to monitor the fishery should include information on the frequency that those data are collected and updated and the scope of sampling coverage for the fishery. In addition, the FMP should describe how those data are used to determine the relationship between total catch at a given point in time and the ACL for a stock or stock complex. FMPs should explain issues related to shared jurisdiction of stocks (if any), and the degree to which ACLs and AMs established by the Councils will ensure that overfishing does not occur on the stock as a whole. NMFS is aware that existing FMPs may use terms that are similar to, associated with, or may be equivalent to ABC, ACL, ACT, and AM in many fisheries for which annual specifications are set for different stocks or stock complexes. NMFS’ preference is that, as Councils revise their FMPs, they use the same terms as set forth in the NS1 guidelines as finalized. However, given the longstanding use of terms under certain FMPs, if changing terminology could cause confusion, Councils could opt to retain existing terminology and explain in a proposed rule how the terminology and approaches in the FMPs are consistent with those set forth in the NS1 guidelines. Councils should amend their FMPs to provide explicit narrative of how the FMP objectives and annual management measures will work with ACLs and AMs. All stocks and stock complexes should have an annual or multiyear specification process for stocks managed in a fishery. An annual or multiyear specification process for setting or adjusting ACLs provides a timely, consistent method that the public and stakeholders can understand, and that provides an opportunity for public comment. Such a process could also provide a method for assigning an ACL, ACT, and AM to a “stock having a life cycle of approximately one year” that is undergoing overfishing. XVIII. Change in Timetable When Establishing a Rebuilding Plan The MSA provides that the Secretary shall annually identify stocks and stock complexes that are overfished or approaching a condition of being overfished; notify the appropriate Council at any time when a stock or stock complex is determined to be overfished; and notify the appropriate Council when adequate progress is not being made under existing FMPs, FMP amendments, or regulations (see MSA sections 304(e)(1), (2), and (7)). MSRA did not change these identification and notification provisions but revised the timing of Council actions. Currently, the Councils have 1 year to prepare an FMP, an FMP amendment, or proposed regulations (see MSA sections 304(e)(3) and 304 note (Effective Date for Subsection (c)). Beginning July 12, 2009, the Councils have 2 years from the date of an identification or notification to prepare and implement an FMP, an FMP amendment, or proposed regulations “to end overfishing immediately in the fishery and to rebuild affected stocks * * * or to prevent overfishing from occurring in the fishery whenever such fishery is identified as approaching an overfished condition” (see MSA section 304(e)(3), as revised by MSRA section 104(c)). To facilitate timely implementation of actions under revised section 304(e)(3), the Councils should submit an FMP, an FMP amendment, or proposed regulations within 15 months of an identification or notification under this section. This will provide the Secretary with 9 months to implement the measures, if approved (see § 600.310(j)(2)(ii) of this proposed action). While MSA section 304(e)(3) provides for two years for a Council to prepare and implement an FMP, FMP amendment, or proposed regulations, as discussed earlier, MSA section 303(a)(15) has a separate requirement for FMPs and ACLs that is effective in fishing year 2010 for fisheries determined to be subject to overfishing and in fishing year 2011 for all other fisheries. Thus, as of 2010 and beyond, for a stock and stock complex determined to be overfished and experiencing overfishing, a Council needs to take measures consistent with MSA section 303(a)(15) that address overfishing while the rebuilding plan is under development. XIX. Establishing the Length of Time for a Rebuilding Plan NMFS proposes clarifying guidance for calculating the target time to rebuild (T <sup>target</sup> ) in rebuilding plans for stocks (see § 600.310(j)(3)(i)(E) of this proposed action), based on experiences with FMPs since the last NS1 guideline revisions. The purpose of this clarification is to emphasize that the rebuilding time must be “as short as possible,” taking several factors into account (see MSA section 304(e)(4)(A)(i)). Establishing the T <sup>target</sup> should be based on the minimum time for rebuilding a stock (T <sup>min</sup> ), and factors described in § 600.310(j)(3) of this proposed action with priority given to rebuilding in as short a time as possible. T <sup>target</sup> shall not exceed the maximum time allowable for rebuilding (T <sup>max</sup> ) and should generally be less than T <sup>max</sup> . XX. Action When a Stock's Rebuilding Plan Ends and the Stock Is Not Rebuilt Many rebuilding plans for overfished stocks under section 304(e) of the MSA were initiated in 1998, or later, and some of those plans are reaching the end of their rebuilding periods such that a stock is no longer overfished, but not rebuilt. NMFS does not have explicit guidance in the NS1 guidelines to describe what a Council should do under such circumstances. Therefore, NMFS proposes that if a stock reaches the end of its rebuilding plan period and it is not yet determined to be rebuilt, then the rebuilding F should not be increased until the stock has been demonstrated to be rebuilt (see § 600.310(j)(3)(ii) of this proposed action). If the rebuilding plan was based on a T <sup>target</sup> that was less than T <sup>max</sup> , and the stock is not rebuilt by T <sup>target</sup> , rebuilding measures should be revised if necessary, such that the stock will be rebuilt by T <sup>max</sup> . If the stock has not rebuilt by T <sup>max</sup> , and the rebuilding F is greater than 75 percent of MFMT, then the rebuilding F should be reduced to no more than 75 percent of MFMT until the stock has been demonstrated to be rebuilt. XXI. Changes to the Definitions of Some Components of MSY NMFS is proposing changes to the definitions of some components of MSY. The purposes of these changes are to improve some portions of the MSY related definitions and to further clarify how MSY is estimated. The definition of MSY in the NS1 guidelines would remain the same for the most part but the phrase “and fishery technological characteristics (e.g., gear selectivity) and the distribution of catch among fleets'' would be added to the end of the definition (see § 600.310(e)(1)(i)(A) of this proposed action). The purpose of this change is to acknowledge that MSY also depends upon gear selectivity (age at entry) and the catch performance of the fishery, which can depend on the relative proportion of catch between different fleets with differing fishing characteristics. The definition of MSY stock size would be changed in two places. Currently, the guidelines state that “MSY stock size means the long-term average size of the stock or stock complex, measured in terms of spawning biomass or other appropriate units that would be achieved under a MSY control rule in which the fishing mortality rate is constant.” In the proposed guidelines (see § 600.310(e)(1)(i)(C) of the proposed action), NMFS clarifies that “other appropriate units” means an “appropriate measure of the stock's reproductive potential.” NMFS also replaces the statement that “the fishing mortality rate is constant” with “Fmsy.” NMFS also added a definition for MSY fishing mortality rate
(Fmsy)(see § 600.310(e)(1)(i)(B) of the proposed action), which was lacking in the current guidelines. MSY fishing mortality “is the fishing mortality rate that, if applied over the long term, would result in MSY.” XXII. Social, Economic and Ecological Factors as They Relate to OY NMFS proposes additional guidance to better describe social and ecological factors, and minor revisions to the economic factors as they relate to setting OY for a stock (see § 600.310(e)(3)(iv) of this proposed action). The revisions to the social factors describe fishery-related indicators and non-fishery related indicators that should be considered when OY needs to be reduced for a stock or stock complex. XXIII. Scope of This Proposed Action NMFS received voluminous comments during its scoping comment period for ACLs and AMs, including proposals to strengthen guidance on ecosystem considerations when setting ACLs and AMs. While NMFS has carefully considered all comments received, it will not be able to include all proposed NS1 revisions in this action. These proposed revisions to the NS1 guidelines will address primarily the need to have ACL and AM mechanisms and ACLs and AMs in place such that ACLs end overfishing in 2010, for stocks undergoing overfishing, and prevent overfishing for all other stocks beginning in 2011. NMFS intends to withdraw most of the proposed revisions to the NS1 guidelines that were published in 2005 in a separate withdrawal of a proposed rule action. A few of the topics from the 2005 rule are considered in this action, such as:
(1)Establishing the length of time for a rebuilding plan;
(2)action to take when a stock is not determined to be rebuilt at the end of its rebuilding plan; and
(3)the definition of several components of MSY. Other proposed revisions considered in the 2005 proposed NS1 guidelines and suggested during the comment period for this action will be considered by NMFS for possible inclusion in subsequent revisions to the NS1 guidelines. XXIV. Republishing Codified Text in Its Entirety For clarity and convenience of the reader, this proposed rule would revise § 600.310 in its entirety. The following describes the changes to § 600.310 that are being proposed. In the proposed revisions to § 600.310, paragraph (b)— *General* , would be revised to contain a general outline of information provided by the NS1 guidelines. Current paragraph
(b)only contains a brief summary of the relationship between MSY and OY. Current paragraph (c)— *MSY* is revised and redesignated paragraph (e)(1). Current paragraph (d)(1)— *Definitions,* is revised and redesignated paragraph (e)(2)(i). Current paragraph (d)(2)— *Specification of status determination criteria,* is revised and redesignated paragraph (e)(2)(ii). Current paragraph (d)(3)— *Relationship of status determination criteria to other national standards* is revised, redesignated paragraph
(l)and renamed, “ *Relationship of National Standard 1 to other national standards* .” Current paragraph (d)(6)— *Exceptions,* is revised, redesignated paragraph (m), and renamed, “ *Exceptions to requirements to prevent overfishing* .” Current paragraph (e)— *Ending overfishing and rebuilding overfished stocks,* is revised and redesignated paragraph (j)— *Council actions to address overfishing and rebuilding for stocks and stock complexes in the fishery.* Current paragraph (f)— *OY* is redesignated paragraph (e)(3). Revised paragraphs with much different content include: Paragraph (c)— *Summary of Items to Include in FMPs Related to NS1,* paragraph (d)— *Classifying stocks in an FMP,* and paragraph (f)— *Acceptable Biological Catch, Annual Catch Limits, and Annual Catch Targets.* New paragraphs that contain new content not covered in the current NS1 guidelines include:
(g)*Accountability measures,*
(h)*Establishing ACL and AM mechanisms in FMPs,*
(i)*Fisheries data,* and
(k)*International overfishing.* XXV. Classification Pursuant to the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. This proposed rule has been determined to be significant for purposes of Executive Order 12866. NOAA has prepared a regulatory impact review of this rulemaking, which is available at: *http://www.nmfs.noaa.gov/msa2007/catchlimits.htm.* This analysis discusses various policy options that NOAA considered in preparation of this proposed rule, given NOAA's interpretation of the statutory terms in the MSRA, such as the appropriate meaning of the word “limit” in “Annual Catch Limit,” and NOAA's belief that it has become necessary for Councils to consider separately the uncertainties in fishery management and the scientific uncertainties in stock evaluation in order to effectively set fishery management policies and ensure fulfillment of the goals to end overfishing and rebuild overfished stocks. NOAA invites the public to comment on this proposal, the supporting analysis, and its underlying interpretation of the analytical requirements of the MSRA. In particular, NOAA seeks comment on: The appropriate interplay of the OFL, ABC, ACL and ACT; whether the Council's experience with MSY and OY would readily translate into these new concepts; whether the ACT and ACT control rules, as proposed, would be effective tools in managing fisheries at risk; the degree to which Councils should have the flexibility to specify stringent AMs to prevent the ACL from being exceeded in lieu of setting an ACT and ACT control rules; and the expected burden of these analytical requirements, both in terms of time and resources. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that these proposed revisions to the NS1 guidelines, if adopted, would not have any significant economic impact on a substantial number of small entities, as follows: I certify that the attached proposed action issued under the authority of the Magnuson-Stevens Fishery Conservation and Management Act
(MSA)will not have any significant economic impacts on a substantial number of small entities, as defined under the Regulatory Flexibility Act. The proposed action would revise the National Standard 1
(NS1)guidelines at 50 CFR 600.310. The proposed revisions to the NS1 guidelines provide guidance on how to address new overfishing and rebuilding and related requirements under MSA sections 303(a)(15), 304(e), and other sections. Pursuant to section 301(b) of the Act, the NS guidelines do not have the force and effect of law. Regional Fishery Management Councils (Councils) and the Secretary of Commerce would use the NS1 guidelines when developing or amending FMPs to implement annual catch limits
(ACLs)and accountability measures
(AMs)and to take necessary actions to rebuild overfished fisheries. ACL and AM requirements under section 303(a)(15) of the Magnuson-Stevens Act are effective in fishing year 2010, for stocks undergoing overfishing and in fishing year 2011, for all other fisheries. NMFS believes that revisions to the NS1 guidelines will assist the Councils and the Secretary in addressing new MSA requirements, ensure greater consistency in approaches to ending overfishing and rebuilding stocks, increase efficiency in reviewing actions and tracking annual management performance, and improve communication between NMFS and the Councils. Because the NS1 guidelines are general guidance and there is considerable diversity in the different federally-managed fisheries, potential economic impacts of the guidelines are highly speculative. As the Councils and/or the Secretary apply these guidelines to specific fisheries, they will develop FMPs, FMP amendments, or other regulatory actions that will be accompanied by environmental, economic, and social analyses prepared pursuant to the Regulatory Flexibility Act, National Environmental Policy Act, and other statutes. NMFS has identified a total of 59,823 commercial vessel permit holders and 18,486 headboat and charter boat vessel permits. A total of 26,074 recreational permits exist for Atlantic highly migratory species (HMS). Operator permits are estimated at 6,636 and dealer permits were estimated at 7,550. However, it is important to note that in most cases each vessel possesses permits for several fisheries (multiple vessel permits). As such, the total number of vessel permits (commercial, headboat and charter boat, and HMS recreational) grossly overestimate the actual number of vessels that are operating in these fisheries. All vessels included in the total vessel permits for each fishery are considered to be small entities for the purposes of the Regulatory Flexibility Act analysis. As a result, NMFS does not believe that these proposed revisions to the NS1 guidelines would place a substantial number of small entities at a disadvantage as compared to large entities or that it would reduce profit significantly. The NS1 guidelines would provide general guidance on ending and preventing overfishing and rebuilding fisheries, leaving considerable discretion to the Councils and the Secretary to consider alternative ways to accomplish these goals consistent with the NS, other provisions of the Magnuson-Stevens Act, and other applicable law. Therefore, an IRFA has not been prepared for this action. These proposed revisions to the NS1 guidelines do not contain any new recordkeeping or reporting requirements subject to the Paperwork Reduction Act. When the Councils and the Secretary develop FMPs, FMP amendments, or other regulatory actions per the Magnuson-Stevens Act and NS1 guidelines, such actions may include new proposed collection-of-information requirements. In the event that new collection-of-information requirements are proposed, a specific analysis regarding the public's reporting burden would accompany such action. NMFS is not aware of any other relevant federal rules that may duplicate, overlap or conflict with the proposed rule. List of Subjects in 50 CFR Part 600 Fisheries, Fishing, Reporting and recordkeeping requirements. Dated: June 3, 2008. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons stated in the preamble, 50 CFR part 600 is proposed to be amended as follows: PART 600—MAGNUSON-STEVENS ACT PROVISIONS 1. The authority citation for part 600 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. Section 600.310 is revised to read as follows: § 600.310 National Standard 1—Optimum Yield.
(a)*Standard 1.* Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield
(OY)from each fishery for the U.S. fishing industry.
(b)*General.*
(1)The guidelines set forth in this section describe fishery management approaches to meet the objectives of National Standard 1 (NS1), and include guidance on:
(i)Specifying maximum sustainable yield
(MSY)and OY;
(ii)Specifying status determination criteria
(SDC)so that overfishing and overfished determinations can be made for stocks and stock complexes that are part of a fishery;
(iii)Preventing overfishing and achieving OY using a system of limits and targets, incorporation of scientific and management uncertainty in control rules, and adaptive management using annual catch limits
(ACL)and measures to ensure accountability (AM); and
(iv)Rebuilding stocks and stock complexes.
(2)*Overview of Magnuson-Stevens Act concepts and provisions related to NS1* —(i) *MSY.* The Magnuson-Stevens Act establishes MSY as the basis for fishery management and requires that: The fishing mortality rate does not jeopardize the capacity of a stock or stock complex to produce MSY; the abundance of an overfished stock or stock complex be rebuilt to a level that is capable of producing MSY; and OY not exceed MSY.
(ii)*OY.* The determination of OY is a decisional mechanism for resolving the Magnuson-Stevens Act's conservation and management objectives, achieving a fishery management plan's
(FMP)objectives, and balancing the various interests that comprise the greatest overall benefits to the Nation. OY is based on MSY as reduced under paragraphs (e)(3)(iii) and
(iv)of this section. The most important limitation on the specification of OY is that the choice of OY and the conservation and management measures proposed to achieve it must prevent overfishing.
(iii)*ACLs and AMs.* Any FMP which is prepared by any Council shall establish a mechanism for specifying ACLs in the FMP (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability (Magnuson-Stevens Act section 303(a)(15)). Subject to certain exceptions and circumstances described in paragraph
(h)of this section, this requirement takes effect in fishing year 2010, for fisheries determined subject to overfishing, and in fishing year 2011 for all other fisheries (Magnuson-Stevens Act section 303 note). “Council” includes the Regional Fishery Management Councils and the Secretary of Commerce, as appropriate (see § 600.305(c)(11)). *(iv) Reference points.* SDC, MSY, acceptable biological catch (ABC), ACL, and annual catch target (ACT), which are described further in paragraphs
(e)and
(f)of this section, are collectively referred to as “reference points.”
(v)*Scientific advice.* The Magnuson-Stevens Act has requirements regarding scientific and statistical committees
(SSC)of the Regional Fishery Management Councils, including but not limited to, the following provisions:
(A)Each Regional Fishery Management Council shall establish an SSC as described in section 302(g)(1)(A) of the Magnuson-Stevens Act.
(B)Each SSC shall provide its Regional Fishery Management Council recommendations for ABC as well as other scientific advice, as described in Magnuson-Stevens Act section 302(g)(1)(B). The SSC may specify the type of information that should be included in the Stock Assessment and Fishery Evaluation
(SAFE)report (see § 600.315).
(C)The Secretary and each Regional Fishery Management Council may establish a peer review process for that Regional Fishery Management Council for scientific information used to advise the Regional Fishery Management Council about the conservation and management of the fishery (see Magnuson-Stevens Act section 302(g)(1)(E)). If a peer review process is established, it should investigate the technical merits of stock assessments and other scientific information used by the SSC. The peer review process is not a substitute for the SSC and should work in conjunction with the SSC.
(D)Each Regional Fishery Management Council shall develop ACLs for each of its managed fisheries that may not exceed the fishing level recommendations of its SSC or peer review process (Magnuson-Stevens Act section 302(h)(6)).
(3)*Approach for setting limits and targets for consistency with NS1.* In general, when specifying limits and targets intended to avoid overfishing and achieve sustainable fisheries, Councils should take an approach that considers uncertainty in scientific information and management control of the fishery. These guidelines identify limit and target reference points which should be set lower as uncertainty increases such that there is a low risk that limits are exceeded as described in paragraphs (f)(4) and (f)(6) of this section.
(c)*Summary of items to include in FMPs related to NS1.* This section provides a summary of items that Councils should include in their FMPs and FMP amendments in order to address ACL, AM, and other aspects of the NS1 guidelines. As described in further detail in paragraphs (c)(1) through
(7)of this section, Councils may review their FMPs to decide if all stocks are “in the fishery” or whether some fit the category of “ecosystem component species” and amend their FMPs as appropriate. If they do not establish ecosystem component species through an FMP amendment, then all stocks in an FMP are presumed to be “in the fishery.” Councils should also describe fisheries data for the stocks, stock complexes, and ecosystem component species in their FMPs. For all stocks and stock complexes that are “in the fishery,” the Councils should evaluate and describe the following items in their FMPs and amend the FMPs, if necessary, to align their management objectives to end or prevent overfishing:
(1)MSY and SDC (see paragraphs (e)(1) and
(2)of this section).
(2)OY at the stock, stock complex, or fishery level and provide the OY specification analysis (see paragraph (e)(3) of this section).
(3)ABC control rule (see paragraph (f)(4) of this section).
(4)ACLs and mechanisms for setting ACLs and possible sector-specific ACLs in relationship to the ABC (see paragraphs (f)(5) and
(h)of this section).
(5)ACT control rule (see paragraph (f)(6) of this section).
(6)AMs and AM mechanisms (see paragraphs
(g)and (h)(1) of this section).
(7)Stocks and stock complexes that have statutory exceptions from ACLs (see paragraph (h)(2) of this section) or which fall under limited circumstances which require different approaches to meet the ACL requirements (see paragraph (h)(3) of this section).
(d)*Classifying stocks in an FMP* —(1) *Introduction.* Magnuson-Stevens Act section 303(a)(2) requires that an FMP contain, among other things, a description of the species of fish involved in the fishery. FMPs include target stocks and may also include non-target species or stocks. All stocks listed in an FMP or FMP amendment are considered to be “in the fishery” unless they are identified as ecosystem component
(EC)species through an FMP amendment process.
(2)*Stocks in a fishery.* Stocks in a fishery include: Target stocks; non-target stocks that are retained for sale or personal use; and non-target stocks that are not retained for sale or personal use and that are either determined to be subject to overfishing, approaching overfished, or overfished, or could become so, according to the best available information, without conservation and management measures. Stocks in a fishery may be grouped into stock complexes, as appropriate. Requirements for reference points and management measures for these stocks are described throughout these guidelines.
(3)“Target stocks” are stocks that fishers seek to catch for sale or personal use, including “economic discards” as defined under Magnuson-Stevens Act section 3(9).
(4)“Non-target species” and “non-target stocks” are fish caught incidentally during the pursuit of target stocks in a fishery, including “regulatory discards” as defined under Magnuson-Stevens Act section 3(38). They may or may not be retained for sale or personal use. Non-target species may be included in a fishery and, if so, they should be identified at the stock level. Some non-target species may be identified in an FMP as ecosystem component
(EC)species or stocks.
(5)“Ecosystem component
(EC)species” are generally not retained for any purpose, although *de minimis* amounts might occasionally be retained. EC species may be identified at the species or stock level, and may be grouped into complexes. EC species may be included in an FMP or FMP amendment for any of the following reasons: For data collection purposes; for ecosystem considerations related to specification of OY for the associated fishery; as considerations in the development of conservation and management measures for the associated fishery; and/or to address other ecosystem issues. While EC species are not considered to be “in the fishery,” a Council should consider measures for the fishery to minimize bycatch and bycatch mortality of EC species consistent with National Standard 9, and to protect their associated role in the ecosystem. EC species do not require specification of reference points but should be monitored on a regular basis, to the extent practicable, to determine changes in their status or their vulnerability to the fishery. If necessary, they should be reclassified as “in the fishery.”
(6)*Reclassification.* A Council should monitor the catch resulting from a fishery on a regular basis to determine if the stocks and species are appropriately classified in the FMP. If the criteria previously used to classify a stock or species is no longer valid, the Council should reclassify it through an FMP amendment, which documents rationale for the decision.
(7)*Stocks or species identified in more than one FMP* . If a stock is identified in more than one fishery, Councils should choose which FMP will be the primary FMP in which management objectives, SDC, and other reference points for the stock are established. In most cases, the primary FMP for a stock will be the one in which the stock is identified as a target stock. Other FMPs in which the stock is identified as part of a fishery should be consistent with the primary FMP.
(8)*Stock complex.* “Stock complex” means a group of stocks that are sufficiently similar in geographic distribution, life history, and vulnerabilities to the fishery such that the impact of management actions on the stocks is similar. Stocks may be grouped into complexes for various reasons, including where stocks in a multispecies fishery cannot be targeted independent of one another; where there is insufficient data to measure their status relative to SDC; or when it is not feasible for fishermen to distinguish individual stocks among their catch. The vulnerability of stocks to the fishery should be evaluated when determining if a particular stock complex should be established or reorganized, or if a particular stock should be included in a complex. Stock complexes may be comprised of: One or more indicator stocks, each of which has SDC and ACLs, and several other stocks; several stocks without an indicator stock, with SDC and an ACL for the complex as a whole; or one of more indicator stocks, each of which has SDC and management objectives, with an ACL for the complex as a whole (this situation might be applicable to some salmon species).
(9)*Indicator stocks.* An indicator stock is a stock that is used to help manage and evaluate stocks that are in a stock complex and do not have their own SDC. If an indicator stock is used to evaluate the status of a complex, it should be representative of the typical status of each stock within the complex, due to similarity in vulnerability. If the stocks within a stock complex have a wide range of vulnerability, they should be reorganized into different stock complexes that have similar vulnerabilities; otherwise the indicator stock should be chosen to represent the more vulnerable stocks within the complex. In instances where an indicator stock is less vulnerable than other members of the complex, management measures need to be more conservative so that the more vulnerable members of the complex are not at risk from the fishery. More than one indicator stock can be selected to provide more information about the status of the complex. Although the indicator stock(s) are used to evaluate the status of the complex, individual stocks within complexes should be examined periodically using available quantitative or qualitative information to evaluate whether a stock has become overfished or may be subject to overfishing.
(e)*Features of MSY, SDC, and OY that should be identified in FMPs for all stocks and stock complexes in the fishery* —(1) *MSY* . Each FMP should include an estimate of MSY for the stocks and stock complexes in the fishery, as described in paragraph (d)(2) of this section).
(i)*Definitions.*
(A)*MSY* is the largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological, environmental conditions and fishery technological characteristics (e.g., gear selectivity), and the distribution of catch among fleets.
(B)*MSY fishing mortality rate (F* msy *)* is the fishing mortality rate that, if applied over the long term, would result in MSY.
(C)*MSY stock size (B* msy *)* means the long-term average size of the stock or stock complex, measured in terms of spawning biomass or other appropriate measure of the stock's reproductive potential that would be achieved by fishing at F <sup>msy</sup> .
(ii)*MSY for stocks.* MSY should be estimated for each stock based on the best scientific information available (see § 600.315).
(iii)*MSY for stock complexes.* MSY should be estimated on a stock-by-stock basis whenever possible. However, where MSY cannot be estimated for each stock in a stock complex, then MSY may be estimated for one or more indicator stocks for the complex or for the complex as a whole. When indicator stocks are used, the stock complex's MSY could be listed as “unknown,” while noting that the complex is managed on the basis of one or more indicator stocks that do have known, stock-specific MSYs or suitable proxies as described in paragraph (e)(1)(iv) of this section. When indicator stocks are not used, MSY or a suitable proxy should be calculated for the stock complex as a whole.
(iv)*Specifying MSY.* Because MSY is a long-term average, it need not be estimated annually, but it must be based on the best scientific information available (see § 600.315), and should be re-estimated as required by changes in long-term environmental or ecological conditions, fishery technological characteristics, or new scientific information. When data are insufficient to estimate MSY directly, Councils should adopt other measures of reproductive potential, based on the best scientific information available, that can serve as reasonable proxies for MSY, F <sup>msy</sup> , and B <sup>msy</sup> , to the extent possible. As MSY values are estimates and will have some level of uncertainty associated with them, the degree of uncertainty in the estimates should be identified, when possible, through the stock assessment process and peer review (see § 600.335).
(2)*Status determination criteria* —(i) *Definitions* —(A) *Status determination criteria (SDC)* mean the quantifiable factors, MFMT, OFL, and MSST, or their proxies, that are used to determine if overfishing has occurred, or if the stock or stock complex is overfished. Magnuson-Stevens Act (section 3(34)) defines both “overfishing” and “overfished” to mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the MSY on a continuing basis. To avoid confusion, this section clarifies that “overfished” relates to biomass of a stock or stock complex, and “overfishing” pertains to a rate or level of removal of fish from a stock or stock complex.
(B)*Overfishing* (to overfish) occurs whenever a stock or stock complex is subjected to a level of fishing mortality or annual total catch that jeopardizes the capacity of a stock or stock complex to produce MSY on a continuing basis.
(C)*Maximum fishing mortality threshold (MFMT)* means the level of fishing mortality (F), on an annual basis, above which overfishing is occurring.
(D)*Overfishing limit (OFL)* means the annual amount of catch that corresponds to the estimate of MFMT applied to a stock or stock complex's abundance and is expressed in terms of numbers or weight of fish. MSY is the long-term average of such catches.
(E)*Overfished.* A stock or stock complex is considered “overfished” when its biomass has declined below a level that jeopardizes the capacity of the stock or stock complex to produce MSY on a continuing basis.
(F)*Minimum stock size threshold (MSST)* means the level of biomass below which the stock or stock complex is considered to be overfished.
(G)*Approaching an overfished condition.* A stock or stock complex is approaching an overfished condition when it is projected that there is more than a 50 percent chance that the biomass of the stock or stock complex will decline below the MSST within two years.
(ii)*Specification of SDC and overfishing and overfished determinations.* SDC must be expressed in a way that enables the Council to monitor each stock or stock complex in the FMP and determine annually, if possible, whether overfishing is occurring and whether the stock or stock complex is overfished. In specifying SDC, a Council should provide an analysis of how the SDC were chosen and how they relate to reproductive potential. Each FMP must specify, to the extent possible, objective and measurable SDC as follows (see paragraphs (e)(2)(ii)(A) and
(B)of this section):
(A)*SDC to determine overfishing status.* Each FMP should describe which of the following two methods will be used for each stock or stock complex to determine an overfishing status. ( *1* ) *Fishing mortality rate exceeds MFMT.* Exceeding the MFMT for a period of 1 year or more constitutes overfishing. The MFMT or reasonable proxy may be expressed either as a single number (a fishing mortality rate or F value), or as a function of spawning biomass or other measure of reproductive potential. The MFMT must not exceed F <sup>msy</sup> . ( *2* ) *Catch exceeds the OFL.* Should the annual catch exceed the annual OFL for 1 year or more, the stock or stock complex is considered subject to overfishing.
(B)*SDC to determine overfished status.* The MSST or reasonable proxy should be expressed in terms of spawning biomass or other measure of reproductive potential. To the extent possible, the MSST should equal whichever of the following is greater: One-half the MSY stock size, or the minimum stock size at which rebuilding to the MSY level would be expected to occur within 10 years if the stock or stock complex were exploited at the MFMT specified under paragraph (e)(2)(ii)(A)( *1* ) of this section. Should the estimated size of the stock or stock complex in a given year fall below this threshold, the stock or stock complex is considered overfished.
(iii)*Relationship of SDC to environmental change.* Some short-term environmental changes can alter the size of a stock or stock complex without affecting its long-term reproductive potential. Long-term environmental changes affect both the short-term size of the stock or stock complex and the long-term reproductive potential of the stock or stock complex.
(A)If environmental changes cause a stock or stock complex to fall below its MSST without affecting its long-term reproductive potential, fishing mortality must be constrained sufficiently to allow rebuilding within an acceptable time frame (also see paragraph (j)(3)(ii) of this section). SDC should not be respecified.
(B)If environmental changes affect the long-term reproductive potential of the stock or stock complex, one or more components of the SDC must be respecified. Once SDC have been respecified, fishing mortality may or may not have to be reduced, depending on the status of the stock or stock complex with respect to the new criteria.
(C)If manmade environmental changes are partially responsible for a stock or stock complex being in an overfished condition, in addition to controlling fishing mortality, Councils should recommend restoration of habitat and other ameliorative programs, to the extent possible (see also the guidelines issued pursuant to section 305(b) of the Magnuson-Stevens Act for Council actions concerning essential fish habitat).
(iv)*Secretarial approval of SDC.* Secretarial approval or disapproval of proposed SDC will be based on consideration of whether the proposal:
(A)Has sufficient scientific merit;
(B)Contains the elements described in paragraph (e)(2)(ii) of this section;
(C)Provides a basis for objective measurement of the status of the stock or stock complex against the criteria; and
(D)Is operationally feasible.
(3)*Optimum yield* —(i) *Definitions* —(A) *Optimum yield (OY)* . Magnuson-Stevens Act section 3(33) defines “optimum,” with respect to the yield from a fishery, as the amount of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities and taking into account the protection of marine ecosystems; that is prescribed on the basis of the MSY from the fishery, as reduced by any relevant economic, social, or ecological factor; and, in the case of an overfished fishery, that provides for rebuilding to a level consistent with producing the MSY in such fishery. OY may be established at the stock or stock complex level, or at the fishery level.
(B)In NS1, use of the phrase “achieving, on a continuing basis, the optimum yield from each fishery” means producing, from each stock, stock complex, or fishery: A long-term series of catches such that the average catch is equal to the OY, overfishing is prevented, the long term average biomass is near or above Bmsy, and overfished stocks and stock complexes are rebuilt consistent with timing and other requirements of section 304(e)(4) of the Magnuson-Stevens Act and paragraph
(j)of this section.
(ii)*General.* OY is a long-term average amount of desired yield from a stock, stock complex, or fishery. The long-term objective is to achieve OY through annual achievement of ACT, which is described in paragraph
(f)of this section. An FMP must contain conservation and management measures to achieve OY, and provisions for information collection that are designed to determine the degree to which OY is achieved on a continuing basis—that is, to result in a long-term average catch equal to the long-term average OY, through an effective system of ACLs, ACTs, and AMs. These measures should allow for practical and effective implementation and enforcement of the management regime. The Secretary has an obligation to implement and enforce the FMP. If management measures prove unenforceable—or too restrictive, or not rigorous enough to prevent overfishing while achieving OY—they should be modified; an alternative is to reexamine the adequacy of the OY specification. Exceeding OY does not necessarily constitute overfishing. However, even if no overfishing resulted from exceeding OY, continual harvest at a level above OY would violate NS1, because OY was not achieved on a continuing basis. An FMP must contain an assessment and specification of OY, including a summary of information utilized in making such specification, consistent with requirements of section 303(a)(3) of the Magnuson-Stevens Act. A Council must identify those economic, social, and ecological factors relevant to management of a particular stock, stock complex, or fishery, then evaluate them to determine the OY. The choice of a particular OY must be carefully documented to show that the OY selected will produce the greatest benefit to the Nation and prevent overfishing.
(iii)*Determining the greatest benefit to the Nation.* In determining the greatest benefit to the Nation, the values that should be weighed and receive serious attention when considering the economic, social, or ecological factors used in reducing MSY to obtain OY are:
(A)The benefits of food production are derived from providing seafood to consumers; maintaining an economically viable fishery together with its attendant contributions to the national, regional, and local economies; and utilizing the capacity of the Nation's fishery resources to meet nutritional needs.
(B)The benefits of recreational opportunities reflect the quality of both the recreational fishing experience and non-consumptive fishery uses such as ecotourism, fish watching, and recreational diving. Benefits also include the contribution of recreational fishing to the national, regional, and local economies and food supplies.
(C)The benefits of protection afforded to marine ecosystems are those resulting from maintaining viable populations (including those of unexploited species), maintaining adequate forage for all components of the ecosystem, maintaining evolutionary and ecological processes (e.g., disturbance regimes, hydrological processes, nutrient cycles), maintaining the evolutionary potential of species and ecosystems, and accommodating human use.
(iv)*Factors to consider in OY specification.* Because fisheries have limited capacities, any attempt to maximize the measures of benefits described in paragraph (e)(3)(iii) of this section will inevitably encounter practical constraints. OY cannot exceed MSY in any circumstance and must take into account the need to prevent overfishing and rebuild overfished stocks and stock complexes. OY can be reduced to a value less than MSY based on social, economic, and ecological factors. To the extent possible, the relevant social, economic, and ecological factors used to establish OY for a stock, stock complex, or fishery should be quantified and reviewed in historical, short-term, and long-term contexts. Even where quantification of these factors is not possible, the FMP still must address these factors in its OY specification.
(A)*Social factors.* Examples are enjoyment gained from recreational fishing, avoidance of gear conflicts and resulting disputes, preservation of a way of life for fishermen and their families, and dependence of local communities on a fishery (e.g., involvement in fisheries and ability to adapt to change). Consideration may be given to fishery-related indicators (e.g., number of fishery permits, number of commercial fishing vessels, number of party and charter trips, landings, ex-vessel revenues etc.) and non-fishery related indicators (e.g., unemployment rates, percent of population below the poverty level, population density, etc.). Other factors that may be considered include the effects that past harvest levels have had on fishing communities, the cultural place of subsistence fishing, obligations under Indian treaties, proportions of affected minority and low-income groups, and worldwide nutritional needs.
(B)*Economic factors.* Examples are prudent consideration of the risk of overharvesting when a stock's size or reproductive potential is uncertain (see § 600.335(c)(2)(i)), satisfaction of consumer and recreational needs, and encouragement of domestic and export markets for U.S. harvested fish. Other factors that may be considered include the value of fisheries, the level of capitalization, the decrease in cost per unit of catch afforded by an increase in stock size, the attendant increase in catch per unit of effort, alternate employment opportunities, and economic contribution to fishing communities, coastal areas, affected states, and the nation.
(C)*Ecological factors.* Examples include impacts on ecosystem component species, forage fish stocks, other fisheries, predator-prey or competitive interactions, marine mammals, threatened or endangered species, and birds. Species interactions that have not been explicitly taken into account when calculating MSY should be considered as relevant factors for setting OY below MSY. In addition, consideration should be given to managing forage stocks for higher biomass than B <sup>msy</sup> to enhance and protect the marine ecosystem. Also important are ecological or environmental conditions that stress marine organisms, such as natural and manmade changes in wetlands or nursery grounds, and effects of pollutants on habitat and stocks.
(v)*Specification of OY.* The specification of OY must be consistent with preventing overfishing and should be reduced from MSY to account for scientific uncertainty in calculating MSY, and economic, social, and ecological factors such as those described in paragraph (e)(3)(iv) of this section. If the estimates of MFMT and current biomass are known with a high level of certainty and management controls can accurately limit catch to the ACT then OY could be set very close to MSY. To the degree that such MSY estimates and management controls are lacking or unavailable, OY should be set farther from MSY. In order to achieve OY in the long term, catch targets (i.e., ACT) should be set below catch limits (i.e., ACLs) based on the degree of management control so that average catch (or average ACT) approximates OY (see paragraph (f)(6) of this section). If management measures cannot adequately control fishing mortality so that the specified OY can be achieved without overfishing, the Council should reevaluate the management measures and specification of OY so that the dual requirements of NS1 (preventing overfishing while achieving, on a continuing basis, OY) are met.
(A)The amount of fish that constitutes the OY should be expressed in terms of numbers or weight of fish. As a long-term average, OY cannot exceed MSY.
(B)Either a range or a single value may be specified for OY. Specification of a numerical, fixed-value OY does not preclude use of ACTs that vary with stock size or management precision. For example, an ACT control rule (described in paragraph (f)(6) of this section) might prescribe a smaller ACT if there is less management precision.
(C)All catch must be counted against OY, including that resulting from bycatch, scientific research, and all fishing activities.
(D)The OY specification should be translatable into an annual numerical estimate for the purposes of establishing any total allowable level of foreign fishing (TALFF) and analyzing impacts of the management regime.
(E)The determination of OY is based on MSY, directly or through proxy. However, even where sufficient scientific data as to the biological characteristics of the stock do not exist, or where the period of exploitation or investigation has not been long enough for adequate understanding of stock dynamics, or where frequent large-scale fluctuations in stock size diminish the meaningfulness of the MSY concept, OY must still be established based on the best scientific information available.
(F)An OY established at a fishery level may not exceed the sum of the MSY values for each of the stocks or stock complexes within the fishery. If OY is specified at a fishery level, the sum of the ACTs for the stocks and stock complexes in the fishery should approximate OY.
(G)There should be a mechanism in the FMP for periodic reassessment of the OY specification, so that it is responsive to changing circumstances in the fishery.
(H)Part of the OY may be held as a reserve to allow for factors such as uncertainties in estimates of stock size and domestic annual harvest (DAH). If an OY reserve is established, an adequate mechanism should be included in the FMP to permit timely release of the reserve to domestic or foreign fishermen, if necessary.
(vi)*OY and foreign fishing.* Section 201(d) of the Magnuson-Stevens Act provides that fishing by foreign nations is limited to that portion of the OY that will not be harvested by vessels of the United States. The FMP must include an assessment to address the following, as required by section 303(a)(4) of the Magnuson-Stevens Act:
(A)*DAH.* Councils and/or the Secretary must consider the capacity of, and the extent to which, U.S. vessels will harvest the OY on an annual basis. Estimating the amount that U.S. fishing vessels will actually harvest is required to determine the surplus.
(B)*Domestic annual processing (DAP)* . Each FMP must assess the capacity of U.S. processors. It must also assess the amount of DAP, which is the sum of two estimates: The estimated amount of U.S. harvest that domestic processors will process, which may be based on historical performance or on surveys of the expressed intention of manufacturers to process, supported by evidence of contracts, plant expansion, or other relevant information; and the estimated amount of fish that will be harvested by domestic vessels, but not processed (e.g., marketed as fresh whole fish, used for private consumption, or used for bait).
(C)*Joint venture processing (JVP).* When DAH exceeds DAP, the surplus is available for JVP.
(f)*Acceptable biological catch, annual catch limits, and annual catch targets.* The following features (see paragraphs (f)(1) through (f)(7) of this section) of acceptable biological catch, annual catch limits, and annual catch targets apply to stocks and stock complexes in the fishery (see paragraph (d)(2) of this section).
(1)*Introduction.* A control rule is a policy for establishing a limit or target fishing level that is based on the best available scientific information and is established by fishery managers in consultation with fisheries scientists. Control rules should be designed so that management actions become more conservative as biomass estimates, or other proxies, for a stock or stock complex decline and as science and management uncertainty increases. Paragraph
(f)of this section describes a three-step approach for setting limits and targets so as to ensure a low risk of overfishing while achieving, on a continuing basis, OY: First, ABC is set below the OFL to account for scientific uncertainty in calculating the OFL; second, ACL is set at an amount not to exceed the ABC; and third, ACT is set at an amount not to exceed the ACL to account for management uncertainty in controlling a fishery's actual catch.
(2)*Definitions.*
(i)*Catch* is the total quantity of fish, measured in weight or numbers of fish, taken in commercial, recreational, subsistence, tribal, and other fisheries. Catch includes fish that are retained for any purpose, as well as mortality of fish that are discarded.
(ii)*Acceptable biological catch (ABC)* is a level of a stock or stock complex's annual catch that accounts for the scientific uncertainty in the estimate of OFL and should be specified based on the ABC control rule.
(iii)*ABC control rule* means a specified approach to setting the ABC for a stock or stock complex as a function of the scientific uncertainty in the estimate of OFL.
(iv)*Annual catch limit (ACL)* is the level of annual catch of a stock or stock complex that serves as the basis for invoking AMs. ACL cannot exceed the ABC, but may be divided into sector-ACLs (see paragraph (f)(5) of this section).
(v)*Annual catch target (ACT)* is an amount of annual catch of a stock or stock complex that is the management target of the fishery. A stock or stock complex's ACT should usually be less than its ACL and results from the application of the ACT control rule. If sector-ACLs have been established, each one should have a sector-ACT.
(vi)*ACT control rule* means a specified approach to setting the ACT for each stock or stock complex such that the risk of exceeding the ACL due to management uncertainty is at an acceptably low level.
(3)*Specification of ABC.* ABC may not exceed OFL (see paragraph (e)(2)(i)(D) of this section) and is recommended to be reduced from OFL to account for scientific uncertainty in the estimate of OFL. Councils should develop a process for receiving scientific information and advice used to establish ABC. This process should: Establish an ABC control rule, identify the body that will apply the ABC control rule (i.e., calculates the ABC), identify the review process that will verify the resulting ABC, and confirm that the SSC recommends the ABC to the Council. For Secretarial FMPs or FMP amendments, agency scientists or a peer review process would provide the scientific advice to establish ABC. For internationally-assessed stocks, an ABC as defined in these guidelines is not required.
(i)*Expression of ABC.* ABC should be expressed in terms of catch, but may be expressed in terms of landings as long as estimates of bycatch and any other fishing mortality not accounted for in the landings are incorporated into the determination of ABC.
(ii)*ABC for overfished stocks.* For overfished stocks and stock complexes, a rebuilding ABC must be set to reflect the annual catch that is consistent with the target fishing mortality rates in the rebuilding plan.
(4)*ABC control rule.* For stocks and stock complexes required to have an ABC, each Council should establish an ABC control rule based on scientific advice from its SSC. The process of establishing an ABC control rule could also involve science advisors or the peer review process established under Magnuson-Stevens Act section 302(g)(1)(E). The ABC control rule should clearly articulate how far below the OFL, or OFL proxy, the ABC will be set based on the level of scientific knowledge about the stock or stock complex and the scientific uncertainty in the estimate of OFL. The ABC control rule should take into account uncertainty in factors such as stock assessment results, time lags in updating assessments, the degree of retrospective revision of assessment results, and projections. The control rule may be used in a tiered approach to address different levels of scientific uncertainty.
(5)*Setting the annual catch limit* —(i) *General.* ACL cannot exceed the ABC and may be set annually or on a multiyear plan basis. A “multiyear plan” as referenced in section 303(a)(15) of the Magnuson-Stevens Act is a plan that establishes harvest specifications or harvest guidelines for each year of a time period greater than 1 year. A multiyear plan should include ACLs and ACTs for each year with appropriate AMs to prevent overfishing and maintain an appropriate rate of rebuilding if the stock or stock complex is in a rebuilding plan. The AMs specified for a multiyear plan should provide that, if an ACL is exceeded for a year, then a subsequent year's harvest specification (including ACLs and ACTs) could be revised.
(ii)*Sector ACLs.* A Council may, but is not required to, divide an ACL into sector-ACLs. “Sector,” for purposes of this section, means a distinct user group to which separate management strategies and separate catch quotas apply. Examples of sectors include the commercial sector, recreational sector, or various gear groups within a fishery. Sector-AMs must be developed for each sector-ACL, and the sum of sector ACLs must not exceed the stock or stock complex level ACL. The system of ACLs and AMs designed must be effective and equitable and protect the stock or stock complex as a whole. If sector-ACLs and AMs are established, additional AMs at the stock or stock complex level would also be appropriate.
(iii)*ACLs for State-Federal Fisheries.* For stocks or stock complexes that have a large majority of harvest in state or territorial waters, FMPs and FMP amendments should include an ACL for the overall stock that may be further divided. For example, the overall ACL could be divided into a federal-ACL and state-ACL. However, NMFS recognizes that federal management would be limited to the portion of the fishery under federal authority (see paragraph (g)(5) of this section). When stocks are co-managed by federal, state, tribal, and/or territorial fishery managers, the goal should be to develop collaborative conservation and management strategies, and scientific capacity to support such strategies, to prevent overfishing of shared stocks and ensure their sustainability.
(6)*ACT control rule.* For stocks and stock complexes required to have an ACL, each Council should establish ACT control rules for setting the ACTs. The ACT control rule should clearly articulate how far below the ACL the target will be established based on the amount of management uncertainty associated with harvest of a stock or stock complex. For example, the ACT may need to be set further below the ACL in fisheries where inseason monitoring of catch data is unavailable or infeasible, or where AMs are established using a multi-year averaging approach (see paragraph (g)(4) of this section).
(i)*Determining management uncertainty.* Two sources of management uncertainty should be accounted for in establishing the ACT control rule: Uncertainty in the ability of managers to constrain catch to the ACT and uncertainty in quantifying the true catch amounts (i.e., estimation errors). To determine the level of management uncertainty in controlling catch, analyses should consider past management performance in the fishery and factors such as time lags in reported catch. Such analyses should be based on the best available scientific information from an SSC, agency scientists, or peer review process as appropriate.
(ii)*Establishing tiers and corresponding ACT control rules.* Tiers can be established based on levels of management uncertainty associated with the fishery, frequency and accuracy of catch monitoring data available, and risks of exceeding the limit. An ACT control rule could be established for each tier and have, as appropriate, different formulas and standards used to establish the ACT.
(7)*Relationships of OFL to MSY and ACT to OY.* The following (see paragraphs (f)(7)(i) and
(ii)of this section) describes the relationships between terms used in ending and preventing overfishing and rebuilding overfished stocks and stock complexes.
(i)*Relationship of OFL to MSY.* OFL is the amount of catch for a particular year that corresponds to the estimate of MFMT applied to a stock or stock complex's abundance, and MSY is the long-term average of such catches. ABC is recommended to be set below OFL to take into account the scientific uncertainty in the estimate of OFL.
(ii)*Relationship of ACT to OY.* Paragraphs
(a)and (e)(3) of this section define and describe OY and the goal of preventing overfishing, while achieving on a continuing basis the OY from each stock, stock complex, or fishery. Management measures for a fishery should, on an annual basis, achieve the ACTs and prevent the ACLs from being exceeded. The long-term objective is to achieve OY through annual achievement of ACT.
(g)*Accountability measures.* The following features (see paragraphs (g)(1) through
(5)of this section) of accountability measures apply to those stocks and stock complexes in the fishery.
(1)*Introduction.* AMs are management controls that prevent ACLs or sector-ACLs from being exceeded (inseason AMs), where possible, and correct or mitigate overages if they occur. AMs should address and minimize both the frequency and magnitude of overages and correct the problems that caused the overage in as short a time as possible.
(2)*Inseason AMs.* Whenever possible, FMPs should include inseason monitoring and management measures to prevent catch from exceeding ACLs. Inseason AMs could include, but are not limited to, closure of a fishery; closure of specific areas; changes in gear; changes in trip size or bag limits; reductions in effort; or other appropriate management controls for the fishery. If final data or data components of catch are delayed, Councils should make appropriate use of preliminary data, such as landed catch, in implementing inseason AMs. Where timely catch data are available for a stock, FMPs should include inseason closure authority to close the fishery on or before the date when the ACL for a stock or stock complex is projected to be reached.
(3)*AMs for when the ACL is exceeded.* On an annual basis, the Council should determine as soon as possible after the fishing year if an ACL was exceeded. If an ACL was exceeded, AMs should be triggered and implemented as soon as possible to correct the operational issue that caused the ACL overage, as well as any biological consequences to the stock or stock complex resulting from the overage when it is known. These AMs could include, among other things, modifications of inseason AMs or overage adjustments. For stocks and stock complexes in rebuilding plans, the AMs should include overage adjustments that reduce the ACLs in the next fishing year by the full amount of the overages, unless the best scientific information available shows that a reduced overage adjustment, or no adjustment is needed to mitigate the effects of the overages. If catch exceeds the ACL more than once in the last four years, the system of ACLs, ACTs and AMs should be re-evaluated to improve its performance and effectiveness.
(4)*AMs based on multi-year average data.* Some fisheries have highly variable annual catches and lack reliable inseason or annual data on which to base AMs. If there are insufficient data upon which to compare catch to ACL, either inseason or on an annual basis, AMs could be based on comparisons of average catch to average ACL over a three-year moving average period or, if supported by analysis, some other appropriate multi-year period. Evaluation of the moving average catch to the average ACL must be conducted annually. If the average catch exceeds the average ACL more than once in the last four years, then the ACL, ACT and AM system should be re-evaluated. The initial ACL and management measures should incorporate information from previous years so that AMs based on average ACLs can be applied from the first year.
(5)*AMs for State-Federal Fisheries.* For stocks or stock complexes that have a large majority of harvest in state or territorial waters, AMs should be developed for the portion of the fishery under federal authority and could include closing the EEZ when the federal portion of the ACL is reached, or the overall stock's ACL is reached, or other measures.
(h)*Establishing ACL and AM mechanisms in FMPs.* FMPs or FMP amendments should establish ACL and AM mechanisms for all stocks and stock complexes in the fishery, unless paragraph (h)(2) of this section is applicable. If a complex has multiple indicator stocks, each indicator stock must have its own ACL; an additional ACL for the stock complex as a whole is optional. In cases where fisheries harvest multiple indicator stocks of a single species that cannot be distinguished at the time of capture, separate ACLs for the indicator stocks are not required and the ACL can be established for the complex as a whole.
(1)In establishing ACL and AM mechanisms, FMPs should describe:
(i)Timeframes for setting ACLs (e.g., annually or multi-year periods);
(ii)Sector-ACLs, if any (including set-asides for research or bycatch);
(iii)AMs and their relationship to ABC and ACT control rules, including how AMs are triggered and what sources of data will be used (e.g., inseason data, annual catch compared to the ACL, or multi-year averaging approach);
(iv)Sector-AMs, if there are sector-ACLs; and
(v)Fisheries data described in paragraph
(i)of this section.
(2)*Exceptions from ACL and AM requirements* —(i) *Life cycle.* Section 303(a)(15) of the Magnuson-Stevens Act “shall not apply to a fishery for species that has a life cycle of approximately 1 year unless the Secretary has determined the fishery is subject to overfishing of that species' (as described in Magnuson-Stevens Act section 303 note). This exception applies to a stock for which the average length of time it takes for an individual to produce a reproductively active offspring is approximately 1 year and that the individual has only one breeding season in its life time. While exempt from the ACL and AM requirements, FMPs or FMP amendments for these stocks should have SDC, MSY, OY, ABC, and an ABC control rule.
(ii)*International fishery agreements.* Section 303(a)(15) of the Magnuson-Stevens Act applies “unless otherwise provided for under an international agreement in which the United States participates'' (Magnuson-Stevens Act section 303 note). This exception applies to stocks or stock complexes subject to management under an international agreement, which is defined as “any bilateral or multilateral treaty, convention, or agreement which relates to fishing and to which the United States is a party” (see Magnuson-Stevens Act section 3(24)). These stocks would still need to have SDC and MSY.
(3)*Flexibility in application of NS1 guidelines.* There are limited circumstances that may not fit the standard approaches to specification of reference points and management measures set forth in these guidelines. These include, among other things, conservation and management of ESA-listed species, harvests from aquaculture operations, and stocks with unusual life history characteristics (e.g., Pacific salmon, where the spawning potential for a stock is spread over a multi-year period). In these circumstances, Councils may propose alternative approaches for satisfying the NS1 requirements of the Magnuson-Stevens Act than those set forth in these guidelines. Councils should document their rationale for any alternative approaches for these limited circumstances in an FMP or FMP amendment, which will be reviewed for consistency with the Magnuson-Stevens Act.
(i)*Fisheries data.* In their FMPs, Councils should describe general data collection methods, as well as any specific data collection methods used for all stocks, stock complexes, and ecosystem component species. FMPs should:
(1)List sources of fishing mortality (both landed and discarded), including commercial and recreational catch and bycatch in other fisheries;
(2)Describe the data collection and estimation methods used to quantify total catch mortality in each fishery, including information on the management tools used (i.e., logbooks, vessel monitoring systems, observer programs, landings reports, fish tickets, processor reports, dealer reports, recreational angler surveys, or other methods); the frequency with which data are collected and updated; and the scope of sampling coverage for each fishery; and
(3)Describe the methods used to compile catch data from various catch data collection methods and how those data are used to determine the relationship between total catch at a given point in time and the ACL for stocks and stock complexes that are part of a fishery.
(j)*Council actions to address overfishing and rebuilding for stocks and stock complexes in the fishery* —(1) *Notification.* The Secretary will immediately notify a Council whenever it is determined that:
(i)Overfishing is occurring;
(ii)A stock or stock complex is overfished;
(iii)A stock or stock complex is approaching an overfished condition; or
(iv)Existing remedial action taken for the purpose of ending previously identified overfishing or rebuilding a previously identified overfished stock or stock complex has not resulted in adequate progress.
(2)*Timing of actions* —(i) *If a stock or stock complex is undergoing overfishing.* FMPs or FMP amendments should establish ACL and AM mechanisms in 2010, for stocks and stock complexes determined to be subject to overfishing, and in 2011, for all other stocks and stock complexes (see paragraph (b)(2)(iii) of this section). To address practical implementation aspects of the FMP and FMP amendment process, paragraphs (j)(2)(i)(A) through
(C)of this section clarifies the expected timing of actions.
(A)In addition to establishing ACL and AM mechanisms, the ACLs and AMs themselves should be specified in FMPs, FMP amendments, implementing regulations, or annual specifications beginning in 2010 or 2011, as appropriate.
(B)For stocks and stock complexes still determined to be subject to overfishing at the end of 2008, ACL and AM mechanisms and the ACLs and AMs themselves should be effective in fishing year 2010.
(C)For stocks and stock complexes determined to be subject to overfishing during 2009, ACL and AM mechanisms and ACLs and AMs themselves should be effective in fishing year 2010, if possible, or in fishing year 2011, at the latest.
(ii)*If a stock or stock complex is overfished or approaching an overfished condition.*
(A)For notifications that a stock or stock complex is overfished or approaching an overfished condition made before July 12, 2009, a Council must prepare an FMP, FMP amendment, or proposed regulations within one year of notification. If the stock or stock complex is overfished, the purpose of the action is to specify a time period for ending overfishing and rebuilding the stock or stock complex that will be as short as possible as described under section 304(e) of the Magnuson-Stevens Act. If the stock or stock complex is approaching an overfished condition, the purpose of the action is to prevent the biomass from declining below the MSST.
(B)For notifications that a stock or stock complex is overfished made after July 12, 2009, a Council must prepare an FMP, FMP amendment, or proposed regulations within two years of notification. Council actions should be submitted for Secretarial review within 15 months of notification to ensure sufficient time for the Secretary to implement the measures, if approved. If the stock or stock complex is overfished and overfishing is occurring, the rebuilding plan must end overfishing immediately and be consistent with ACL and AM requirements of the Magnsuon-Stevens Act.
(C)For notifications that a stock or stock complex is approaching an overfished condition made after July 12, 2009, a Council should take immediate action to reduce the likelihood that the stock or stock complex will become overfished. Otherwise, the stock or stock complex would likely be overfished by the time the two-year timeline to implement management measures expired.
(3)*Overfished fishery.*
(i)Where a stock or stock complex is overfished, a Council must specify a time period for rebuilding the stock or stock complex based on factors specified in Magnuson-Stevens Act section 304(e)(4). This target time for rebuilding (T <sup>target</sup> ) shall be as short as possible, taking into account: The status and biology of any overfished stock, the needs of fishing communities, recommendations by international organizations in which the U.S. participates, and interaction of the stock within the marine ecosystem. In addition, the time period shall not exceed 10 years, except where biology of the stock, other environmental conditions, or management measures under an international agreement to which the U.S. participates dictate otherwise. SSCs (or agency scientists or peer review processes in the case of Secretarial actions) shall provide recommendations for achieving rebuilding targets (see Magnuson-Stevens Act section 302(g)(1)(B)). The above factors enter into the specification of T <sup>target</sup> as follows:
(A)The “minimum time for rebuilding a stock” (T <sup>min</sup> ) means the amount of time the stock or stock complex is expected to take to rebuild to its MSY biomass level in the absence of any fishing mortality. In this context, the term “expected” means to have at least a 50-percent probability of attaining the B <sup>msy</sup> .
(B)For scenarios under paragraph (j)(2)(ii)(A) of this section, the starting year for the T <sup>min</sup> calculation is the first year that a rebuilding plan is implemented. For scenarios under paragraph (j)(2)(ii)(B) of this section, the starting year for the T <sup>min</sup> calculation is 2 years after notification that a stock or stock complex is overfished or the first year that a rebuilding plan is implemented, whichever is sooner.
(C)If T <sup>min</sup> for the stock or stock complex is 10 years or less, then the maximum time allowable for rebuilding (T <sup>max</sup> ) that stock to its B <sup>msy</sup> is 10 years.
(D)If T <sup>min</sup> for the stock or stock complex exceeds 10 years, then the maximum time allowable for rebuilding a stock or stock complex to its B <sup>msy</sup> is T <sup>min</sup> plus the length of time associated with one generation time for that stock or stock complex. “Generation time” is the average length of time between when an individual is born and the birth of its offspring.
(E)T <sup>target</sup> shall not exceed T <sup>max</sup> , should generally be less than T <sup>max</sup> , and should be calculated based on the factors described in this paragraph (j)(3) with a priority given to rebuilding in as short a time as possible.
(ii)If a stock or stock complex reached the end of its rebuilding plan period and has not yet been determined to be rebuilt, then the rebuilding F should not be increased until the stock or stock complex has been demonstrated to be rebuilt. If the rebuilding plan was based on a T <sup>target</sup> that was less than T <sup>max</sup> , and the stock or stock complex is not rebuilt by T <sup>target</sup> , rebuilding measures should be revised, if necessary, such that the stock or stock complex will be rebuilt by T <sup>max</sup> . If the stock or stock complex has not rebuilt by T <sup>max</sup> , and the rebuilding F is greater than 75 percent of MFMT, then the rebuilding F should be reduced to no more than 75 percent of MFMT until the stock or stock complex has been demonstrated to be rebuilt.
(iii)Council action addressing an overfished fishery must allocate both overfishing restrictions and recovery benefits fairly and equitably among sectors of the fishery.
(iv)For fisheries managed under an international agreement, Council action addressing an overfished fishery must reflect traditional participation in the fishery, relative to other nations, by fishermen of the United States.
(4)*Emergency actions and interim measures.* The Secretary, on his/her own initiative or in response to a Council request, may implement interim measures to reduce overfishing or promulgate regulations to address an emergency (Magnuson-Stevens Act section 304(e)(6) or 305(c)). In considering a Council request for action, the Secretary would consider, among other things, the need for and urgency of the action and public interest considerations, such as benefits to the stock or stock complex and impacts on participants in the fishery.
(i)These measures may remain in effect for not more than 180 days, but may be extended for an additional 186 days if the public has had an opportunity to comment on the measures and, in the case of Council-recommended measures, the Council is actively preparing an FMP, FMP amendment, or proposed regulations to address the emergency or overfishing on a permanent basis.
(ii)Often, these measures need to be implemented without prior notice and an opportunity for public comment, as it would be impracticable to provide for such processes given the need to act quickly and also contrary to the public interest to delay action. However, emergency regulations and interim measures that do not qualify for waivers or exceptions under the Administrative Procedure Act would need to follow proposed notice and comment rulemaking procedures.
(k)*International overfishing.* If the Secretary determines that a fishery is overfished or approaching a condition of being overfished due to excessive international fishing pressure, and for which there are no management measures (or no effective measures) to end overfishing under an international agreement to which the United States is a party, then the Secretary and/or the appropriate Council shall take certain actions as provided under Magnuson-Stevens Act section 304(i). The Secretary, in cooperation with the Secretary of State, should immediately take appropriate action at the international level to end the overfishing. In addition, within one year after the determination, the Secretary and/or appropriate Council shall:
(1)Develop recommendations for domestic regulations to address the relative impact of the U.S. fishing vessels on the stock. Council recommendations should be submitted to the Secretary.
(2)Develop and submit recommendations to the Secretary of State, and to the Congress, for international actions that will end overfishing in the fishery and rebuild the affected stocks, taking into account the relative impact of vessels of other nations and vessels of the United States on the relevant stock. Councils should, in consultation with the Secretary, develop recommendations that take into consideration relevant provisions of the Magnuson-Stevens Act and NS1 guidelines, including section 304(e) of the Magnuson-Stevens Act and paragraph (j)(3)(iv) of this section, and other applicable laws. For highly migratory species in the Pacific, recommendations from the Western Pacific, North Pacific, or Pacific Councils must be developed and submitted consistent with Magnuson-Stevens Reauthorization Act section 503(f), as appropriate.
(3)*Considerations for assessing “relative impact.”* “Relative impact” under paragraphs (k)(1) and
(2)of this section may include consideration of factors that include, but are not limited to: Domestic and international management measures already in place, management history of a given nation, estimates of a nation's landings or catch (including bycatch) in a given fishery, and estimates of a nation's mortality contributions in a given fishery. Information used to determine relative impact should be based upon the best available scientific information.
(l)*Relationship of National Standard 1 to other national standards* —(1) *National Standard 2 (see § 600.315).* Management measures and reference points to implement NS1 must be based on the best scientific information available. When data are insufficient to estimate reference points directly, Councils should develop reasonable proxies to the extent possible (also see paragraph (e)(1)(iv) of this section). In cases where scientific data are severely limited, effort should also be directed to identifying and gathering the needed data. SSCs should advise their Councils regarding the best scientific information available for fishery management decisions.
(2)*National Standard 3 (see § 600.320).* Reference points should generally be specified in terms of the level of stock aggregation for which the best scientific information is available (also see paragraph (e)(1)(iii) of this section). Also, scientific assessments should be based on the best information about the total range of the stock and potential biological structuring of the stock into biological sub-units, which may differ from the geographic units on which management is feasible.
(3)*National Standard 6 (see § 600.335).* Councils must build into the reference points and control rules appropriate consideration of risk, taking into account uncertainties in estimating harvest, stock conditions, life history parameters, or the effects of environmental factors.
(4)*National Standard 8 (see § 600.345).* Councils must take into account the importance of fishery resources to fishing communities when specifying OY and an ACT control rule. Also, see paragraph (e)(3)(iv)(A) of this section for more information on how factors that relate to fishing communities should be considered when reducing OY from MSY.
(5)*National Standard 9 (see § 600.350).* Evaluation of stock status with respect to reference points must take into account mortality caused by bycatch. In addition, the estimation of catch should include the mortality of fish that are discarded.
(m)*Exceptions to requirements to prevent overfishing.* Exceptions to the requirement to prevent overfishing could apply under certain limited circumstances. Harvesting one stock at its optimum level may result in overfishing of another stock when the two stocks tend to be caught together (This can occur when the two stocks are part of the same fishery or if one is bycatch in the other's fishery). Before a Council may decide to allow this type of overfishing, an analysis must be performed and the analysis must contain a justification in terms of overall benefits, including a comparison of benefits under alternative management measures, and an analysis of the risk of any stock or stock complex falling below its MSST. The Council may decide to allow this type of overfishing if the analysis demonstrates that all of the following conditions are satisfied:
(1)Such action will result in long-term net benefits to the Nation;
(2)Mitigating measures have been considered and it has been demonstrated that a similar level of long-term net benefits cannot be achieved by modifying fleet behavior, gear selection/configuration, or other technical characteristic in a manner such that no overfishing would occur; and
(3)The resulting rate of fishing mortality will not cause any stock or stock complex to fall below its MSST more than 50 percent of the time in the long term, although it is recognized that persistent overfishing is expected to cause the affected stock to fall below its Bmsy more than 50 percent of the time in the long term. [FR Doc. 08-1328 Filed 6-4-08; 9:34am]
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